Property I Outline

Property Outline

Spring 2012

Professor Godsil

1. POSSESSION AND OWNERSHIP

I. Becoming a Property Owner Through Possession

A. Acquisition by Discovery

a. General Principles

· Discovery

o Title to land exists where one entity finds, claims, and possesses the land and gives exclusive right to extinguish right of occupancy in the previous occupiers, by purchase or by conquest

· “First in time”

o Common law principle that being first to occupy land justifies ownership rights.

o Exception: Only applied to Christian Europeans

o Justifying ownership rights

§ Because greed eventually led to scarcity, the institution of private property became necessary to preserve peace

§ Prevent chaos, which promotes security and stability

· Occupancy

o Native Americans only had the right to occupy the land, but did not possess title and thus did not have the right to transfer the land, even though they were there first.

· Conquest

o The rights of the conquered people should remain unimpaired even though discovery gave Christian peoples an exclusive right to extinguish the Indian title of occupancy

o Respect private ownership unless conquered are incompatible

b. Johnson v. M’Intosh (1823)

· Facts – P received a grant of land from Indians, and D received a grant for the same land from the U.S. government. Court held that Native Americans do not have the power to give, and private individuals do not have the authority to receive, title to the land

· Holding – it was legal for the US government to grant land to the Indian tribes not let them sell the land to anyone other than the US government – rule of occupancy

o Consistent with the “bundle of rights” theory – something can still be your property even though you cannot sell it

· Marshall’s policy analysis – Protection of National Security

o Confined the definition of discovery to “the finding of land previously unoccupied by Christian peoples.”

o Marshall unwilling to abandon the Europeans’ conception of discovery, although he seems reluctant

o Marshall saw Indians as a threat. If the Indians could sell the land then what would stop them from selling to a foreign nation

o Locke’s Labor Theory: Native Americans did not substantially change the property

o Any rights which may have been vested in the Native Americans are set aside because they are savages.

· Locke’s Labor Theory

o When one mixes his labor with property, this creates ownership

§ Every man has property in his own person, and thus he owns his own labor.

§ Ex: One who cultivates land has possession of it.

§ This theory incentivizes making improvements to land.

· Law of Accession

o Comes into play when one person takes the property of another and then adds to or improves it

§ Ex: A chopping down B’s trees and making flower boxes out of them.

§ According to Locke’s theory, A should get the benefit of his labor, but most courts would hold for B since the property belongs to him.

B. Capture – wild animals (ferae naturae)

· General rule

o An animal is possessed once its liberty is taken (captured, mortally wounded); pursuit alone is insufficient to establish possession.

a. Acquisition of Title

· Possession

o The first person to exercise dominion and control over such an animal becomes, with possession, the owner of the animal

· Constructive possession – rights of possession are relative

o Animals caught in a trap or net belong to the one who ones and has set the trap or net. By setting such a trap, one is said to constructively possess those animals snared

o Ex – Suppose T captures a wild animal on O’s land. T1 then captures the animal on T’s land. T sues T1 for return of the animal. What result?

§ T has no legal basis in the first place to capture an animal on O’s land. Although T has no rights against O, T has superior rights against T1. Thus, rights of possession are relative

· Mere pursuit

o Does not constitute the exercise of dominion and control sufficient to give the hunger a property right in the animal.

· Mortally wounding

o If one so wounds an animal with the effect of depriving it of its natural liberty and brings it within his certain control, possession is established.

o Ex – Pierson v. Post – mortally wounding sufficient constitutes sufficient possession of wild animal

§ Facts – Post was pursuing a fox on uninhabited land, but before he could capture the fox, Pierson killed it and took it away

§ Rule of law – occupancy of wild animals requires either (1) actually possession or (2) mortally wounding. Allowing pursuit as a means of possession would undermine certainty.

§ NOTE – rule only applies to wild animals (ferae naturae), not domestic animals

o Livingston Dissent – Lock Theory

§ Utilitarian theory that person must be within reach or have the reasonable prospect of making the thing his own; should examine the amount of effort expended in hunting the animal.

§ Concerned about issues regarding certainty, fairness, incentives, and effects on economic interests

· Locke’s theory of capture

o A wild animal should rightly go to the person who first invested labor in pursuit, notwithstanding capture had not yet been achieved

· Mortally wounding

o If one so wounds an animal with the effect of depriving it of its natural liberty and brings it within his certain control, possession is established.

· Trespass

o While a landowner is not regarded as the owner of all wild animals found on his property, a trespasser who converts the animal from the landowner’s land, the trespasser forfeits her title in favor of the landowner

o Purpose – security protect the landowner

b. Loss of Title

· Escape

o If a wild animal, captured and held in private ownership, escapes and resumes its natural liberty, the former owner loses his property right in it

· Habit of Return

o If a wild animal escapes and, though wandering about without restraint, periodically returns to the owners home, or if, though endeavoring to escape, it is pursued by the owner, title is not lost

o Rationale – An animal that returns often is presumed to be using the land and the property owner should receive a benefit as a result of this use

· Marked animals

o When certain animals (Ex – furbearing animals) have been captured and reduced to private ownership, it is common for the owner to mark or brand them for purposes of identification. If the animal escapes and resumes its natural liberty, the question becomes whether title is lost

o Majority rule – allow title to be retained in the former possessor as long as the animal is marked and the owner exercises all possible effort to recapture the animal

o Ex – Ghen v. Rich – local custom of shooting harpoon at whale symbolizing constructive possession when the Whale were to sink

§ Facts – Ghen shoots a whale with a harpoon at sea which then sunk and washed up on shore a few days later. The local custom was for