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Property I
St. Johns University School of Law
Varadarajan, Deepa

Fall 2011

I. First Possession – Discovery, Capture, Conquest:
·         Ways to Obtain Property:
–          Be the first to discover it.
–          Be the first to possess it (actual physical possession or industry custom of sufficient “marking”).
·         Acquisition by Discovery:
–          Johnson v. M’Intosh (1823):
o   Action of Ejectment – lawsuit for a particular remedy (normally for title of land).
§  This is also known as a quiet title action. This clears up the argument of who is entitled to the land.
o   The land was entitled initially to England through the conquest of the land (subduing the savaged uncivilized Indian tribes).
§  The Indians had the right to occupy the land, not own it.
§  There can only be one party with valid title. There cannot be multiple parties with title to the same land (rivalrous possession).
o   The title to the land then transferred to the United States after winning its independence from England in the Revolutionary War.
o   First in Time – Mc’Intosh was the first person to “possess” the land. This ensures his right and others rights when taking the lands of Indians.
o   Moral Rights Theory of Property – by working with something and creating something of value from it creates a moral reason for owning it.
o   Acquisition by Discovery – entails the “sighting” or “finding” of unknown or uncharted territory frequently accompanied by a landing and the symbolic taking of possession that give rise to undeveloped title that must subsequently be perfected within a reasonable time.
o   Conquest – the taking of enemy territory through force followed by formal annexation of the defeated territory.
o   Law of Accession – when one person adds to the property of another by labor alone or by labor and the addition of new materials.
·         Acquisition by Capture:
–          Pierson v. Post (1805):
o   Post was hunting foxes on an uninhabited area of land. Pierson, seeing Post chase the fox, cuts in and shoots, kills, and takes the fox before Post gets to it.
o   Action of Trespass on the Case – lawsuit where the claimant seeks damages as a result of being deprived of his property.
o   Mere pursuit is not enough, corporal possession is needed (first possession).
§  There must also be an intent to possess the chattel.
o   Justice Tompkins reasons that too many cases would come about under a rule of first pursuit.
o   The Court reasons that the pursuer must have continuous pursuit and maim the animal in order to establish ownership of the animal.
–          Ghen v. Rich (1881):
o   The libellant (plaintiff in admiralty cases) killed a whale with a bomb-lance and waited to claim it after it was found (as per the custom of the time). A man named Ellis finds the whale washed up on a shore, but does not follow the custom of identifying the harpoon marks, and treats it as his own and auctions it off to Rich (the defendant).
o   Ghen did not pursue the whale after killing it. He argues that the whale is his due to the custom practice (or usage) of the whaling industry. He reasons that this promotes uniformity.
o   Ghen did not fulfill the rule of first possession. He, nonetheless, wins because the harpoon marks signal that the whale was his.
o   The court reasons that the rule of first possession is too impractical, no one would go down to the bottom of the ocean to retrieve a whale (no technology exists for this at the time).
o   The Court adopts an adherence to the custom due to the fact that the custom developed with that particular industry and affects only the people in that industry.
o   Tweaks the Pierson rule because a whale (unlike a fox) cannot be shot and chased to the bottom of the sea.
–          Keeble v. Hickeringill (1707):
o   The plaintiff sues the defendant for the cost of ducks scared away from his decoy pond. The defendant shot his gun around the pond, scaring the ducks away.
o   The court says that the defendant was harming the plaintiff’s livelihood through malicious interference with his use of his land.
§  The defendant was using malicious intent in his actions.
o   Ratione Soli – “by reason of the soil” – conventional view that an owner of land has constructive possession of wild animals on the owner’s land.
§  Landowners are regarded as the prior possessors of any animal ferae naturae on their land, until the animal takes off.
–          Popov v. Hayashi (2002):
o   When Barry Bonds hit his 73rd homerun, breaking the homerun record, the ball sailed into the crowd where many fans were waiting to catch the $1 million ball. The plaintiff reached out and stopped the ball with part of his glove, but before he could effectively handle and possess the ball, he was attacked by an unruly mob of fans trying to get at the ball. The plaintiff was tackled to the floor and dropped the ball. The defendant was not one of the people attacking the plaintiff, but was a victim himself ho was knocked to the floor as well. As the defendant laid on the floor, he saw the ball, picked it up and put it in his pocket. He then showed the ball to a cameraman and then waved the ball in the air. The plaintiff tried to get his ball back but the defendant was then swarmed by security and taken away. There was never any recorded evidence of the plaintiff actually possessing the ball, only him making the attempt to catch it and being interrupted by the unruly mob. The plaintiff sued the defendant for conversion.
o   Conversion – the wrongful exercise of dominion over the personal property of another.
§  There must be actual interference with the plaintiff’s dominion.
o   It was the plaintiff’s burden to prove his intent to possess the ball and that he actually did possess it.
o   It has been understood by the courts that in order to acquire a legally cognizable interest in lost or abandoned property a finder need not always have mutual possession of the thing. Rather, a finder may be protected by taking such constructive possession of the property as its nature and situation permit.
o   The court attempts to use Gray’s Rule which states that a person who catches a baseball that enters the stands is its owner. A ball is caught if the person has achieved complete control of the ball at the point in time that the momentum of the ball and the momentum of the fan while attempting to catch the ball ceases. A baseball which is dislodged by incidental contact with an inanimate object or another person, before momentum has ceased, is not possessed. Incidental contact with another person is contact that is not intended by the other person. The first person to pick up a loose ball and secure it becomes its possessor.
o   The court adopts the rule that when an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of other, the actor has a legally cognizable pre-possessory interest in the property. That interest constitutes a qualified right to possession.
o   The court determines that an award to either party would be unfair to the other party. The ball cannot be given to the plaintiff because it is not proven that he would have actually caught the ball. The ball cannot also be given to the defendant because it is not proven that the plaintiff would have dropped the ball either. There is middle ground, however. The idea of equitable division, which provides an equitable way to resolve competing claims which are equally strong, is implemented when more than one party has a valid claim to a single piece of property. Therefore, the baseball was sold at auction and the profits divided amongst the two parties.
II. Rights of Owners:
·         What does it mean to be an owner of property?
–          To have the right to develop

