Property I Outline

Real Property Outline
 
I.        Introduction
1.      First Possession: Acquisition of Property by Discovery, Capture, and Creation
A.      Acquisition by Discovery
1.      Discovery- the sighting or finding of hitherto unknown or unchartered territory. Frequently accompanied by a landing and the symbolic taking of possession.
2.      Rule: Law of Discovery
a.      First person to possess and tend (occupy and take care) + see it first + Christian person has to see it.
b.      Occupation of land or to occupy land ≠ possession of land. [You are merely occupying the land not possessing it] Just because you are there does not mean it is yours. (≠ title)
c.       The Principle of the First in Time
i.        The true possessor was the one with title Occupancy is not title, possession is.
ii.      Absolute title to land only exists in one party! It’s not first in time first in right, it is first in time Christians, first in right.
d.      Renting = physical possession, not legal possession
e.      Virginia Act of 1779- all deeds annulled between Indians and individuals for private use. This stated the acquisition and discovery rule. The government could get the land only
f.        Through the land grant you could purchase or conquest the land. Conquest- the taking of possession of enemy territory through force, followed by annexation.
g.      Johnson v. M’Intosh (British π’s claimed title to property conveyed to them by Indians prior to the Amer. Rev.. π’s said their title ran directly from the Native Americans who owned it so it was superior to the Δ’s grant from U.S. Gov’t. Ruled in favor of Δ’s b/c the Indians were not actually able to convey the land b/c they never “owned” it in the traditional sense of the word)
a.      Indians were not Christian.
b.      Indians had occupancy rights only, not possession
c.       Native American culture was migratory; they did not tend to the land. Scheme so they could discover America, so the title could be given as a grant by the government to displace Native Americans in a legal manner.(underlying government rationale)
d.      Rule of Law- US Government has the sole right of acquisition by the Indians. Right by the government to extinguish the Native Americans right of occupancy.
h.      Locke’s Labor Theory: 
i.        When you do labor to land, you provide ownership to land through one’s labor
ii.      Application of Locke’s Labor Theory: European views were that Indian occupancy did not involve an adequate amount of labor to perfect a “property” interest in the soil.
B.      Acquisition by Capture
1.      Actual Possession
a.      An actual taking of the animal.
b.      Close pursuit after a mortal wounding (or placed in a position where it cannot get away) gives a hunter a right of occupation of the fox that is superior to another hunter’s intervention. (Pierson)
i.        Pierson- Post was chasing a fox, Pierson intervened, shot the fox being chased and carried the animal off; Pierson won b/c Post did not physically seize animal before him.
c.       First to occupy (in Capture, to occupy means to possess. In Discovery occupation does not mean possession) = First in right
d.      Mere pursuit does not confer rights of possession. (Pierson)
2.      Doctrine of Custom
a.      Custom of any group or industry should be recognized only under certain circumstances: Smith v. Gifford (Precedent)
i.        When it’s application is limited to the industry (Ghen- whaling industry)
ii.      When the custom is recognized by the entire industry (Ghen)
iii.    When the custom requires in the first taker the only act of appropriation that is possible (Ghen- once whale is harpooned and dead it sinks then washes ashore)
iv.     When custom is necessary for the survival of industry (Ghen- ppl would not ever get to reap their kill) {Occupation of a whale = fatal shot is possession}
v.       When the custom works well in practice
b.      Local Custom – Dissent in Post, hot pursuit wins. Sportsmanship does not matter.
3.      Constructive Possession
a.      When there is a process of actually capturing the animal
i.        Example- Ghen: wait for whale to wash ashore after killing it
4.      Theory of Malicious Interference- Trade v. Sport
a.      It is okay to lure targets away, but not to be malicious and violent in scaring them in trade. Maliciously depriving one of their trade which limits their business and livelihood. 
i.        Keeble- decoy pond for ducks, π sued Δ for discharging guns and scaring ducks away, court held for π b/c of the disturbance preventing π from taking possession for his trade/business)
b.      Constructive possession suffices in trade
5.      “Fugitive” Resources
a.      Oil & Gas- minerals, ferae naturae, as animals. FUGITIVE
i.        They have a fugitive nature as that they don’t belong to anyone as they are rushing in the ground.
ii.      Cannot be captured. They migrate.
iii.    They have the power and tendency to escape without the possessor’s permission.
iv.      In general, they will belong to the owner of the land, but they can escape.
a.      “They belong to the owner of the land, and are apart of it, so long as they are on or in it, and are subject to this control, but when they escape, and go into other land, or come under another’s control, the title of the former owner is gone.”
b.      Groundwater: 
i.        Early on: Governed by English rule of absolute ownership under law of capture. Tap until you cannot tap anymore, without regard to neighbors.
ii.      Modern: rule of reasonable use.
c.       Surface Water:
i.        Western states have a rule of prior appropriation.
a.      First in time rule- first to use gains a vested right to continue that use
ii.      Eastern states- Riparian rights theories. Can take water from river or stream for reasonable use.
6.      Rule of Capture in Modern Times
a.      Popov v. Hayashi (Popov traded his seat to get a standing seat where the trajectory would take the ball his way. He claimed to Barry Bonds’ record-breaking home-run baseball. Popov caught the ball; a crowd came and made him drop it. Then Hayashi came and took the ball, security guards took Hayashi away; Popov- 1st catcher, Hayashi- 2nd catcher; Judge ordered ball be sold and the proceeds to be divided equally between the two men)
C.      Acquisition by Creation
1.      Intellectual Property (Property in One’s Own Ideas & Expressions)
a.      Doctrine of Misappropriation
i.        Unfair business
a.      International News Service- Court ruled in favor of AP, said abandonment is based upon intent. AP has no intent of abandonment. Just because the articles were on the bulletin board does not mean they aren’t trying to make money from it. Upheld Doctrine of Misappropriation.
b.      Exception
1.      Copyright and patent laws are exceptions to the common rule that you can copy your heart away. Congress regulated copying by instituting the patent and copyright rules.
a.      Cheney Brothers – court refused to use misappropriation doct