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Federal Income Tax
South Texas College of Law Houston
Rensberger, Jeffrey L.

Johnson v. M’Intosh (U.S. Supreme Court, 1823):
Acquisition by Discovery
P (Johnson) claims title to land based on two grants by Indian chiefs. The tribes had rightful possession of the land and the authority to execute the conveyances. Trial court denied the power of the Indians to transfer the title of the land to Johnson. P appealed and the Supreme Court affirmed the trial court’s decision.
Do Indian tribes have the power of conveying absolute title (exclusive) of their land to others? i.e. can this title be recognized in a court of law.
Indian inhabitants are merely occupants of the land and do not have the power to transfer absolute title to others.
1. The Indians right to dispose of the land was relinquished due to the fact that discovery gave exclusive title to those who made it. Europeans asserted their ultimate dominion on the land and compensated the Indians with civilization and Christianity.
2. The history of America proves the universal recognition of the right to the principle of discovery=absolute title.
3. All European nations abide by this principle.
4. Absolute title cannot exist at the same time in different governments over the same land. Indians cannot be considered a nation, and are merely occupants of the land.
Pierson v. Post (S. CT of NY, 1805):
Acquisition by Capture
P (Post) was hunting a fox when Pierson (D), seeing this, killed the fox and carried it off. D. wins.
Did P in his pursuit of the fox acquire a right to property (the fox) that will sustain an action against D for killing and taking the fox?
No. Property in wild animals is acquired by occupancy only.
1. Depriving an animal of its liberty constitutes occupancy.
2. Only pursuit occurred here.
3. If pursuit of animals without wounding them was considered occupancy, litigation in the area would increase.
4. Legal scholars reasoning.
Proposes new rule- allows wild animals to become property without touch provided the hunter has a reasonable prospect of acquiring the animal.
Ghen v. Rich (U.S. District Ct., MA, 1881)
Acquisition by Capture
Rich (D) purchased a whale at an auction from a man who found it washed up on the beach. Ghen (P) had killed the whale and left his bomb-lance in the animal. Court found for the P, as it had done all that was necessary and customary to secure the animal.
By the trade usage was the whale placed under sufficient control by the P so that it became his property?
Yes, it was the P’s property.
1. Taber v. Jenny (kill whale and marks of appropriation=property), Bartlett v. Budd (possession and appropriation), Swift v. Gifford (follow whaling customs).
2. Did everything practical to secure the whale.
3. The trade usage was industry wide and necessary to the economic conditions of both parties.
Popov v. Hayashi (Superior Ct, SF, 2002)
P (Popov) initially caught Bond’s homerun ball, but failed to take the ball into possession due to mob behavior. D (Hayashi) picked up the ball and acquired it. P pled causes of action for conversion, trespass to chattel (physically interfering to cause injury), injunctive relief and constructive trust. Equitable division is applied, P and D must sell the ball and split the profits.
Did P achieve possession or the right to possession as he attempted to catch the ball?
When an actor takes significant but incomplete steps to achieve a piece of possession and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. The interest constitutes a right to possession which can support a cause for conversion.
1. Hunting, fishing and salvage cases.
2. Gray’s rule-actor must retain control of the ball after the incidental contact-P did not est. possession, but not because of incidental contact.
3. Hayashi obtained unequivocal dominion and control over the ball
4. Arnold v. Producers Fruit Company-ea. Party had an undivided interest in the property
Keeble v. Hickeringill (Queen’s Bench, 1707)
“The theory of malicious interference with trade”
Lord Holt
P (Keeble) had set up decoys in a pond on his pr
International News Service v. Associated Press (Supreme Court, 1918)
-acquisition by creation
-appeal from denial of injunctive relief
AP (P) sued INS (D) for the use of P’s news stories in INS publications. INS would obtain advance publication of AP’s news through early editions of the AP’s news and bulletin boards and could then sell them to the west coast at the same time or before the AP could. The AP contended it had a proprietary right to all of its news and INS argued that that right was terminated upon first publication. The district court granted a preliminary injunction for the first 2 complaints and the appellate court modified and sustained the injunction. The Supreme Court held that publication for profit of news o

n the future=bad faith.
2. D told P it would sell to the highest bidder if P did not make an offer in 24 hours.
3. Safe Harbor of ACPA does not apply as it is only available when the D believed the use of the domain name was lawful.
4. Violated ACPA because is used an identical or similarly confusing mark.
5. P could not have registered the domain name at the time D did due to NSI’s domain rules which had since changed.
6. Remedy-transfer the domain name to P.
Moore v. Regents of the University of California (S. Ct, California, 1990)
P was receiving treatment at UCLA for a life threatening form of leukemia. His tissue was rare and could be used for profitable development. The doctors used his tissue to develop a cell line and enter into commercial agreements from which developed a billion dollar market. At some point, P was told that his bodily substances were being obtained for research purposes, but P was not told profit was being made off of them. In 1984, P sued, charging conversion, lack of informed consent, breach of fiduciary duty, etc (p.80). The trial ct sustained the D’s demurrers to the conversion cause of action and held the other causes of action were tied into conversion. The court of appeals, reversed and the supreme court reversed the appellate court’s decision, arguing the P had not stated an adequate cause of action for conversion.  The supreme court did affirm the cause of action for the breach of fiduciary duty.
May a person whose tissue is used for profitable research without his knowledge maintain a cause of action for conversion?
No a person whose tissue is used for profitable research without his knowledge cannot maintain a cause of action for conversion, only for breach of physician’s disclosure obligations (informed consent and fiduciary duty).
1. P cannot establish the right to possession and therefore cannot maintain an act of conversion (depriving one of a possession). Tissue is not property, this is at odds with views on ethics.