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Property I
Rutgers University, Newark School of Law
Hernandez, Tonya K.

I.      FIRST POSSESSION – Acquisition by Discovery, Capture, or Creation
A.      Discovery
Two foundational principles which we still see today
1.        First In Time…first in right
2.        Actual Possession as ownership. Purchase is a secondary form of possession…who possessed it first to be able to sell it?

B.      Capture – Wild Animals (ferae naturae)

1)       Courts view of Possession:
1.        Some intention to possess
2.        Some physical relationship (actual capture or mortal wounding)

Ø       Rule of Capture – possession is the means of acquiring title to the property by:
1.        First person to take actual physical possession (Manucaption) has title
a.        Mere pursuit is not enough
2.        Mortally wounding or Trapping animal so that capture is absolutely/virtualy certain (depriving it of its natural liberty).
a.        Not considered captured until door snapped shut or net has been closed.

Ø       Reasons for use of Rule of Capture
o Public Policy – Rule promotes killing – social Benefits for these vermin to be captured/killed
o Judicial Economy – To reward the Captor is objective – anyone could say they were in pursuit but only one could capture.
o Labor Theory – still applies but more the efficient use of labor…rewards those who actually captured the animal.

2)       Malicious Interference of Trade

Theory of Malicious Interference of Trade
Ø       Violent and Malicious acts done to a person’s occupation/livelihood are not permitted
Ø       If damage to occupation was caused by use of tactics in the same profession in the name of competition, there is no action for damages

3)       Ratione Soli – Wild Animals on owners land
Ø        Landowners are regarded as first possessor while animals still on land
o        Landowners have constructive possession as opposed to actual possession
o        E.g., Even if a trespasser is first to capture an animal on an owners land, the owner is considered to have constructive possession first.
o        American courts reject this view; here, a landowner owns no rights in wild animals on her land. However, because an owner may bar hunters and others from trespassing on her land, this gives an American landowner the exclusive opportunity to capture wild animals on the land, subject of course to hunting laws. From Lexis – not taught in class.

4)       Miscellaneous Issues/Theories

Ø       Qualified Issues of Ownership – once property ownership has been determined in the wild animal, that property right is qualified and not absolute. 
–    If the animal returns/escapes to its natural habitat…it’s not yours anymore once it returns to the Commons. It eviscerates your prior claim as property owner.  
·         Except 1– If you have an animal known to have a propensity to return (Animus Revertendi) (like a falcon, deer), then the wild animals escape does not eviscerate your claim
–          Domesticated animals are valuable to society and the effort to tame them is rewarded.
·         Except 2– If animal non-nati

– Where A, an innocent trespasser, adds labor and materials to raw materials owned by B, final product is awarded to the owner of the primary material.

2)       Intellectual Property
Ø       Creation of property (intangible property):
·   How long can you retain a monopoly to keep others encroaching on your intangible property
·   How much is such a creation separate and apart from the commons domain of ideas
Ø       Patents – 20 yrs – cannot be given for naturally occurring conditions/organisms
Ø       Trademark – A trademark is a word, name, symbol, or device used to identify and distinguish the products of a particular manufacturer or retailer
Ø       Copyright – Federal copyright law protects rights in original books, articles, songs, paintings, and related artistic creations that are original and “fixed” in tangible, physical form. New works receive copyright protection for the author’s life, plus 70 years after her death. However, there are a number of exceptions to the scope of copyright protection.

3)       Unfair Competition

4)       Common Law – (copy cats)
Ø       Common law default rule – encourages copying
To avoid monopolies and encourage competition, CL generally allows copying and imitation.