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Property I
St. Johns University School of Law
Sheff, Jeremy N.


Outline Glossary J

discovery- the sighting/ “finding” of previously unknown /uncharted territoryà frequently accompanied by a landing and symbolic taking of possession
conquest- taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror
conversion- action for the tort of using another’s property as one’s ownà true owner or rightful possessor can recover the property
trover- action for monetary compensation for conversion of personal property (i.e. forced sale)
replevin- action to recover the asset itself (plus money damages for injury to the asset)
nominal damages- small amount of damages awarded to a π where no substantial compensable loss has been established but whose legal rights were violated
punitive damages- awarded [for deterrence]à punishment provides confidence in legal system; prevents ‘self-help’ remedies

Unit 1
First Possession: Acquisition of Property by Discovery, Capture, and Creation
I.First Possession: Overview
§ First Possession Rule: a thing capable of ownership but not then owned belongs to the person who acquires actual or construction dominion or control over it and has to intent to assert ownership over it
§ possession- controlling or holding of chattel possessed with or without a claim of ownership; elements: (1) an intention to control the object on the part of the possessor, and (2) actual controlling or holding the property
§ Johnson v. M’Intosh (1823) – discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest
® Case: two claimants to the same land based on two different sources of title – 1 from the native inhabitants (Indians), and 1 from a later grant from the U.S.
® ABSOLUTE property rights cannot be shared by two different entitiesà Indians were only given the occupancy rights, never given the right to sell!
® factors in recognition of the right:
Õprecedent- want to get rid of Indian
Õsuperiority of Christian white peopleà don’t want to undermine institutions/society already in place
Õidea that recognizing Indian’s right to land would not put land to “useful” purpose (Indians would keep land in “wilderness state”)
® here, notion that being there first justifies ownership rightsà doctrine of discovery as applied in Johnson is not applicable today BUT the foundation of that doctrine which is the principle of “first in time” is relevant today
§ General Rule:where more than one party has a valid claim, the court will recognize an undivided interest in the property in proportion of the strength of the claim
§ Popov v. Hayashi (2002)-Who had 1st possession of the baseball?
® Case: ball into stands, hit top of Popov glove, gets engulfed/trampled in crowd, ball free, and Hayashi picks up ball; Popov claims conversion (the wrongful exercise of dominion/control over another’s property) – who had 1st possession?
ÕPopov argues intent to catch the ball therefore owned ball when Hayashi got the ball; Hayashi argues stopping the ball means he has control (actual physical possession)
® Applied Gray’s Rule àmust retain complete control of the ball after incidental contact with people and things(achieve complete control at time when momentum of the ball and the attempting fan cease, BUT if before momentum ceased, the ball is dislodged by incidental contact, the ball is not possessed and the 1st person to then pick up the loose ball and secure it becomes its possessor
® BUT MUST CONSIDER MOB: would Popov had retained possession if not for the attack was unlawful action of the crowdà don’t want to promote violence in ascertaining the resource
Õwhere 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 others, actor has a legally cognizable pre-possessory interest in the property
® Ct. concluded meaning of possession was contextual àeach man had an “equal and undivided interest in the ball”

