PROPERTY OUTLINE [SPRING 2014 – WILSON]
1. CH. 1 → ACQUISITION OF PROPERTY RIGHTS: A FIRST LOOK
A. Introduction
B. What is Property?
§ Wilbert E. Moore: property consists of “institutionally defined and regulated rights of persons (or other social units) in scarce values.
§ Willard Hurst: the legitimate power to initiate decisions on the use of economic assets.
§ Emphasizes two aspects:
o What actions can be lawfully taken by the holder of rights (the “owner” of the property”)
o What are the objects (“scarce values” or “economic assets”) with respect to which such actions can be taken
§ In our society, assets are typically individually owned
o True joint ownership is the exception, not the rule
§ Some states recognize community property, others default to individually own unless special arrangements are made.
§ We do recognize ownership by aggregate – e.g. “legal entities” such as churches and governments can own property (they are treated as individuals this way).
o These entities are or can be immortal, so no need for wills.
§ Rules of property succession is different for legal entities than it is for individuals.
§ What is and is not property is a social line and is drawn for social reasons.
§ Job tenure is like a property right in that it is legally secured from adverse action
§ Pension rights – not property in the sense of marketable assets. Not transferrable.
o Social security rights are like some private pension rights.
§ Some assets stand outside the property system because they are permanently vested in the commonwealth – e.g. typewriters at the local IRS office
§ City streets, national parks, zoos and museums are public property of a different sort, and access to these is truly open to all.
§ Something is property if it is scarce AND something is property if the legal system identifies it as such by permitting it to be exchanged on the market.
C. Acquisition of Property Rights by Capture
I. Pierson v. Post (1805)
I. Facts:
§ Post was in pursuit of a fox while hunting with his hounds.
§ Pierson killed and captured the fox despite knowing that Post had been pursuing it.
§ Neither party owned the land on which they were hunting.
§ Post brought suit in trespass on the case, contending that he acquired title to the fox when he began to hunt it.
§ Pierson asserted that Post did not have control over the fox and therefore had not acquired any property interest in it.
II. Issue
§ Does the mere fact that a person is pursuing a wild animal grant that person a right to the animal?
III. Holding and Rule
§ No. The mere fact that a person is pursuing a wild animal does not grant that person a right to the animal.
§ In order to obtain title to a ferae naturae (wild animal) a person must take it.
§ The “first to kill and capture” is the superior rule of law.
§ Had Post mortally wounded the animal, it would have been sufficient to show possession since this would have deprived the animal of its natural liberty.
§ However, the plaintiff was only able to show pursuit and therefore acquired no property interest in the animal.
IV. Disposition
§ Reversed.
V. Dissent
§ The death of a fox is a matter of public interest.
§ As a matter of public policy our decision should offer the greatest possible encouragement to the destruction of this animal.
§ Because it was nearly certain that Post would have captured the fox the judgment should be affirmed.
VI. Questions:
§ Post probably confronted Pierson and said that was wrong, he almost had him, and Pierson probably said no it's mine, I killed it. After that, Post probably went and filed suit against him. The trial court probably heard all the effort that was put in by Post, and since fox hunting was a well-recognized occurrence then, found in favor of him. That is not the opinion of this court – this court said that unless you significantly injure or kill the animal (deprived him of his natural liberty) he is not your property.
§ Trespass on the case: at common law, an action to recover damages that are not the immediate result of a wrongful act but rather a later consequence (black's dictionary).
Writ of certiorari: appeals court agreeing to review a lower court's decision to determine if there were any irregularities.
3 Caines 1175 (1805) – the citation and the year the case was decided.
§ v. W – replevin and detinue
P v. P – was trespass on the case – it failed because his act was productive of no injury or damage for which a legal remedy can be applied.
§ Post is not entitled to any relief against Pierson because there is no legal remedy to fix what occurred
§ Post’s counsel advised him to litigate on the basis that NY did not import the CL of England, so there was a possibility that the court would find in favor of Post, since it was previously undecided.
§ I would have also suggested that it be settled by a gaming commission or something similar, because it was a violation of the rules of the game, not necessarily of the the law, so it should be decided by someone who focuses on the game.
§ Is there a question here?
§ What Post sought to recover was probably considerably less than what the lawsuit cost. But, he probably wanted to try and set a precedent for the sport of fox hunting, that it was not acceptable to swoop in and take another's capture/kill. I would not have advised him to proceed with the case.
§ Question?
§ Question?
§ Majority: Pursuit of an animal does not give one a legal right to it – one must severely maim or kill the animal for it to become their property.
§ Minority: If the pursuer is within reach of reasonably capturing/killing the animal, then he was possession of that animal.
I think both arguments could be adopted into public policy arguments. For the majority, it makes sense to persuade people that you can't just pursue something and expect that to be enough — there needs to be a substantial step taken to take ownership. The same can be said for the minority opinion – to say that if you dedicate a lot of time and effort to pursuing something, and are within a reasonable distance to obtaining it, it should be yours regardless of another's interference.
§ NewPost should win, because it was on her land. Location is very important – if it is unclaimed land, then all property there is unclaimed. If it is owned land, then everything there is owned by the owner of the land. Separate cases should be determined to be alike or unlike based on the essential facts – location, type of property, connection between parties, etc.
B- Yes, those facts woul
the profits divided equally.
V. Questions:
Pursuit as compared to pre-possessory interest. I think Pierson would have decided the case in favor of Hayashi. The dissent I think would have found in favor of Popov.
I think it should – Popov likely realized that something similar to what happened would likely happen, and he was willing to take that risk for the reward, so the outcome should reflect that.
No, I don't think it should, because division of the proceeds of a sale of a property is easier to oversee and divide than to split the ownership and continued ownership of property – the court would have to manage and assign an arbitrator for any disputes for the lifetime of the ownership.
D. Acquisition of Property Rights by Find
I. Introductory Note
II. Favorite v Miller
I. Rule of Law:
§ A wrongdoer should not be allowed to profit from his wrongdoing.
§ Since the finder did trespass, the fact that he was trespassing was sufficient to defeat any claim to the property which the defendant might otherwise have had as a finder.
II. Facts
§ At the beginning of the Revolutionary War, a group of patriots dismantled a statue of King George III in New York City, bringing the pieces with them on their way through New England.
§ While in Connecticut, the pieces were recovered by a group of loyalists, who buried them in different areas, to be recovered at a later date.
§ Many of the pieces were never recovered.
§ In 1972, Louis Miller (defendant) entered upon the land of Mr. and Ms. Favorite (plaintiffs) after hearing that a piece of this statute might be buried on the land.
§ Mr. Miller was aware that the property on which he was entering was private property.
§ Through the use of a metal detector, Mr. Miller found a piece of the statue, dug it up, and entered into a contract to sell the piece to the Museum of the City of New York for $5,500.
§ Mr. and Ms. Favorite then brought this action against Mr. Miller.
§ The trial court ruled in favor of the Favorites, determining that the piece was mislaid and therefore belonged to the Favorites because it was located on their property.
§ Mr. Miller then appealed to the Supreme Court of Connecticut.
III. Rule of Law
§ A finder will lose his right to a piece of property if he obtained said property by knowingly trespassing on another’s land.
IV. Issue
§ Is a finder entitled to keep a piece of property if it is found on land on which the finder is a knowing trespasser?
