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Property I
St. Johns University School of Law
Parella, Robert E.

Possession of Wild Animals: acquiring title
1) Definitions:
a) Wild Animals: does not include domestic or domesticated animals
b) Possession: involves
i) physical relationship and
ii) some intention to appropriate (broad general sense)
2) General Rule: Gaining Title: The Rule of Capture for Wild Animals:
a) Deprive of natural liberty;
(1) Not Enough:
(a) pursuit alone is not enough; Pierson v. Post
(2) Enough: Ultimate Control, need not be absolute:
(a) mortally wounding, render escape improbable
(b) Industry custom: do all that is practical to assume possession based upon circumstances
(i) iron hold the whale because whales are so big
2) Purpose/Policy:
i) Competition goal to kill animals; conservation policies have altered this
ii) Labor theory: encourage industrious; who did all the work; want to reward efforts esp when significant financial concerns ; However: must come to fruition; must be effective; e.g. never got around to patenting an idea, but it was still my idea; pursuit alone not enough
iii) Economic theory: protect and develop industry
iv) Gratifying reasonable expectations
v) Ease of administration; categorical rules lead to certainty
3) Exceptions/Limitations to the Rule of Capture of Wild Animals:
a) Ratione Soli: possessor of land has superior opportunity to appropriate things on the land; title to all animals captured on land; NOT deemed in possession
(1) Policy: discourage trespassers
ii) Malicious interference with another’s livelihood; Keeble, D shot off gun and scared away interfering with duck decoy;
(1) Policy: Unfair competition
iii) Exception to Ratione Soli–Navigable waters: owners of navigable waterway cannot stop because of public right of fishery
(1) Note Exception: Mussel case; not right of “fishery” because sedentary
(2) But note state can grant exclusive fishing rights to rivers that are navigable in fact e.g. Douglas lodge
4) Losing Title/Rule of Escape:
a) Basic idea: title can be lost because it is a qualified property interest,
i) peculiar to wild animals
ii) NOT applicable to domestic or domesticated animals e.g. Chester the parrot
b) Definition:
i) Must regain natural liberty in broad sense
(1) Enough:
(a) Fend for itself
(b) Free from artificial restraint
c) Policy
i) Labor Theory and Reasonable expectation in favor of second appropriator (seal case)
ii) Need not regain natural habitat (Pacific sea lions escape into Atlantic)
iii) Practical: identity issues; litigable factual issues
d) Oil and gas analogy; ability to move freely; might shift without will of landowner; e.g. ok to extract gas of another if shifted under property
i) Policy: effort; reasonable expectation; identification;
e) Exceptions to Rule of Escape
i) Animus revertendi: habit of return
ii) Hot pursuit proximity in time and space
iii) Public Interest or Special nature of some activity unknown at common law; silver fox fur breeding
(1) Zoos, breeding; Lion cub in NYC
(a) Lowered expectation on part of second appropriator
iv) Accession: property conversion; under certain circumstances chattel loses its former identity
(1) Denies owner replevin; allows only for conversion: value of chattel at time of conversion; e.g. mussels processed into buttons; grapes into wine; canvas into Picasso
(2) Not intended to protect conscious willful converters
(3) Policy:
(a) Labor
(b) Windfall

Analogy: Oil and Gas and Wild Animals Rule of Escape
Reasons behind the rule and policies for wild animals similar to oil, water, natural gas

Propensity to escape
Policy reasons: competitionèpromote extraction of oil and gas
But what about “a lot work” argument?: B also drilled on his own land; a lot of work; reasonable expectation that oil will be his

Expectation of fisherman with sea lion

Maintain industry standard; (like whale case) best way possible to extract oil and gas
Problems with analogy:

Identification: how does one prove whose gas was whose?
Downside: competition not concerned with conservation issues

