Select Page

Property II
Rutgers University, Newark School of Law
Bergelson, Vera

Property: A bundle of rights; the right to possess, the right to use, the right to exclude, and the right to transfer.

I. Possession and Ownership

1. Acquisition by Capture

Rule of Capture (first in time): the first person to take possession of a thing owns it.

If wild animals (ferae naturae) are captured, they belong to their captor. But Capture is required, chasing the animal is not enough.
Wounded or trapped animals : if an animal has been mortally wounded or trapped so that capture is practically certain, it is treated as captured.

Pierson v. Post pg. 19 (While Post was chasing a fox, and Pierson killed the fox and claimed it as his own. Found in favor of defendant) (to find for plaintiff would not be in the interest of public good: b/c subject would be a matter of much litigation)

2. Acquisition by Creation

General Rule: a person can acquire property by creating it. The purpose is to reward labor, but this is subject to qualification.

Common Law:

Intellectual Property: (attempting to balance the interests in creativity and rewarding labor, without creating monopolies and stifling creativity in others)
Cheney Brothers v. Doris Silk Corp. pg. 60 (defendant knowingly copied a silk pattern from the plaintiffs; found for defendant) To encourage competition and avoid monopoly, common law allows for copying and imitation.
Smith v. Chanel Inc. pg. 63 (Smith claimed that their product was the equivalent of Chanel #5 (which was unpatented) . Court held for Smith) The copier serves an important public interest by offering comparable goods at lower prices.

Limited Exceptions:

Unfair Competition: International News Service v. Associated Press (INS copied news gathered by AP. Court held for AP) AP has a quasi-property interest in news it has gathered and can prohibit competitors from disseminating the such news until its commercial value as news has passed away.


Copyright and patent laws have been enacted by Congress to solve the dilemma of how much protection to give creativity. Patents and copyrights are limited in time. A person cannot copyright and idea, but can copyright the expression of it.

These grant limited monopolies in order to encourage productive incentives, but limited ones in order to promote competition.

Persona as Property: A celebrity’s “right of publicity” is recognized as a property interest, assignable during life, and descendible at death. This interest includes name, likeness, and other aspects of one’s identity. Midler v. Ford Motor Co. pg. 64 (Court awarded plaintiff damages when defendant used a voice intended to sound like plaintiff’s in an ad)

Protection of this right provides an economic incentive to make investments in activities valued by the public.

Rights in Body Products: Moore v. Regents of University of California pg. 66 (plaintiff’s cells were used to create a profitable cell line; held for defendant) A person does not have a property right in their organs…thus the doctors that created the cell line acquired original ownership. There was no conversion (wrongful exercise of property rights over the personal property of another). The cell line was factually and legally distict from the cells taken from Moore’s body…and the patent rewarded the “inventive effort.”

Issues of privacy and dignity are covered under fiduciary-duty and informed-consent theories (tort claims). The property issue is completely separate.

The court was concerned with making body products property that could be sold, however, transferability is not an essential characteristic of property. (Although most property is freely transferable, some property is not transferable [i.

physical control over the item and have intent to assume dominion over it.

The meaning of true owner is contingent on who the other claimants are.

Trover: a common law action for money damages resulting from the defendant’s conversion to his own use of a chattel owned or possessed by the plaintiff. The plaintiff waives his right to have the item returned and insists that the defendant be subjected to a forced purchase of the chattel from him.

Bailment: the rightful possession of goods by a person (the bailee) who is not the owner.

Voluntary Bailment: occurs when the owner of the goods (the bailor) gives possession to the bailee, as when you leave your clothes to be dry cleaned, or have a ring sized.

Involuntary Bailment: in the case of found goods the bailment is involuntary from the standpoint of the owner but not from that of the finder, who has chosen to take possession; by doing so, the finder assumes the role of the bailee.

Different standards of care are imputed to each, traditionally: a finder having standard of minimal care, and a dry cleaner for example, having a greater standard of care. The modern view holds that an ordinary negligence standard applies across the board.
In voluntary bailment situations the courts usually bar an action by the true owner against the present possessor if the bailee has recovered damages from the present possessor. The wrongdoer, having once paid full damages to the bailee, has an answer to any action by the bailor.