Property I Outline

Property Outline 1LE Fall 2015
I.Possession and Ownership
A.Property ownership through first possession
1.Discovery – “sighting or finding of unknown or uncharted territory; [typically] accompanied by landing & symbolic taking of possession
a)First in time, first in right à “they got there first, they get the property”
(1)E.g. Europeans “discovering” land used by Native Americans for centuries prior
(a)First in time because they were first Christian Europeans upon the land
Conquest respects private ownership unless population is incompatible
(b)Native Americans given right of occupancy, Europeans could extinguish right by conquest or purchase
b)Property as a bundle of rights / bundle of sticks
(1)Title is relative
(2)Property entails a number of disparate right or “sticks”, each stick represents an individual right
(a)e.g. right to use, to occupy, to sell, to exclude, to transfer, etc.
c)Johnson v. M'intosh
(1)First discoverer has preemptive right over subsequent discoverers
(2)“Federal gov't earned exclusive right to extinguish Indian title and grant the soil. Johnson's title, derived from private purchases from Native Americans, was not valid. “
2.Capture
a)Traditional – property in wild animals is acquired through occupancy (mortal wounding and deprivation of natural liberty)
(1)Pierson v. Post
(a)“Mere pursuit is insufficient for ownership through capture. Requires intent to appropriate and certain control”
(b)DISSENT: can own through capture when having 1) reasonable prospect and 2) intent
Promotes fairness, whereas majority promotes certainty
(c)Rationale soli –  property owner has constructive possession of wild animals of  their land
Landowners regarded as prior possessors of any wild animals on their land WHILE it is on their land
(2)Ghen v. Rich
(a)Exception to the rule of capture
(b)“When certain control is impractical, ownership will be determined by the act of appropriation accepted by industry customs”
b)Modern
(1)Oil and natural gas – commonly collect underneath land owned by multiple different people
(a)Unfair and excess exploitation by applying the rule of capture
(b)General rule – possession of the land is not always possession of the fera natura.
Possession only while on or in the land
(2)Groundwater
(a)History – governed by English rule of absolute ownership (withdraw freely without regard to effects on neighbors)
Abandoned in favor of the American rule of reasonable use
(b)Prior appropriation – the person who first captures water and puts it to reasonable and beneficial use has a superior right to later appropriators (first in time rationale)
(3)Utilitarian property theory
(a)Primary function of property rights is to promote efficient use of resources
3.Creation
(1)No ownership of ideas/facts
(2)Any expenditure of mental or physical effort which creates a tangible or intangible entity, vests in the person who made it, a proprietary right to the commercial exploitation of that entity
a)Intellectual proper