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Property I
South Texas College of Law Houston
Festa, Matthew J.

FALL 2016
Property Theory
What is Property?
Property is not the object
Property is the relationship between people with respect to the thing
Owning property is holding a Bundle of Rights (Sticks) against others
Property Rights:
Law’s Values:
Functionalist view
Allocation and enforcement of P rights
Property to its highest and best use
Consensus among ancient scholars
Certainty, peace, and order
      I.            First in Time: Acquisition of Property by Discovery, Capture, and Creation
A. Acquisition by Discovery
Johnson v. M’Intosh –
The π got land from Indians; Δ got land from US Gov’t
Concept of “first in time, first in right” (occupancy theory) or first come, first served at play.
gave title to European nations that came to America – a political sovereign. Any subsequent owners would derive title from the sovereign that discovered the land.  Power was transferred from England to the U.S. to hold title to the land.
Implicit here is that b/c land has to trace back to the sovereign, all land ultimately owned by the government – from here derives eminent domain.
“Mere occupancy” doesn’t give right to title
Occupancy Theory: “First in time, first in right”
Labor Theory: John Locke 
Property in, “One owns one’s self…” You own your own work, so if you mix your work with something, you own the thing.
If you take your own person and mix the labor of your body with possession of land, you earn the right to exercise an ownership over it since you labored on the land to improve it in ways others didn’t.
Ex: Haslem case: Horse manure is abandoned property of the horse’s owners.If you rake the manure into a pile, you’ve put work into it, making the manure yours b/c you changed its original condition through your labor
B. Acquisition by Capture
Rule of Capture: the first one to control the thing to the point of reducing it down to a possession, you have the right to possession
This deals with an essential meaning of ownership: form and function
: Putting your hands on or mortally wounding
Reduces wild animal to something you can possess
Majority Rule: (“Formalist”): Possession goes to the person who brings the resources under their control or dominion first
PP: Certainty, peace and order
Dissent (“Functionalist”/Instrumental)
Intent (Who has the better claim?) + a reasonable prospect of taking
Social interest in killing foxes, they are nuisance, we should encourage capture
Pierson v. Post – Must Possess the wild animal pursuit is not enough to claim title. [Dead foxes] Glenn v. Rich – Acts of appropriation are sufficient forms of possession when physical control isn’t reasonable, or custom favors the acts. [Dead whales] Keeble v. Hickeringill – Landowners are considered prior possessors (first possessors) of wild animals on their land. [Duck trapper]  
C. Acquisition by Creation
(1) Property in One’s Ideas – Intellectual Property
International News v. Associated Press – Followed along with labor theory, and protecting someone who labored to provide information. One who has gathered news or general information for the purpose of publication has an interest that is entitled to protection from interference.
(3 Req’s for Protection)
– Independent creation w/ minimal creativity
Work of Authorship – literary works, musical, dramatic, movies, architecture, etc…
– Must be fixed to a tangible medium
Fair Use Doctrine: a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Can be used without the author’s permission.
(1) Purpose and character of the use: a fair use will not be one of economic competition with the copyright holder
(2) Nature of the copyrighted work: The degree to which the work that was used relates to copyright’s purpose of encouraging creative expression.
(3) Amount used in relation to the copyrighted work as a whole: the quantity and quality of the copyrighted material that was used.
(4) Effect of the use upon the potential market for the copyrighted work: A fair use doesn’t affect the market value of the copyrighted work.
First Publications Inc. v. Rural Telephone Service – A work must be original and possess at least some small degree of creativity in order to be copyrightable. As applied to a factual compilation, assuming the absence of original written expression, only the compiler’s selection and arrangement may be protected; the facts themselves may be copied at will.
Harper & Row Publishers Inc. v Nation Enterprises – Publication of parts of a work soon to be published does not qualify as fair use. Publication of soon to be published materials substantially decreased the market value.
Patent (5 Req’s)
– Subject matter areas of, “process, machine, manufacture, or composite matter”
– Not preceded by an identical form in public or prior art
– Easily met so long as it adds benefit to mankind
– Sufficient advance over prior art
– Description is sufficient detail that “one of ordinary skill of the art” would be able to use the invention.
Diamond v. Chakrabarty – A live, man-made microorganism is a non-naturally occurring composition and therefore may be patented. Genetically engineered organism’s
(3 Req’s) (The Lanham Act)
– Mark distinguishes it from another
– If it is exclusively functional, cannot be protected by TM law.
First Use In Trade – First actual use in commerce, not mere adoption
The Purpose of TM protection are to prevent consumer

claims title to a lost item; finder’s title over a lost item is superior to all BUT:
The original owner
Previous finders
Occupant homeowners (if found in residence)
Also, finder shall lose to the landowner if the item is embedded in, or attached to land.
: Society wants to return lost property to the rightful owner. To promote fairness, they want to reward the finder of the object.
Amory v. Delmirie – A finder of an object has a property interest which is not absolute, but is sufficient to allow the finder to keep the object against all claims but those made by the rightful owner.
Mislaid Property – (Voluntarily/Unintentionally placed somewhere by owner & forgotten)
: Owner of the locus where the mislaid property is found has title.
They have a higher chance of finding the owner
“Shopkeepers” have a duty to use reasonable care for safe keeping.
McAvoy v. Medina – Mislaid property shall go to the owner of the premises as the 2nd best person
Abandoned Property – (Intentionally left and not wanted back)
: The voluntary and intentional release of personal property
The key is that the abandonment of property was intentional
By rule – The property typically goes to the finder of the abandoned property.
Treasure Trove
: Buried or left for safe keeping with the intent to return
Usually will go the finder, but will go to landowner if buried on someone’s land.
C. Acquisition by Gift
A GIFT is a voluntary transfer of property to another without consideration.
Elements needed to make a gift:
(1) Actual delivery
Donor must transfer possession to the donee
Can be actual/manual, constructive, symbolic
(2) Donor intent
Donor must manifest a present intention to make a gift to the donee
“Present intent” can be a possessory interest, a future interest, or any kind of interest.
(3) Acceptance – usually presumed
You can essentially boil a gift down to a gratuitous transfer of property without consideration
Giving Property
To make a gift of property:
(1) Intent: The donor must manifest the present intention to make a gift to the donee
(2) Delivery: The donor must transfer possession to the donee;
(3) Acceptance: Usually presumed