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Property II
South Texas College of Law Houston
Terrell, Buford

Professor Terrell

Fall 1997


A. Sources of Property Law

1. natural law (pre-existing)

· rights have roots in the nature of human beings or that they are natural in the sense that people who think about human relationships from a rational and moral point of view are bound to understand particular individual interests and fundamental

2. positivism (creation of new law)

· going along w/ existing law and in the absence of existing law or precedent, interpreting and developing law in what they believe was the intent of the law
B. “Property” Defined


1. a right to exclude, enforceable by law

2. a relational right

3. Marshall (from M’Intosh)—said that the right to own property comes from the government

4. Holmesian—“Property depends upon exclusion by law from interference”-a legally enforceable right to exclude.

5. Terrell’s—“those relationships and obligations that arise between people in relation to things.”


1. Johnson v. M’Intosh: who owns the land?

a. property arises through conquest (Marshall)—property is a grant from a sovereign

b. U.S. wins b/c “title springs from the sovereign”

2. International News v. AP: who owns the news?

a. property is a right to exclude enforced by law (Holmes / Brandeis)

b. AP “loses” b/c general news is common property

c. dissent: legislature could / should create this right to news

d. Look at this in the context of intellectual property, which is not meant to be disseminated, while the news was intended to be spread. This would mean that the nature of the news is what creates

Rule: publication for profit of news obtained from other news gathering enterprises is a misappropriation of a property right.

e. This is a first in time, first in right principle

3. Moore v. Regents of UCLA: who owns the spleen?

a. property is a right to exclude enforced by law (Holmes / Brandeis)

b. Moore loses b/c no prev precedent recognized a spleen as property

c. dissent: legislature could / should decide this issue

rule: a person does not have a property right interest in his cell tissue

a person does have a right to his own likeness.

C. Theories of Property (arguments as to who should get the property)

1. first possession

2. labor theory—you should get it if it’s a product of your labor (ties w/ ingenuity)

3. utilitarianism – greatest good for the greatest number of people

4. Ingenuity theory—a byproduct of the labor theory . EX:) Spleen case was a product of ingenuity (traceable to labor theory)

5. Uniqueness—economic-“as such” worth more b/c rare. Lead to Marxism & Capitalism, natural theory approach

6. Autonomy—if the value to your person will decrease. It’s a part of you.

CASES: Spleen case. Argue as follows

For spleen donor: For Doctor’s

+ autonomy + labor + utilitarian

+ uniqueness + ingenuity


1. Johnson v. M’Intosh

a. first possession/natural law – God sent Europeans across the ocean to bring civilization to the savages (can be seen in Marxism and Communism)

i. occupancy theory—this says that people on property can have a title of occupancy, which can be taken away by a sovereign

ii. property arises through conquest (Marshall);

right to property is gained through “taking”

Rule: the act of discovery give the discovering sovereign the power to extinguish the native title of occupancy.

b. labor theory

i. per Locke

ii. value = labor + raw materials

iii. although Indians had first possession,

settlers gain rights b/c they put value into the land

2. International News v. AP

a. labor theory

i. per Locke

ii. value = labor + raw materials

iii. majority wanted to find for AP b/c it had

put labor into the gathering of news

3. Moore v. Regents of UCLA

a. Autonomy, individualism/will = first possession

i. occupancy theory

ii. dissent looked at Moore’s personal autonomy

and his individual rights

b. labor theory

i. per John Locke, we should protect property rights in those whose labor creates value

ii. value = labor + raw materials

iii. which was more important?

(a) reward Moore for the use of his spleen

(b) reward the doctors for their labor, because value came from their knowledge and labor

Moore’s spleen was in a sense, raw material, combined with the labor of doctor’s created a better good for society. It was worth nothing when he had it, and only became valuable through the labor of the doctors.

c. utilitarianism

i. per Bentham

ii. the greatest good for the greatest number

iii. reward the public;

majority felt that only by rewarding doctors

will the public health increase

D. Function of Housing

Although we have discussed three theoretical justifications

for why we have property, the idea of housing serves as another

good example:

a) housing = a defining point of personal liberty

b) property rights = political rights = power to exercise freedoms

1. Homelessness:

a. if no public urinals, then literally “no pot to pee in” for homeless

b. issue of children

i. how can we help the homeless help their children?

ii. should we provide for the whole family as well?

2. Divorce:

a. a single individual can do what they wish w/ their house

b. w/ marriage and children, this freedom decreases

i. who should get the house in the event of a divorce?

EX: In Re King

1. couple w/ children get a divorce

a. husband wants to sell the house

b. court disapproves of husband’s profession as a gambler

2. court decides the “family” is the house’s (O)

a. whatever part of the family that is left gets the house

b. house goes to children (through the mother)

3. analysis:

a. in King, property is used as a weapon

to limit the husband’s personal autonomy

b. judges act as “parents” for the divorcing family

i. can choose what size house is appropriate

ii. can determine what is in a child’s best interests (moving)
II. POSSESSION (the labor theory is the underlying philosophy!)
A. Possession Defined

1. Pierson v. Post: Who Gets the Fox?

Rule: property in wild animals is only acquired by occupancy, and pursuit alone does not co

parrot captured by (A)

i. who can take possession of the parrot?

(a) the SPCA retains possession

(b) in both the parrot and fox case, the court looked at

the individual animal, not the whole species

(i) “Chester the Parrot” was found to be domesticated

(ii) the fox was found to be a wild animal

d) Oil and Gas

When oil and gas technology developed, the courts

had no “oil and gas” law.

Therefore they borrowed from the wild animal rule of capture.

i) per PA supreme court, oil = ferae naturae

ii) NOTE: rule of capture is used by analogy only to oil and gas


1) possession goes to one taking dominion of oil and gas

not already in someone’s possession

2) oil and gas similar to ferae naturae,

except oil and gas have added property value (once oil and gas taken from ground, no longer like wild animals, but like regular possession)

EX 1: gas company storing gas underground

some gas goes under property of (A);

(A) sues for possession

(i) no possession by (A)

(ii) gas may be similar to ferae naturae,

but it is not a wild animal b/c

oil and gas have property value

(iii) analogy: if a fox is made into a fox stole,

it still belongs to (O) even if stole is “let loose”

iii) if one applies rule of constructive possession,

landowner may have right to oil and gas while it is on his land


1) ratione solis: landowner presumed to possess everything on land

2) possession ends if oil / gas escapes from property

3) C.P. may not apply to those allowed entry in the land

3. Finding

a) Key Concepts

1) possession is relative

i. original owner has ultimate rights;

possesses against the whole world

ii. “first in finding” has next best right

2) finder must establish his own claim

i. finder may not assert the rights of a 3P (no ius tertii)

ii. EX: (A) finds jewel; takes to (B) for appraisal

(B) refuses to give jewel back to (A)

b/c (A) is not the (O)

(A) v. (B):

(a) the court does not have to determine who owns the jewel

(i) (B) must establish his own claim to the jewel

(ii) (B) cannot assert the rights of the 3P (O)

(iii) (A) wins b/c he had possession (intent + dominion)

before (B); (A) has the better right

(O) v. (A) or (B):

(a) the original owner that lost or mislaid the jewel

will win in either case