Acquisition by Discovery
1) Discovery Principle: recognized method by which nations become owners of land through discovery and conquest; international law; nations among themselves decided
a) Native Americans had a limited right of occupancy, not possession
b) Government can extinguish right by conquest and purchase
2) Johnson v. M’Intosh; Chief Justice Marshall; 1823; Dispute over conflicting titles from two different conveyors (U.S. government and Indian tribe)
a) Native Americans argument: first in time took possession e.g. Pierson right of first possession
b) Holding: U.S. has superior title based; not about first in time
i) Philosophy: invokes natural law and positive law (principles own government has adopted)
(1) Problems: U.S. government never paid for the land; usually needs to be some good reason for conquest
(a) Apologetically Marshall refers to “fierceness” of Native Americans
(b) Use of land “left in wilderness”

Acquiring property rights in some “thing”
§ Development of commerceèOwnership of intangibles
§ Bodies of law:
· Originally: unfair competition
o Keeble duck decoy
o Policy: favored free trade, but not malicious interference with livelihood
· Palming off: passing off your product as if it were somebody else’s
· 20th Century: intellectual property and trademarks
· Trademarks: injury to property right in name infringement
o Policy: confusion on the part of the public; potential injury to the public
o Lost sales for business (injunction, plus accounting for profits)
o Dilution: independent injury; association causes loss of value; weakens trademark; must be a strong trademark; prove pecuniary damage

Acquisition by Creation
1) Property in Intangibles
a) Creating something: first in time; proprietary right to commercial exploitation, different than from ownership of an entity
b) International News v. AP; 1918 U.S; News among competitors is quasi property;.; can’t own the “news”, it’s a public right BUTèquasi property
i) labor theory: P should not be able to benefit from the fruit of P’s labor precisely at the point when profit is to be reaped; s

ii) Legislature should handle solution; court has a very limited view solely based on the record; legislature can have detailed hearings
iii) Fair balancing against policy issues;
iv) POLICY: research concerns
v) Dissent: no authority barring recovery
(1) Common law question: need to face new questions; stating we have no authority, no precedent is not really sufficient
(2) Accession: cell line so different from tissue; can’t replevy new thing
(3) Causal connection: between injuries and doctors lack of consent an if full knowledge would have rejected; can only sue doctor not necessary researchers; limited as to potential defendants
(4) Unjust enrichment; quasi contractual right; restitution damages; person should not be able to profit at another’s expense; no reaping the profit from wrongful action
b) Hecht case came out of the same state: Surrogate mother; disputes about keeping the baby
i) Surrogate contracts eventually deemed unenforceable after lengthy hearings
ii) Sperm property that can be bequeathed under the will
(1) BUT bigger problem child conceived after the death of ancestor deemed a child; shelf life of frozen sperm 100 years?!
iii) Blood and sperm regenerate; kidneys do not;
c) Pro/Con arguments:
i) Don’t want people selling their property rights in body parts;
ii) Would prices be regulated?
iii) Fallacy to say that because you can’t sell, doesn’t mean you can’t own; kidney (able to donate; transfer by gift; can’t sell wild game; can’t sell life interest in trust )
(1) Bundle of rights: property interest in some things; right include and exclude (right to possess use, enjoy and to use it exclusively; right to transfer [sell, gift] or alienate); about legal relationships with other people; rights and duties; pg 90…footnotes 38-40; 93, footnote 42
(a) Ownership becomes important in relation to others
d) What are the incidents of ownership with regards to the bundle of rights
i) Jacque v. Steenberg: trespass to land; best/only route 7 ft of snow; despite protests of property owner, D trespassed; verdict for property owner; There was an alternative route, but it was more inconvenient
(1) Ought to be able recover value of use and occupation even though no physical damage
(2) Fundamental ownership is right to exclude
(3) Breach of right to exclude
(4) Nominal damages not inconsistent
(5) Actual damages: a taking of the use of that property; e.g. cabin hypo fixed, kept neat and tidy; deprived owner of use and occupation