PROPERTY—Fogel, Spring 2010
Property = “Everything that can be owned”
Real Property = Land and stuff attached to it
Personal Property = Everything but real property
Intellectual Property = Intangible property – type of personal property
REAL PROPERTY vs. PERSONAL PROPERTY
Land = Real
House on Land = Real
Window (When carrying home from Lowe’s) = Personal
Window (After installed into home) = Real
Perpetuities = Idea that you can’t keep property constrained forever (“You can use it but you can’t own it” à This is not allowed forever)
CAPTURE
Capture = Applies to personal property only
Capture is to personal property as Discovery is to real property
Birder Case
FACTS: Texas has law that it is a crime to kill a domestic animal, but not a feral animal. A birder shoots a cat that lives under a bridge. The cat is fed by the toll keeper.
Is the cat feral or domestic?
Pierson v. Post
FACTS: P and his hounds are in pursuit of a fox, a noxious beast, when D intrudes, killing the fox and taking it away.
HOLDING: “It is admitted that …pursuit alone vests no property or right in the huntsman.”
RULE: P has no property right in a wild animal when P has only pursued the animal.
RULE: A noxious beast, feral animal, becomes someone’s property when there is…
1) Actual Possession (BIG ONE)
a. Holding in hands
2) Trapping
a. “Encompassing and securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their natural liberty, and render escape impossible”
3) Mortally Wounding
a. “Mortally wounding the beast along with continued pursuit…”
i. Mortally Wounding AND Continued Pursuit
1. Need both
DISSENT: This case should have been decided under what is customary practice for huntsmen.
Policy of getting rid of foxes is more important.
MAJORITY: Rule of possession provides more certainty.
Policy of certainty is more important.
BLACK LETTER LAW
Animus Revertendi = Habit of Return = A wild animal is un-owned until capture. If it escapes, then it reverts back to being a wild animal UNLESS it has a habit of return. If the animal has a habit of return, then it continues to be the property of the person to whom it returns.
Ex: Person who feeds deer. Deer have habit of return. Person occasionally kills and eats the deer.
– Doesn’t require that the return be to the owner’s property – just a habit of return to a place.
– No bright line for what “habitually” is
– It doesn’t seem fair to allow the deer feeder to sue a hunter who shoots one of his deer
o TAME DEER = Hunter should know by the animal’s actions. Tame deer will not run away from hunter, however hunter’s objective is to not be seen by the deer so he may not ever get the opportunity to discover that the deer is tame.
o KANGAROO = Hunter should know that a kangaroo is someone’s property because not normally in the woods of MO. So, shouldn’t shoot the kangaroo.
– Practically, the only time this issue will arise is when the owner sees the deer shot, or there is some identifying mark on the deer and the owner realizes the hunter shot the deer
o CAT IN TEXAS = no actual possession, maybe habit or return, maybe not
Keeble v. Hickeringill
FACTS: P has a decoy pond on his land to hunt fowl. D shoots his gun neat the pond, but while still on D’s own property, to frighten away the fowl and scare them out of P’s reach.
D only shot the gun to damnify P.
HOLDING: “Every man that hath a property may employ it for his pleasure and profit, as for alluring and procuring decoy ducks to come to his pond.” D is liable.
RECONCILING KEEBLE AND PIERSON
Keeble distinguishes Post. Keeble does not speak of actual possession, trapping, or mortal wounding. The two cases have different policy goals.
Pierson v. Post = Policy is certainty. The goal is to provide easy to administer rule. Certainty eliminates cases like Pierson from ever reaching this stage of litigation.
Keeble v. Hickeringill = Policy is more like the dissent in Pierson. The Keeble court wants a rule that encourages people to duck hunt. Competition is fine, but maliciously frustrating your neighbor for the sake of frustrating him is not. Certainty is great, but for purposes of public policy an exception is necessary
Ex: Ok to open a competing school, not ok to purposely block the road to the school so they cannot operate
HYPO
Harry the hunter and Greenie the air horn blower.
Remember that hunter harassment is another policy to consider because we don’t want people to harass people with guns.
