PROPERTY 1 – Prof. Rensberger
Ch. 1 First Possession: Acquisition of Property by Discovery, Capture and Creation
A. Acquisition by Discovery
Johnson v. M’Intosh
Π Δ
Grant from N.A’s Grant from U.S. Govt.
Issue: Whether grants from NA’s can be recognized by U.S. Courts
Chain of title – NA à Π Grantor has power to transfer property
– U.S. à Δ
1st in Time Rule – Rationale
– Used to regulate disputes
– Need govt. as enforcement mechanism to protect/regulate property interests
Property – politics, ideology
John Locke – Labor Theory
– NA’s didn’t do adequate amount of labor to perfect property interests in the soil
– NA’s view – they didn’t want to exploit the land
Ex: A chops B’s trees and makes them into flower boxes. Who owns the flower boxes?
A’s Arg: I exploited the interest, I should own them
B’s Arg: 1st in Time
Ask: How much has the value increased?
Ex: C paints on canvas that D owns
Now its valuable – Ct. may say that the labor substantially increased the value
OR
C’s painting sucks but they added their oil to D’s canvas and it is still worth a little bit more
– Ct. may say that whoever added the resource that increased the value the most owns it
B. Acquisition by Capture
Pierson v. Post
(killed the fox) v. (fox hunting)
Issue: Did Post own the fox?
– If it’s Post’s property, no one can interfere.
Holding: If a person mortally injures/kills/traps/physically takes control of an animal, it becomes his property.
– Because Post hadn’t done that, it was not his property.
– 1st in time to do what? To actually possess the fox
Majority Opinion: Uses older authorities
– 2 ppl will chase fox until it’s dead
Dissent:
– 1 person has to back off if other person is already pursuing it – chance that the fox might get away
Post wins because he was in reach, had reasonable prospect of taking the fox. He was anti fox/pro farmer because they were pests/varmints, glad that anyone would get rid of them.
Policy that would support majority
Downside to hard and fast rules – always situations that will not make much sense
Easy rule (SOL) v. Smart Rule (Take circumstances into considerati
in this case duck capture) – Hickeringill was doing this
Good Competition (resulting in more duck capture) – Use better technology to attack and capture more ducks
Diff. btw. Pierson and Keeble – was Post engaging in the same type of competition? Yes, because in the end, society got the benefit.
In Pierson, it would be bad competition if Post had not killed the fox and it got away.
It is up to the court to decide social policy and the use of property (in these cases, wild animals).
Problems Page 31
1. O v. T – constructive possession – ratione soli
T v. T1 – T wins over subsequent trespasser
– Relativity of title, who owns the animal?
Trespass by O – self help. Does he have a right? – chattels, maybe
2. Open land
– What if deer do return? O wins because it wouldn’t benefit society to domesticate a deer
– What if deer don’t return at night?
While on land – ratione soli, constructive possession
