PROPERTY 1
CHAPTER 1
Professor Amy Ronner
First in time- who is first in point of time is stronger in right-the one that gets there first wins.
A. Acquisition by Discovery
Johnson v. M’Intosh
Notes and Questions Pg 19
B. ACQUISTION BY CAPTURE
Pierson v. Post
Notes and Questions Pg 23
Ghen v. Rich
Legal Arguments for class
Plaintiff (Ghen)
The custom and usage of the trade and Cape Cod- the person who kills a whale by using a peculiar mark or device on its lances-owns it.
If we were to use the Pierson rule of Justice Thompkins-of ” wounding, circumventing or ensnaring movement so as to deprive them of their natural liberty…”then the whale would belong to Ghen. Livingston- Ghen had reasonable prospect of taking as he killed the whale-he manifested the intent to use the whale for his own purposes.
Johnson
Haslem v Lockwood-
Swift v. Gifford- custom-
the iron holds the whale-the bomblance holds the whale and claims the property. Add with Livingston’s reasonable prospect of taking.finder of the whale v. the one who confiscated it. He does not lose his right if he leaves it a reasonable time. -according to Locke-the investment of labor is what defined the right of property-b/c Ghen shot and killed the whale-his investment of hunting the whale and shooting it with such precision as to kill it-shows his invested labor. Discovery makes an exclusive right-the first to spot the whale would be the rightful owner. First occupant is the one who puts the first mark on it. Making something useful-b/c Ghen is engaged in the trade and abides by the rule of the trade.
Respondent (Rich)
Look to Johnson case-making usefulness of the whale-Rich cultivated it by getting the blubber and the taking of the oil. Although Ghen lanced the whale, he let it go.
Livingston-
Swift-
Sportsmanship v. Commerce-economy of the two parties. Trade is about competition and Ghen should have found a way to secure the whale.
In that case the whale was harpooned and followed. Ghen made no effort to follow the whale. have to be within reach of reasonable prospect of taking-Ghen was nowhere around.
Blackstone-in Perrin v. Blake-” The law of real property in this country, wherever its materials were gathered, is now formed into a fine artificial system, full of unseen connexions and nice dependencies; and he that breaks one link of the chain, endangers the dissolution of the whole.”
Post (P) was hunting a fox with his hounds. Pierson (D) saw this happen and yet killed and captured the fox, claiming that P did not have control over it.
1. The United States traces it’s ownership of title by grants or patents to the discovery of America by the white man
2. Discovery-the sighting or finding of unknown or uncharted territory.
Quiet title action between grantees who had purchased land from the Native Americans and subsequent grantees who had purchase land from the United States.
Tell how the case began in the trial court and the legal positions of both parties (this is how Ronner wants the case to be told)
Right of occupancy-preemptive right-one party may have occupancy but the absolute title rests with the other and they may do whatever they please.
Occupants-can’t transfer title-may be able to go thru the motions until then there is a competing interest-attempt to transfer becomes whittled down.
Prior possession-is not always in tempural context-there is religious, cultural, and ethnocentric meanings/ the way they relate to the land?
According to Marshall-there was too much conflict between the Indians and could not be assimilated-and could not use the land as it was supposed to be used. (assimilation-European standards)
Rose (pg 18 quote)-the Indians lived with the land and did not possess it.
The tribes had possession of the land, and had title to the land’s occupancy, but were not able to transfer absolute title to another party. P appealed the court’s decision.
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.
Discovery of land gives an exclusive right to extinguish an Indian right of occupancy and this can be done by purchase or conquest.
Unpossessed-monkey wrench-
3. Conquest-the taking possession of enemy territory through force
4.
Haslem v Lockwood-Court found for the plaintiff after he discovered manure on the street and heaped it up but left it unattended overnight. Finder of manure v. the one that confiscated it.The manure was worthless before the plaintiff heaped it up and invested labor. “The investment in labor is what defines right of property”- Locke.
This was an action for trespass by one who was pursuing a fox for capture against a hunter who captured it
Procedure-verdict rendered for the plaintiff and defendant requested certiorari. Judgment was reversed as there is no legal remedy for this action.
Issue-Does a person who is pursuing a wild animal acquire a right to that animal by the mere fact of pursuit?
Property in such animals (fox-ferae naturae) is acquired by occupancy only.
Justice Thompkins-
mere pursuit does not equal possession-Some scholars viewed the right or possession of wild beasts was manifested by mortal wounding/pursuit-there has to be an extra step-where the pursuer manifests an unequivaocal intention of claiming the animal Pg 21-. Testlitigation.The reasoning for the outcome of this case was efficiency for the courts. Killed it, arrested its movement=most efficient to settle disputes.
he whale-so long as the claimant remained in fresh pursuit.
·
Called for the value of the carcass to be split between the first harpooner and the ultimate siezer.
This was an action for the interference of use of land, after the defendant was successful in scaring away the ducks the plaintiff lured in order to catch for his own benefit.
Keeble (P) placed duck decoys in a pond on his land to lure and catch wildfowl. Hickeringill (D) fired six guns laden with gunpowder on two different days in an effort to interfere with P’s use of his land. D was successful in scaring away the ducks from P’s land. P sued for damages and won 20 pounds. D appealed.
An actions lies where a malicious or violent act is done to a man’s occupation, profession, or way of getting a livelihood.
But no action would lie if one was competing in the same way for the same particular business
A party may not maliciously interfere with the legal use of the land of another.
Parties may compete freely in a marketplace but may not maliciously interfere with each other and their enjoyment of their lands.
Malicious interference with trade or competition.
(let’s pretend something is when it isn’t) possession)-landowners are the prior possessor of any wild animal on their land until the animals take off.
1. No official reports of judicial decisions in England prior to the 19th century
2. Ratione soli (by reason of soil/land)-
3. Deer hypo-1st hypo-if both hunters were hunting the deer-then it would take on the Pierson rule. 2nd hypo-if Y was trying to scare away the deer (animal lover) then would was it an interference with trade or sport?
owner of land has possession (constructive test-The property of wild animals may be acquired without actual physical touching (whether it be wounding etc) provided the pursuer be within reach, or have a reasonable prospect of taking and which he has the intention to converting with his own use. Livingston wants to foster a rule of law that is to make sure that the fox is captured. -The court found that without wounding or circumventing the animal would cause needless
Land-real property
Method in acquiring territory in international law-Discovery or conquest
8/18/03