§ Wild Animals in their natural state are un-ownedà become private property upon being reduced to possession, different rules apply depending on the circumstances and customs
§ “First-in-time, First-in-right”
® Pierson v. Post(1805)- π hunting fox, and ∆ takes fox- who owns fox? ct. rules ∆
ÕRule: to have possession of a wild animal one must:
Ÿ intend to possess it, AND
Ÿ take away its natural liberty and have physical control over it (i.e. kill it, severely injure it, cage it, or tame it) – this is dicta
Õthis early authority wants to establish rule that can easily be appliedà possession shows ownership, as opposed to claim of pursuit (first in time, first in right)
ÕDissent: [Livingston] ideas of Barbyracà constructive possession
Ÿ animals may be acquired w/out bodily touch, provided the pursuer be w/in reach, or have a reasonable prospect of taking what he has thus discovered w/ an intention of converting to his own useà argues that if we apply majority rule (actual possession), then less incentive to chase
Ÿ idea of following the custom of local hunters
§ Customs and Usage
® Ghen v. Rich (1881) – should apply custom and usage
ÕRule: need an intent to control and doing all that is physically possible to gain control à here, physically impossible to take possession of whale instantly
® consider effects of deciding to reject or uphold custom:
Õbig picture: consider effect on people, the economy, the industry, and people in community
Õincentive argument (ex. don’t want to deter whaler; if any finder can take whale, people wouldn’t whale)
Õcustom is necessary to the industry à here, whaling industry would cease
Ÿ realize: customsare market- or locale- specific
Õconsider ability to attain literal control à would it be unreasonable in our society to require actual possession? here, YES
§ Keeble v. Hickeringill(1707)- cannot illegally interfere w/ possession of another
® Case: π runs decoy pond to trap ducks, and ∆ shoots gun to scare off ducksà π’s business effected and brings claim for value of the ducks, insinuating π believes he “possessed” ducks
ÕCt. rules for π but not b/c possession, but due to trespass and interference by ∆
Õ“where a violent or malicious act is done to a man’s occupation, profession, or way of getting a livelihood, there an action lies in all cases”
Ÿ ordinary competition in free territory is fine; can’t illegally interfere
® Constructive Possession: animals caught in a traps, or nets, belong to the one who owns and sets the trap or net- by setting such a trap, one is said to constructively possess those animals snared
Õ“Ratione Soli”- conventional view that an owner of land has possession- constructive possession- of wild animals on the owner’s land
Õnot actual possession but a type of possession treated as actual possession
® Trespass: a landowner is not regarded as the owner of all wild animals found on his property BUT a trespasser who kills game on another’s land forfeits her title in favor of the landowner- public policy (don’t want incentive to trespass)
Õtrespass v. possession of propertyàvalue of land v. animal, effects

pose of property rights is to serve human values and is limited by other human valuesà therefore, title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises
Õ“Relative” Rights of Property Owners: idea of property is NOT stable in all circumstances; varies based on circumstances and policies we want to promote
Ÿ limitations on right to exclude: civil rights legislation forbidding various forms of discrimination; rent controls and other limitations on a landlord’s right to evict tenants; etc
® Hinman v. Pacific Air Transport (1936)- landowner claims ∆s operation of commercial airplanes “disturbed, invaded, and trespassed” over “air-space” above his property
ÕCt. rejects Ad Coelum Doctrine: landowner owns everything ‘from the center of the earth to the sky’à traversing the airspace was lawful, not a trespass, therefore, the landowner was not entitled to injunction/damages b/c “no ownership of infinity”
Õpublic policy: disadvantageous economically if considered trespass
Õshaping policy: if “we” want something, then we can say the right to exclude doesn’t holdà π’s wouldn’t use land for productive use, and someone else can (i.e. airplanes)
Ÿ the benefit we have from air travel outweighs our rights to exclude BUT, in comparing to Jacques, the benefit we have to drive through someone’s property does not outweigh our right to exclude
§ Balancing the Right to Exclude Against Other Rights – CONTEXTUAL
® Marsh v. State of Alabama (1945)
Õ∆, a Jehovah’s witness, wants to solicit at company-owned town’s shopping center, they would not grant her a permit and she decline to leave when asked by the sheriff; court says since it is a “public” building, company cannot bar the Constitutional right to distribute religious materials
Õthe more an owner, for his advantage, opens up his property for use by the public in general, the more his rights become circumscribed by the statutory and constitutional rights of those who use it
ÕConstitutional rights of a private citizen give way to the property rights of the owners of the landà here, freedom of expression trumps freedom to exclude
Ÿ privately owned towns cannot be allowed to limit
Ÿ if we recognize this right to exclude, what will be the effect on the greater society (i.e. more company-towns, or modern day malls)
® Right to Life Advocates, Inc. v. Aaron Women’s Clinic(TX, 1987):
ÕConsidering the private use of the property (privately owned building) and limited public use, plus the nature of the expressional activity sought to be conducted there, this justifies limiting the scope of the defendant’s activity
ÕThe freedom of expression is interfering with the rights of the clinic to practice business lawfully à freedom to exclude trumps the freedom of expression
® N.J. Coalition Against War v. JMB Realty Corporation(1994):
Coalition wants to leaflet in shopping malls