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Property I
Southern Illinois University School of Law
Holte, Ryan T.

Professor Holte, Property I
Fall 2014
Southern Illinois University School of Law
Primary way by which people define relationships
▪       People to land
▪       People to things
What is “Property”?
▪       Physical
▪       Intangible
▪       What is common to both?
Property Law:
▪       Ownership and rights regarding all types of property
▪       How to acquire property, the legal interest in real property, controls on real property use
Johnson v. M’Intosh (U.S. S. Ct. 1823)
▪       ISSUE: Whether the American Indians could convey title to lands that are also claimed under title held by the United States and its grantees.
▪       DECISION: No; the American Indians did not have title and thus they could not convey the land to Johnson.
▪       HOLDING: Title is established by the first person to possess the now legally claimed land.
First in Time Property Theory (basis for Discovery)
            Fundamental Focus: Public Policy
(Efficiancy, human nature, promotes peace)

            (First Posession)

                        (Ex: Discovery)
▪       Likely the historical basis
▪       Reduces conflict
▪       Efficient
▪       Hard to define “first in time”
▪       Arbitrary in application
▪       Unjust in application—Marshall weighs the application heavily in opinion
The last theory (primary justification for first possession):
▪       Labor theory of property
▪       The application of labor to the property creates justification to the right.
▪       Maximizing efficiency
▪       Directly Enhances value to property by adding labor
▪       Compare to Normative Law & Economics
▪       Maximizing allocative efficiency
Summary of Johnson
▪       Clash between European and American Indian cultures
▪       European legal system had theoretical rules and historical precedent at hand to justify ownership
▪       First possession is governing principle of Property Law
Pierson v. Post (N.Y. Sup. Ct. 1805)
Courts applying the doctrine of first possession to property claims in wild animals
Must capture wild animal to claim it as property (a strict capture rule)
ISSUE: Whether pursuit of a wild
animal amounts to the “occupancy”
required to claim the animal as property.
DECISION: No; trial court reversed.
HOLDING: The mere pursuit of a wild animal without capturing or wounding it is insufficient to create the  “occupancy” required for claiming the animal as property.
Rule of Capture: If one is to claim ownership in a wild animal ® the animal must be captured (or at least mortally wounded).
Ghen v. Rich (Mass. D. Ct. 1881)
Courts applying the doctrine of first possession to property claims in wild animals
Industry custom, such as marking, may justify property claim in wild animal (if it achieves the same clear results as the strict capture rule)
HOLDING: When an industry custom represents a reasonable act of fi

interest in excised body parts and thus cannot sue for conversion for the use of these body parts without the patient’s consent.
Alternative Holding: A patient may sue for a physician’s breach of a (1) disclosure obligations and (2) fiduciary duties in the use of a patient’s tissue without consent.
Property Rights
– The exclusive right to acquire, possess, use and dispose of something.
– “Full property in a thing is a perpetual right to use it to any purpose and to dispose of it at pleasure.”
– “Bundle of rights”
– Primary Function – Guiding incentives to achieve a greater internalization of externalities.
Property: Two Conceptions
“Right to Property” = Bundle of Rights
▪       Right to Acquire
▪       Right to Possess
▪       Right to Use
▪       Right to Dispose (Alienate)
▪       Right to Exclude
▪       Justice Pannelli in Moore: to recognize property = enforce right to exclude
Property = dominion (traditional view)
▪       “[T]he unrestricted right of using, enjoying and disposing of a thing.”
▪       “sole and despotic dominion”
Chief Justice Marshall in Johnson: title = exclusive right to transfer
California Court of Appeals in Moore [p. 70]