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

Acquisition of Property by First Possession
1. General principles of property
2. Title to Wild Animals
i. Possession – depriving the animal of its natural liberty
· Bodily seizure OR mortal wounding required to acquire title
· Pursuit alone is not enough (E.g. chasing a fox)
· mortal wounding or control of movement
· Control of movement does not necessarily need to be absolute or certain
(e.g. open fishing net)
· Policies:
· Rewarding effective efforts (e.g. whaling industry, or silver fox pelt industry)
· Reasonable expectations – reasonable certainty in the outcome of rule of law
· John Locke & Labor theory
· Generally, one owns a property right in the “fruits of his own labor”
· Law & Econ: maximizing wealth
· [insert example] · Custom of an economic industry may be relevant to determine proper title
[E.g. whaling industry] ii. Ratione Soli
· Exception to animal possession rule b/c owner of land has first right to possession
(i.e. ‘constructive possession’) of wild animals on the land
· Even where rivers/streams are navigable,
other rights (such as exclusive right to fishing) are not lost
· Policies:
· Discourages trespassing
· Exceptions:
· Public right of fishery in navigable waters
· Does not include animals w/ fixed habitat or little ability to move
(e.g. Mussels)
· The State could grant exclusive right of fishery, vitiating the ‘public right’
· Custom (E.g. [insert example])
· Escape – a qualified property right
· If a wild animal escapes, ownership rights can be lost (Common law rule)
· Escape = regaining its natural liberty (i.e. free and fending for itself)
· Escape not necessarily returning to its natural habitat
(E.g. Sea Lion [originally from Pacific] caught in the Atlantic )
· Exceptions:
i. animal shows an intention to return (animus revertendi)
ii. owner is in hot pursuit of the animal
· Policies:
i. 2nd appropriator should be awarded for his effort in capturing animal (similar policy to First Possession)
ii. Problems identifying the animal

· Policy:
· Owner will be unjustly compensated for the added value of the converted items (E.g. buttons)
· Only be available to someone who did not knowingly understand his wrongdoing
· Should not be available to a conscious, willful wrongdoer
· E.g. in Mckee, defendant thought he was entitled to mussels b/c he thought the state had title to them
Acquisition by Creation
Property in One’s Ideas and Expressions: Gen. Principles of Intellectual Property
Competing interests:
Incentive to create – proprietary right to the commercial exploitation of your creation
Unfair competition – Competition depends on imitation
· Allows quality of inventions to improve while lowering its cost
Inventor may not be better off by imitation, but public as whole is better off, so long as this freedom to imitate does not