My Semi-Outline for Property/ Mirow
Most useful parts is the problem set. The vocab may not be the best thing to study from, but you can use as a gap filler or check your own notes/outline
Part 1. An Intro to Fundamentals
A. Acquisition by Discovery
Acquisition by. . .
– finding of new and unchartered territory.
– frequently accompanied by a LANDING and symbolic taking of possession
– results in “inchoate title” that must be perfected by settling and taking possession within a reasonable time.
– take possession of enemy territory through force,
– followed by formal annexation by conqueror
– 2 modes of territorial acquisition, which have little relevance today.
– virtually no unknown territories today
– special agreements that place planetary object outside national appropriation.
“FIRST IN TIME, FIRST IN RIGHT.”
– being there first justifies ownership rights
– Rule #1 of property law, which acquisition/discovery based on.
– Unlike discovery/conquest, this is persistent notion today.
– dates back to Roman Law
– Because greed led to scarcity, private ownership took over.
– A set rule. Black and white.
– Provides certainty – we can act in accordance with set rules.
Johnson v M’Intosh
Issue – do indians have the right to give land, and do private individuals have the right to receive that land?
Rule – Original fundamental principle, that discovery gave exclusive title to those who made it.
This rule is essentially that “might makes right” which directly opposed the RULE 1.
* This case illustrates the contingent nature of private property – it depends a lot on who gets to make and interpret rules.
* Some vocabulary words to consider:
TITLE – ownership. In property law – a shorthand term to denote the facts which, if proved, enable one to retain or recover possession of a thing.
DOMINION – having both title to and possession of property; having control of both ownership and use.
OCCUPATION – taking possession; actual use or possession of a thing
OWNERSHIP – one’s exclusive right of possessing, enjoying, and disposing of a thing. Compre
ve possession). Post won, Pierson appealed.
TRESPASS ON CASE
– harm results, not from the immediate action, but the one that came later.
– E.g. you cut down a tree, it falls without hitting anyone, but later someone trips.
Issue – does pursuit of the fox give Post exclusive right?
RULE OF CAPTURE –
You acquire possession of the animal from (Mirow gave some possibilities):
– Pursuit + wounding?
– Pursuit + wounding + subsequent possession?
– Actual possession?
Rest. § 6 – RULE OF CAPTURE
– If wild animals (FERAE NATURAE) are captured, they belong to the captor.
– But CAPTURE is required;
– Merely chasing animal is not enough.
Result: Pierson won because Post did not adequately assert possession by merely chasing the fox.
*Custom can be a source of law – in this case, the custom of hunters
– Social Goal – killing foxes.
Fugitive Resources – e.g. oil/gas. If you ca