Property Outline
Part 1.
Chapter 1. First Possession: Acquisition of Property by Discovery, Capture, and Creation
Acquisition by Discovery
Johnson v. M’Intosh
There was an ejectment brought by the first purchaser of the Indian land against the later grantee from the United States government, seeking sole possession of the land.
Facts: 1st grantee bought land from Indians. Later, same land granted by the United States to second grantee. Second grantee ejected first grantee. First grantee sued second grantee to regain land.
Issue: whether the Indians have the power to give land they occupy to private individuals.
Rule: Acquisition by Discovery gives title to discoverer despite occupation by persons who are inferior to discoverer and who have not commercialized the land.
Reason: The Indians cannot give the land away because the title owners are the United States who received the recognized title from Great Britain; the Indians are just occupiers who were inferior to the discoverer and had not commercialized the land.
Professor Notes:
v Who is first in point of time is stronger in right…in this case it does not mean first in actual time, but first in time who is qualified to be recognized.
v It is the Brit’s fault: They discovered, conquered, and secured absolute title. Then the title was transferred over to the U.S., who is the powerful body and makes the rules.
v Judge Marshal’s conclusion came first à then he had to go back and create valid reasoning for the rule. His conclusion had to come first, because the U.S. is the power holder.
The people sitting on the land when it was supposedly discovered were not on our level. (White & Christian)
v Locke’s Labor Theory – you take something out of its natural state by labor, and it excludes that property from any other man.
Ø The Indians did not make the land better, but moved about on the land and did not claim it as their own.
v CONQUEST: to take property by force
v DISCOVERY: takes control of land where someone else may already be.
v POSSESSION: legal entitlement to property
Haslem v. Lockwood
Manure scattered in street raked into pile by laborer and then left it there to pick it up the next day because he did not have the means to pick it up at that time. Collector came along and took manure pile away and sold it.
Trover – old common law pleading to recover damages for wrongful taking of property.
Reasoning: Laborer changed the natural condition of the manure by raking it into heaps; he used his LABOR to enhance its value and acquired it. (Locke) Finder did not lose possession of the manure by leaving it over night because the means to haul it away were necessary.
Acquisition by Capture
Pierson v. Post
Hunter is suing killer for trespassing on a fox that he was in pursuit of, and carrying th
interest of the farmer and society. He wants to protect the hunters who do this justice for society.
Ghen v. Rich
Whaler is suing whale finder, for the price of the whale. Whale finder auctioned off the found whale instead of announcing the find to the whaler, as was custom.
Facts: Whaler shot fin-back whale with a bomb-lance and killed it instantly. The bomb lance was marked so it could be identified as the whaler’s. When shot the whale sank to the bottom of Massachusetts Bay, which happened regularly. Three days later the whale was found 17 miles from the spot it was killed by the finder and it was then auctioned off. The whaler found out about the whale three days after the whale was discovered and sent his boat after it. When the boat arrived it was discovered that the finder had auctioned it off.
Issue: Did the whale go to the whaler, who shot and killed the whale, but did not capture it as was custom, or to the finder, who found the whale dead on the beach.
Rule: When local custom establishes how title passes from wild animal to hunter, the local custom rules regardless of who captured the animal first.
Reason:
