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Property I
SUNY Buffalo Law School
Su, Rick

Professor Rick Su. Property I Spring 2012
Possession
Pierson v. Post (1805) p. 152.
–          The hunting a fox case, one man interrupts the hunt of another man and kills the fox which he was chasing.
–          The issue is when does a wild animal become ones property.
–          The rule is: Simple tracking the animal is not enough to claim property over the animal.  Actually taken control of the animal after killing it must be done.
–          Pursuit is not enough
–          But if someone is in pursuit and has injured the animal it may not be interrupted because the person that has hurt it intends to use it for himself.
–          Did Post have ownership/possession of the fox by merely pursuing it?
–          Post lost – didn’t deprive the animal of its freedom, only pursued the animal.
–          Possession of the ducks possession – Able to possess the duck through the ownership of the lake, which the ducks land upon. Decoy Lake to draw ducks to the lake.
–          Precedents:
1) Justinian’s Instructions: Pursuit is not enough, wounding is not enough, must have physical possession
2) Puffendorf: occupancy of the wild animal must be actual corporal possession is the gold standard but a mortally wounded animal may not be fairly intercepted by another while pursuing the animal which you wounded.
3) Barbeyrac: That actual bodily seizure is not necessary to constitute possession of wild animals. The pursuer must have an equivocal intention of capturing the animals to his individual use. Must not abandon pursuit. Must deprive him of his natural liberty and bring the animal into certain control.
Popov v. Hayashi (2002) p. 156.
–          Barry Bonds baseball case.
–          Possession exists when the actor actively and ably engaged in efforts to establish complete control, (if the acts are) reasonably calculated to result in unequivocal dominion and control at some point in the near future.
–          The court uses Gray’s Rule – The tenant of gray’s rule is that the actor must retain control of the ball after incidental contact with people and things.
–          When an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. That pre-possessor interest constitutes a qualified right to possession which can support a cause of action.
–          Popov had a pre-possessory interest in the ball but the crowd robbed him of it. Hayashi not part of the crowd but a victim of it found the ball and put it in his pocket having complete dominance over it. But it would be unfair to each party to remove from either.
–          The court claims they have a equal and undivided intent in the ball, it must be sold and the proceeds divided equally.
Elliff v. Texon Drilling Co. (1948) p. 160.
–          Elliff plaintiff sued for a blowout gas well caused by texon drilling co.
–          The well blows up and a massive crave in occurs and it erupts with fire.
–          Texon uses the law of capture – you don’t own oil until you possess oil, don’t possess it until you capture it.
–          But in Texas – A different rule exists, the oil is a part of the reality.  The land owner is regarded as having ownership over oil and gas beneath his land.
–          Louisiana – uses the law of capture, you can extract as much oil as possible although you cannot calculate who owned what oil.
De Peyster v. Michael (1852) P.71.
–          Land owner, Van Rensselaer “leased” his land to Snyder with the condition that each time Snyder sold the land or leased it he owed ¼ of the sales to Van Rensselaer. 
–          Any violation of the contract would allow Van Rensselaer to repossess the land.
–          Before selling the land or assigning it to someone else, Snyder (or following owners) must first offer it to Van Rensselaer.
–          Snyder must pay 48 bushels of wheat to Van Rensselear a year.
–          Van Rensselaer assigned his ownership to Depeyster and Snyder assigned his ownership to Michael, the obligations are passed through the land.
–          The issue is whether placing contractual provisions on a fee simple is valid or void, or is it a restraint on alienation (selling/disposing of it).
–          Restraint Alienation is void upon fee simple.
–          There can be no restraint alienation on fee simple.
–          But the restraint alienation is OK in lease in life or lease in year (renting).
–          When renting an apartment you can’t sell or lease to someone else but fee simple you can sell or lease it to others.
–          Fee simple is basic ownership of land, you bought it, you own it and no else has an interest in it.
–          Now the question is did Snyder lease or buy the land? The court held that he bought it, it was a fee simple and there is no restraint.
–          Fee simple – why is there no restraint, Well there is a fundamental nature to own the land. It interferes with economic markets, we will want to sell out land. People need private property for the development and exercise of liberty.  Market transaction can’t simple attach provisions to contracts that control a person’s decisions after an individual no longer has ownership of it.
–          Why is paying ¼ of the amount a restraint on alientation?
–          Well, you say a ¼ is ok what if it gets up to 90%. The 90% is a clear restraint.
–          You can’t simply draw a line, too many regulations will push people to not sell their land. Also, because the contract requires the leasee to offer the property to VanRensselaer decendants first, the leasee does not have complete control of who to sell to.
Tapscott v. Lessee of Cobbs (1854) p. 177.
–          Thomas Anderson is the original owner of the house, he dies and leaves a will marking John Harris, Robert Rives, and Nate Anderson as the executors.
–          His will commanded the executors to sell the house.
–          The executors sell the land at a public auction, which Mr. Lewis Purchases in 1825.
–          She moves in and begins to make renovations. She lived on the land until she died in 1835.
–          Tapscott moved onto the land in 1842 and had it surveyd in 1844.
–          Lewis never paid Rives and Rives was still owed money which he still owned to the rest of the executives.
–          Then Cobbs, an heir of Lewis, comes in and tells Tapscott you don’t have title you must leave the land.
–          The Court says Cobbs can’t simple say that you don’t have title, you must show you have title or possession (Peaceable possession).
–          The first peaceable possessor has rights over the other peaceable possessor.
–          Although no one has the title we will give the right of the land t

held to be a trespasser in a company owned town (Marsh v. Alabama). The right to peaceably picket in a privately owned shopping center. They rest upon the fact that the property is in fact open to the general public.
–          Also, this is distinguish because the farm land isn’t opened to the public.
–          The defendants then argue that the application of the trespass statue is barred by the Supremacy clause.
–          The defendant’s rely upon the National Labor Relations Act, holding the an employer may in some circumstances be guilty of an unfair labor practice in violation of the statute if the employer denies union organizations an opportunity to communications with his employees at some suitable place upon the employers.
–          State Law – the court rejects those arugments and Instead looks to state law. Look to the policy and balance the workers interest to have medical services, right to privacy, dignity, and the right to associate versus the owners right to exclude.
–          Tenants versus workers – Tenants have certain freedoms that the land lord cannot intrude on. The workers just having a place to sleep isn’t owed those obligations.
Desnick v. American Broadcasting Companies, Inc. (1995) p. 8.
–          The plaintiff own the Desnick eye center.
–          They were contact by ABC and were told Desnick they wanted to do a broadcast on large Cataract Practices.
–          ABC told them the segment wouldn’t have any undercover surveillance or ambush interviews.
–          The segment turned out to be filled with undercover surveillance and the plaintiffs said it violated their property rights because ABC was only allowed on the property because the consent was Fraudlently obtained.
–          The court notes that every time we get consent through fraud it isn’t always wrong. Sex with promises of Love is ok and sex with promises to give 100 bucks even though the money is fact is ok too.
–          The court looks to Misrepresentation of entry – The busybody example (A homeowner lets a person into the house who said he is a gas man, but it really is just a busybody, this would be a trespass).
–          Even though a person may enter another’s land with a different intention than what the owner believes, a trespass will not occur until there has been an interference with the ownership or possession of land. Undercover videos of professional communications do not interfere with ownership or possession of land.
–          The right to exclude is most strong when there is a privacy interest at stake.
–          Consent is only important when talking about privacy interest.
–          There was no privacy for the doctors office because people were welcome to come in for appointments.