PROPERTY OUTLINE
I. Acquisition of Property by Discovery, Capture, and Creation
NOTE: Remember old idea of “FIRST COME FIRST SERVE”→ Henry Brinklow
A. Acquisition by Discovery
Johnson v. M’Intosh:
Quiet title action between grantees that purchased land from the Native Americans and subsequent grantees that purchased the land from the US government. The court found for the subsequent grantees.
Rule: The Indians that inhabited the lands did not have the power to convey title. Absolute title rested in the discoverer of the land, not the Indians that used the land.
Ø The court held that absolute title to the land in question remained in the discoverer, not the Indian inhabitants. The Indians retained the title of occupancy, but could convey nothing. Therefore, P did not receive legal title.
Ø You get started with first in time (whoever gets their first wins), and the native American were their first.
Ø Prior possession might not be a temporal concept (dealing with time) → it also involves religious, cultural and ethnocentric meanings.
Opinion by → Chief Justice Marshall
Arguments:
Johnson’s claim was the last link in a chain of title going back to the Piankeshaw, the aboriginal inhabitants of the land.
Could argue that after the War of Independence the sovereign’s rights were severed.
Justice Marshall rejects this by stating that Great Britain relinquished all claim, not only to the government, but to the property and territorial rights of the US. (The court cites an Act by Virginia which states that she has exclusive right of pre-emption from the Indians and also proceeds to annul all deeds made by Indians to individuals)
M’Intosh argued his title was better because it came from the US, although after the Piankeshaw conveyance to Johnson’s predecessor.
The property owner’s chain of title reaches back to a sovereign. When a sovereign is involved, conquest of the land is the best explanation for the creation of a property right. The Indians lost a protracted war and therefore cannot pass title to the land in question.
Justice Marshall qualifies his reasoning by stating that although the lands can be stripped away, “humanity” has prescribed a general rule that the conquered cannot be wantonly oppressed and should be fused into one society, however, governed as “distinct” people.
o The Indians were fierce savages that could not be assimilated, but those that were peaceful retained the right of occupancy. This view underscores that the Indians were viewed as an inferior society.
o Conquest gives title superior to all others.
·
imal must be within reach or have a reasonable prospect of taking.
Mere pursuit is not enough for legal remedy and not enough for possession → possession entails mortal wounding, trapping, or hovering over it.
He wants to create an incentive for people to work and it’s hard to do get someone to wake up early and go hunt and work hard, for someone else to come in and reap the benefits
Efficient test: quick way of deciding a case → 12(b)(6) → YES GOLFING
Not efficient: his test makes it impossible for summary judgment because of the word “reasonable” in the test; you must litigate the case and must defer to the sport, and that will lead to a battle of the experts. → NO GOLFING
The Court holds that it is more readily inclined to confine possession or occupancy of beast ferae naturae to within the limits of those mentioned above for the sake of PRESERVING CERTAINTY, PEACE AND ORDER IN SOCIETY.
