Property 1 – Spring 2014 – Professor Eppinger
Possession
5 Principles of Original Acquisition
A. First Possession = Occupancy
1. What is Possession (or occupancy)?
a. Pierson v. Post
b. Ghen v. Rich
2. Re Personalty
a. Bailment v. à hands on it
b. Constructive bailment à assumed or constructive possession is conferred to you
3. Abandoned or lost property on public space
a. Law of Salvage à Eads v. Brazelton p. 107 à Finder of the shipwreck
– Possession requires more than notice
– Requires acting to achieve dominion and control
b. “Qualified Right to Possession” aka “Legally Cognizable pre-possessory interest”
– Exclusive right to pursue possession w/o interference
– Popov v. Hayashi (Barry Bonds Case), mineral leases, pedis possesio
4. Res nullius on terra nullius?
a. Res nullius = the thing of no one
b. Terra nullius = No
c. Types of Property along Commons Contiuum:
– Open Access Resource (Forest Park; Ocean; Public Domain in federal lands and in i.p.)
Ø No exclusion feasible
Ø Governance: limited use v. unlimited use
– Commons Property (country club)
Ø Outgroup excluded
Ø Governance: norms/regulations
– Semicommons (mixed regime of common and private)
– Private Property
Ø Owner right to exclude
Ø Governance: owner despotism à owner gets to decide on how to manage the property & decides how to exclude
– Anticommons
Ø All/many right to exclude
B. Discovery à Johnson v. McIntosh
1. Confers dominion (political sovereignty over land)
2. Dominion has precedence over occupancy
3. Like first possession à First-in-time principle (First to discover or claim land gets first possession)
4. Unlike first possession à does not require actual physical occupancy (to be called first discoverer/claimant)
C. Creation
1. International News Service v. Associated Press
a. Whereas news itself open-access resource, court finds, “quasi-property right” in the business of distributing hot news
2. Midler v. Ford Motor Co.
a. Celebrity has right to publicity in distinctive aspects of public persona à like Bette Midler’s voice
3. Trenton Industries v. A.E. Peterson Manufacturing Co.
a. Patent law separates “novelty” from “nonobviousness”
b. Here, claim fails as lacking “enough” inventiveness or creativity to cross “non-obvious” threshold
D. Principle of Accession
1. Family of doctrines which share a common feature à Ownership of some unclaimed or contested resource is assigned to owner of some other resource that has a particularly prominent relationship to the unclaimed or contested resource
2. Increase
a. Who owns the apples in an apple tree? à the owner of the apple tree
3. Accession – 3 elements (Wetherbee v. Green)
a. Mental State of Improver
b. Degree of Transformation of object
c. R
1 Wins
– Clark v. Maloney à 2-step proof of Trover à (1) Logs were P’s à (2) Logs were converted by D to his own use
c. If C1 or C2 = (not TO) à then for any C1 v. C2 à C1 wins
– Anderson v. Gouldberg
3. Actions
a. Trover = a common-law action for the recovery of personal property, the damages being measured by the value of property
b. Replevin = an action in equity for the repossession of personal property wrongfully taken and detained by D
B. Type of Property à Effect on Finder’s Possession Claim
1. Open Access Resource (i.e., Beach) à First in time, first in right UNLESS modified by custom
2. Commons Property (i.e., Country Club Golf Course) à First in time, first in right UNLESS modified by custom
3. Semicommons OR Private Property à Landowner à Usually has “Constructive Possession” of whatever is on her property, regardless of whether she knows it is there or not
a. à but vs. finder of lost/abandoned goods à landowner loses
b. à But vs. finder of thing found under soil rather than on the soil à Landowner wins
c. à vs. finder of mislaid property (goods intentionally set down by owner who forgot to pick up later) à Landowner wins
