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

Property – Spring 2014 – Prof. Jeremy Sheff

Unit 1: Introduction & First Possession

Possession By Discovery/Conquest:
Idea that Property can be acquired by discovery or conquest
The sighting or finding of thus far of unknown or uncharted territory
The taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror
Frequently accompanied by a landing and a symbolic taking of possession (the “putting the flag down” conceptàsymbolic)
Modern Implications of Acquisition by Discovery
Original Possession:
Taking possession of un-owned things is the only possible way to acquire ownership of them.
These rules establish order – spending all the time defending land and not making the most of it decreases the value and is unreasonable.
Relativity of Title:
[A] has rabbit. [B] takes from [A] and tames the rabbit. [C] takes from [B].
[B] has claim over [C], but [A] has claim over both.

Johnson v. M’Intosh (1823): M’Intosh acquired title to land under grant from the United States. Johnson acquired title to the same land by purchase from an Indian tribe. RULE: Title given to first “civilized” occupiers of land based on “first in time” principle; discovery vests title; justified by Locke (nomadic Indians didn’t blend labor with land) and English tradition. The right of occupancy is granted to conquered people, but NOT the right of title to dispose of land. Thus, Indians were entitled to occupy but not official ownership and therefore could not convey title to Johnson. M’Intosh wins!
The Indians had aboriginal title, which could be cut off at any moment by the U.S. as successors to the Euro discoverers of the land
Court reasoned that recognizing the right of the land to Indians will leave the land in a state of wilderness & uselessness
All institutions recognize an absolute title to land

Possession By Capture:
General Rule: A person who first captures unowned resources is entitled to the resources. Thus, who ever is “first in time” wins.
This rule has been applied to many different kinds of resources.
Creates “Original Possession”: Taking possession of unowned things is the only way possible to acquire ownership of them

Pierson v. Post (1823): While Post was chasing a fox, Pierson killed the fox, slug it over his shoulder and took possession of it. RULE: A hunter must either trap or mortally wound an animal in order to acquire title to it. Thus, Pierson wins! Pursuit alone does not vest a property right of a wild animal. Must take the animals “natural liberty (kill, mortally wound, seize it to cage or tame.
Wild animals may be one of the few things that are un-owned and susceptible to capture (there may be exceptions)
Advantages of Public policy: sense of security in transactions,
Disadvantage of Public Policy: the laborer doesn’t get credit and some get hurt.

Title to a Wild Animal is acquired by with
Glen v. Rich: Ghen (P) shot and killed a whale, which sank to the bottom of the sea. Three days later, Ellis found the whale on the shore and sold it to Rich.
Title to a wild animal is acquired when a hunter apprehends the beast in accordance with industry custom.

Industry Custom recognized as basis for property right when:
Its application is limited to those working in the industry
Custom is recognized by whole industry
Requires of the first taker the only possible act of appropriation
Necessary to survival of industry, and
Works well in practice

Industry Custom is bad when:
Formulated for the benefit of the industry but not society as a whole
May be dangerous to those employed in the industry
Wasteful of a resource (i.e., the whales that floated out to sea and weren’t recovered)
“Constructive” Possession:
Even if landowner doesn’t have “actual” possession of wild animal (as determined in Post), but does own the land, they own what is on it.
Landowner has constructive possession of any wild animal on their land

Keeble v. Hickeringill: When Keeble (P) lured wildfowl to his land with decoys. Hickeringill (D) frightened the wildfowl away by firing a gun. RULE: A person may not maliciously prevent another from capturing wild animals in the pursuit of his trade.

Interference with a non-competitorà If a person is in the process of entrapping animals; a competitor who also wants to capture the animal can interfere with the other person’s activity and try to capture the same animal.
BUT, a person who doesn’t want to capture the animal cannot interfere. (Policy, society wants the animal caught!)
NOTE: Hickeringill would be able to shoot to kill the ducks flying over his land to the pond.

Modern Implications of Acquisition by Discovery
Original Possession:
Taking possession of un-owned things is the only possible way to acquire ownership of them.

Who had first possession? (Take me out to the ballgame!)
Popov v. Hayashi: Barry Bonds hits a home-run and it lands first in the upper portion of a softball glove worn by Popov for about a second. As a crown began to bum-rush Popov, he is tackled and thrown to ground while in the process of trying to complete the catch. At some point during this mayhem, the ball left his glove and ends up o

that wrongdoers who trespass upon their land will be appropriately punished. This avoids the idea of anyone taking matters into their own hands.

Limitations on Right of Owners

State v. Shack: Shack (D) entered Tedesco’s property to give legal aid to a migrant farm worker. Shack refused to depart when Tedesco demanded. Shack is prosecuted for trespass. RULE: Property rights may not be exercised so as to endanger the well being of individuals.
Public Policy for this Rule:
Title to real property cannot include dominion over the destiny of people the owner permits to come upon the premises.
Their well-being must remain the paramount concern of a system of law.
An employer housing migrant workers cannot EXCLUDE union organizers from coming onto the property.

Possession of the “air and sky”

Hinman v. Pacific Air: (P)’s own a home in LA where (D) operates and flies airplanes over their land. (P) says the ownership of their land has been repeatedly disturbed, invaded and trespassed. (P) claim the “ad coelum” doctrine (property ownership from the center of the earth to the sky). RULE: An owner of real property is entitled to as much space above your property that they are using. No person can acquire title to the space above the owned land.
Literal construction of the “ad coelum” doctrine would bring about absurdity. The air, like the sea, is by its nature incapable of private ownership, except if the owner is actually using it.
Such use of “air” by an owner includes a 50 story skyscraper, etc.

Marsh v. Alabama:
A company town tries to exclude Jehovah Witness’ from handing out religious materials on the sidewalk within the town. Sign said “This is Private Property and Without Written Permission”. Here, the company town operates a “private” town and cannot operate the property as freely as a farmer does his farm because it is built and operated primarily to benefit the public. Since their operation is essentially a public function, the company town is subject to state regulation.
Rights of property owners are weighed against constitutional rights of individuals.