Property I Outline

PROPERTY

First Possession

I. ACQUISITION BY DISCOVERY
A. Law of Discovery (applies to nations not individuals)
1. Principle: “Discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.”
· exclusive right to purchase from the Indians resided in the government.”
· “Conquest gives a title which the Courts of the conqueror cannot deny.”
· “The title by conquest is acquired and maintained by force.”
· Amongst the European nations, who declared this law, the land claimed was decided by who got their first.
· Mere occupancy does not equal possession, therefore there is no right to sell.
· Abandonment equals loss of right to occupancy.
B. Discovery v. Conquest
1. Discovery – Acquisition by discovery entails the “sighting or ‘finding’ of hitherto unknown or uncharted territory; it is frequently accompanied by a landing and the symbolic taking of possession,” acts that give rise to an inchoate title that must subsequently be perfected, within a reasonable time, by settling in and making an effective occupation.
a. Discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or b conquest.
b. Conquest is the taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror.
C. First in Time – The first possession in time
1. Pros – It leads to security, certainty, public peace, established an expectation, it sets boundaries.
2. Cons – You usually don’t allow whoever finds something to possess it, in other words you don’t allow people to just find things and keep them. it wasn’t fair to the Indians and resulted in their dispossession.
a. Not equally applied. (In this case towards Native Americans, and the original occupiers in this case).
b. First in what?
D. Locke’s Labor Theory
1. Every man has property in his own person and when he take property and mixes it with his labor, it becomes his own. It helps the rule of accession.
a. Accession: A person who adds to the property’s value may not be able to take possession of the property.
2. Locke reasoned that you own the fruits of your labor in consequence of having “a property in your own person.”
II. ACQUISITION BY CAPTURE
A. Mere Pursuit
1. Pursuit alone vests no property or right. Taking of the animal, mortally wounding or greatly maiming the animal while still in pursuit, or actual bodily seizure constitutes occupancy. Animal must be deprived of its liberty. Escape has to be impossible.
a. First in what? Is pursuit enough? When do you have possession? Need sufficient capture – the animal must be rendered captured.
B. First Capture
1. When a whale has been killed and anchored and left with marks of appropriation, it is the property of the first capturers. The first bomb lance is enough to establish possession. The finder is not entitled to possession.
a. Custom: When and why should custom matter? In unique circumstances or business circumstances. Ex: entire whale business embraces the custom that the first iron to hold the whale establishes ownership.
C. Interference with Capture
1. Competition is lawful. Property may be employed for pleasure and profit. You can not maliciously interfere with someone else’s enterprise/trade.
a. Constructive Possession – An owner of land has constructive possession of wild animals on the owner’s land. Landowners are regarded as the prior possessors of any animals ferae naturae on their land until the animals take off.
D. Capture and Wild Animals
1. Trespass: A trespasser who captures a wild animal on the land of another might still have no rights to the animal as against the landowner, even though the landowner never had actual physical possession or control and even though the trespasser does. The court might say that the landowner had “constructive” possession of the animal.
2. NOTES:
a. Animus revertendi: an animal that returns to a certain place consistently (tame or domesticated). If you have a wild animal that has been trained to return to you, someone cannot claim or kill it. Tame-wild animals. If they are not trained to return, then use the general rule of capture.
b. Rule of increase – when you have semi-tamed wild animals that become pregnant, the babies belong to the owner of the mother. Promotes certainty, rewards investments.
c. Doctrine of self-help: take it upon yourself to do what you think is the correct thing to do. This is not supported because we do not want anarchy.
d. Unenclosed and unmarked, uncultivated land – people are allowed to trespass onto this land until they are notified otherwise (i.e. by No Trespassing Signs). Hunters can hunt for animals on this