lute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. Thus, the owners of privately held bridges, ferries, turnpikes, and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation. Whether a corporation or a municipality owns or possesses the town, the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free.
–          Hinman v. Pacific Air Transport (1946):
o   The plaintiffs allege that they are the owners and in possession of 72 ½ acres of real property, together with a stratum of air-space superjacent to and overlying said tract and extending upwards to such an altitude as plaintiffs may reasonably expect now or hereafter to utilize, use or occupy said airspace. Without limiting the altitude or defining the upward extent, the plaintiffs argue that they may reasonably expect to use and occupy the airspace and each portion of it to an altitude of not less than 150 feet above the surface of the land. The plaintiffs also allege that the defendant, in the business of operating a commercial airline, did not listen to the plaintiffs’ warnings to not fly above their land at an altitude less than those 150 feet. The defendant did not listen, and on multiple occasions, flew over the land at altitudes less than 100 feet above the ground.
o   The Court states that the literal construction of the formula presented by the plaintiffs is very impractical and would bring about an absurdity. The sky has no definite location. There can be no ownership of infinity, nor can equity prevent a supposed violation of an abstract conception. Title to the airspace unconnected with the use of the land is inconceivable. Such a right has never been asserted and is a thing not known to the law.
o   The Court reasons that people own so much of the space above the ground as they can occupy or make use of, in connection with the enjoyment of the land. This right is not fixed. It varies with the varying needs of the owner and is coextensive with them. The owner of the land owns as much of the space above him as he uses, but only as long as he uses it. All that lies beyond belongs to the world.
o   Property rights are rights of people among people, with respect to things.
–          The Right to Alienate; The Right to Destroy:
o   Society does not allow for people to allocate resources that belong to them, based on the amount of wealth people have (NYU Law classes and human organs).
§  If it were not like this, these particular systems would not work.
§  Black markets might arise, dealing with these “prized” commodities.
§  The NYU law class lottery situation is comparable to Jacque v. Steenberg Homes, Inc.
o   The definition of “property” is malleable and depends on a lot of circumstances.