Pierson Policy Jurisdiction = Greenie wins. Policy not interested in killing deer. Policy interested in certainty, actual possession, clear, bright-line rule.
– No problem with line-drawing
– Less flexibility
– Gets rid of dispute – litigation
– More efficient – don’t litigate about discrepancies
Keeble Policy Jurisdiction = Harry wins. Policy is interested in encouraging deer hunting If Greenie were in competition for the deer, then ok. Since he’s trying to save the deer, not ok.
(Unless Greenie goes around with Harry and sings all day and they never see a deer, then it cannot be said that the deer in the woods are still Harry’s – Policy only gets you so far.)
– Problem with line-drawing
o Does Harry have a property right in deer if he has gun on shoulder? Gun in hand? Getting in car to go hunting and Greenie slashed tires? There has to be a line.
– More flexibility
PIERSON = 99% of rule is Pierson. Ownership comes from actual possession. Possession is physical holding of object (animal). Pierson stretches it and says that there are some things that are as good as possession including mortal wounding or trapping.
KEEBLE = If possession rule is applied here, then the result is not what we like. D should not be allowed to act only for the purpose of frustrating the P. For policy purposes, applying strict interpretation of Pierson makes P never get his ducks. Keeble makes an EXCEPTION. If the D is not trying to compete, rather only trying to frustrate the P, then possession will be defined more broadly. Court willing in this instance to say that P owned the ducks. Court here ignores the “line-drawing” issue. What if P woke up in the morning and thought, “I know I’m not going to go duck hunting today.” Then D shot his gun on the hour every hour. Is D still “taking” the ducks? Even though P never tried to duck hunt, are the ducks still his? Tough problem, but probably not.
RULE: Ratione soli = The owner of land has constructive possession of the wild animals on his land.
Constructive Possession = “Pretend” possession
IMPORTANT: Distinguish that the animal is under constructive possession, n
s – and the news may no longer be gathered by anyone. It is a public policy argument because the public has an interest in getting the news.
COPYING
Promoting Innovation with Competition vs. Rewarding with Monopoly for Hard Work/ Effort
Cheney Brothers v. Doris Silk Co.
FACTS: P makes patterns for silk dresses. Some patterns are popular and others aren’t. They invest in making all the patterns and doing the research. D comes in and sees which patterns are popular and then copies. D is trying to capitalize off of P’s market research. Note that there is cost in the research – design 20 patterns, produce the patterns—see which one is selling and then work from there. D only has to see which is popular and then produce and sell.
NOTE: No copyright, patent, trademark apply here
– Partially due to timing – these patterns were only popular one season at a time. Once the patent would have gone through, the season would have been over.
– Partially due to expense – relatively expensive to obtain – relative in comparison to the other rights
HOLDING: P does not have a property right in the designs for the silks
RULE: In the absence of some recognized right at common law or under a statute, a man’s property is limited to the chattels, which embody his invention. (Unless there is a copyright, patent, or trademark etc., copying is acceptable.)
COURT: P asked only for a nine month limited monopoly. Court responded that if they only needed nine months, then the fact that they were first and the others have to get thier designs, copy, manufacture, and put the items out on the market should be enough to give an advantage.
NOTE: Name recognition is also a reason that the original manufacturers aren’t put out of business. (Another advantage)
COURT: INS v. AP is a specific case and it is impossible that the Supreme Court meant for it to apply in all general circumstances – especially since saying that you cannot reap what you have not sewn would set-up a monopoly on almost everything. The power to give a monopoly lies with Congress.
“It appears to us incredible that the Supreme Court should have had in mind any such consequences. To exclude other from the enjoyment of a chattel is one thing; to prevent any imitation of it, to set up a monopoly in the plan of its structure, gives the author a power over his fellows vastly greater, a power which the Constitution allows only Congress to make.”
Smith v. Chanel
FACTS: Smith claims in their advertisement that their product is the equivalent of the more expensive Chanel No. 5 perfume
HOLDING: Because Chanel No. 5 was unpatented; D has a right to copy it.
RULE: Absent a right at common law or under a statute, a man’s property is limited to his chattels.
