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Property I
St. Johns University School of Law
Hickey, James E.

PROPERTY

I. FIRST POSSESSION
A.     Introduction
1.       What is property?
a.       Tangible property – moveable and immoveable
b.       Intangible property – ideas, inventions, etc.
2.       What’s property law?
a.       Who owns it and how you acquired it – its not about the thing itself, its about relationships
3.       How do humans establish relationships related to property?
a.       By capture
b.       By creating
c.       By adverse possession
d.       By finding
e.       By gift
B.     Acquisition by Capture—Wild animals (animals ferae naturae) were possessed only when actually captured – first possessor has property rights
1.       Hunting Wild Animals. Property rights are acquired by the first to obtain bodily possession of the animal
·         Pierson v. Post – The pursuer of a wild animal does not acquire right to the animal.   
a.       In order to gain possession mere pursuit is not enough:
i.         need actual bodily possession, or
ii.       pursuit plus non abandonment of chase plus intention to posses:
1.       pursuit plus deprivation of natural liberty
2.       pursuit plus securing with nets and toils
3.       pursuit plus rendering escape impossible
4.       pursuit plus mortally wounding 
b.       Livingston’s Dissent – this is a sporting dispute, not a legal dispute; we should ignore legal philosophers because there was no fox hunting in their time
i.         If we are to look at philosophers we should look to Barberyac
1.       Within reach, or if not
2.       Within reasonable prospect of taking what he has just discovered, plus discovery, plus intent to possess.
i.         We want to encourage hunting because foxes are noxious beasts and if Pierson can just come down and take the beast, there would be no fox hunting
ii.       Reward the Labors
1.       Shouldn’t we reward the successful hunter to make fox hunting more efficient?
iii.      Livingston was dead wrong – Pierson killed the fox and should be rewarded, not Post who didn’t do anything to rid the world of the fox
2.       No appropriation by chance finder of dead whale—
·         Ghen v. Rich – Does the shooting and killing of a fin-back whale that is marked peculiarly give ownership to killer when the whale has been found 3 days later and sold, according to such usage? Yes
a.       Industry survived for so many years by this usage
b.       This will save the whaling industry – this won’t save the whaling industry, by ruling for Rich (against Ghen) fin back whaling will become more efficient
c.

ve known that whale belonged to someone else
4.       Luring wild animals to one’s property.
·         Keeble v. Hickeringill – Does P, Keeble, have a right to claim damages when defendant, intending to hurt P, set off a gun to scare away wild fowl that P had intended to attract? Yes. A landowner has a right to attract wildfowl to his property unimpeded by the direct interference of another aimed solely at keeping the wildfowl away. 
a.       Dealt with by the judge as a torts case (not property) – Malicious interference with trade (if Hickeringill had shot and taken away ducks as part of his business, then its ok, but not ok to just maliciously interfere with trade
i.        School Children analogy
b.       Can be argued as a property case
i.        Rationi Soli – if a wild animal is on someone’s property, for so long as its on your property, its your as if its attached to your property—anything attached to or under your land is the property of the owner
ii.      First Possession Rule – this is like Ghen