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Property I
SUNY Buffalo Law School
French, Rebecca R.

Chapter One and Two
Ch. 1: Acquisition of Property by Discovery, Capture, and Creation

Property: rights and relationships that exist between persons and the state with respect to valued resources, often, but not only, land and material objects

Possession: physical control over an item (difference between ownership and possession, I can hold something in my possession but not own it). Also, physical control over an item w/ the possibility of excluding others. Also, may have something, possessing it w/out knowing, w/ judge concluding ownership

Ownership: physical ownership of property, title to the object

Theories of property:
Discovery- first in time, first in right, but must be an included party, consummated by possession
àfirst in time: began when scarcity became an issue and possession important
Occupancy- hand in hand with possession, first in time
Labor- (Locke) by spending time and putting labor into something, ownership is achieved. A person has a moral right to ownership over the products of their labor, Locke found that the Indians did not actually own the property in Johnson b/c they had not involved an adequate amount of labor to perfect the property.
Contract- private property is a result of social contract theory
Natural Rights-the recognition that private property is a natural and justified law
Social Unity- law should fulfill maximum happiness and welfare of the public
Economic- property rights create incentives to use resources properly (1) universality (2) exclusivity (3) transferability
Rationales: history, custom/tradition, certainty, business practice, economic efficiency, risk allocation/knowledge, social policy, fairness, logical analysis
7 ways to Acquire Property:
Discovery, Capture, Creation, Find, Adverse Possession, Gift and Purchase

Acquisition by Discovery- the sighting or finding of hitherto unknown or uncharted territory, conquest: the taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror
Johnson v. M’Intosh (1823)-
FACTS- P bought land from an Indian tribe who originally lived in the area.
The tribes were in rightful possession of the lands they sold.
The trial court denied the power of the Indians to convey the lands
They were incapable of transferring absolute title
ISSUE- Do the Indian tribes have the power of conveying absolute title of their lands to others?
HOLDING- No. Indian occupied lands vest title in discoverers.
They are not capable of transferring title to others
Title claimed by P cannot be recognized by US courts

àFrom this, the roots of property law, in the foundations of land ownership in the US,
shows that more often than not only does property law relate to real property, but land
ownership also relates to the ownership of other natural resources, wild animals, water
and minerals, peace and quiet, clean air, and open space
àNeither discovery or conquest really is relevant today, there really are no unknown
territories on earth to discover, and territories beyond earth are controlled by treaties. In
regard to conquest, has come to be prohibited as a method of territorial acquisition.
àDiscovery gave “an exclusive right to extinguish the Indian title of occupancy, either
by purchase or by conquest.” In principle how did this work b/c the concept should really
only be applied to terra nullius(a thing or territory belonging to no one) why did it not
belong to them?

Acquisition by Capture- general rule- a person who first captures resources is entitled to the resource, whoever is prior in time wins.
Pierson v. Post (1805)-
FACTS- Post (P) found a fox on wild, unpossessed waste land.
He and his dogs began hunting and pursuing the fox.
Pierson (D) killed and carried the fox knowing that P was in pursuit of it.
ISSUE- Does the pursuit of a wild animal guarantee the person right to property and possession of the animal?
HOLDING- No. Property in wild animals is acquired by occupancy only.
Pursuit vests no rights in pursuer.
Mortal wounding or greatly maimed of an animal constitutes occupancy.
P only showed pursuit, not mortal wounding, therefore, no occupancy.
ENTRAPPED or MORTALLY WOUNDED-physical dominion or control

Ghen v. Rich (1881)-
FACTS- Ghen (P) killed a whale and while waiting for it to wash ashore, it was taken by Ellis who sold it to Rich (D) who made a profit on the sale of whale parts. P claimed to be owner of the whale and sued D for the value of the whale.
It is customary that when the crew of a whaling ship killed a whale, the ship’s owner was considered to be the owner of the whale when it washed ashore.
ISSUE- Is a marked whale the property of he who killed it, or he who found it?
HOLDING- Yes. P was able to recover the costs of his labor and whale. By using an identifiable bomb-lance, P did all he could to secure the whale.
Custom can be enforced when embraced by entire industry.
Handout 3:
a) wrangler chases a wild horse across an open plain and a second wrangler intercepts and captures the wild horse-who owns the horse? The 2nd, actual wounding, Pierson v. Post
b) a wrangler chases a wild horse through a narrow opening into a small box canyon, a second wrangler intercepts and captures the horse. Who owns the horse? 1st, b/c he took reasonable measure to trap, P v. P
c) Sam shoots a deer, it runs three miles and Sam follows and finds the dear already gutted out and in the hands of Samantha, who owns the deer? Sam , he mortally wounded the deer, Ghen v. Rich
d) A fisherman has almost surrounded a million mackerel with a large seine of 140 fathoms but there remains an opening in the net of only 6 fathoms. Into the gap shoots another fisherman who completely surrounds and captures the mackerel, who owns the mackerel? The 2nd one, fast fish, loose fish
e) A fisherman has completely surrounded a million mackerel and the seine breaks, is torn inadvertently and as the mackerel escape through the hole, a second fisherman captures them, who owns the mackerel? The 1st one, reasonable measure
f) A woman finds an African lion roaming the countryside in Iowa and captures it. The keeper from the zoo comes to claim it, can the woman keep the lion? No, the lion is out of its natural habitat, greater value
g) A woman finds a sheep roaming the countryside in Iowa and captures it. The owner of the sheep approaches her to take it, can the woman keep the sheep? No, it is a domestic animal, so there is an obvious owner

Keeble v. Hickeringill (1707)-
FACTS- P owned land with a duck pond containing decoys to seduce game to pond
D discharged shotgun near pond so that game would stay away.
P sued and trial court awarded damages.
ISSUE- May recovery be had for the frightening of wild game off one’s property?
HOLDING- Yes. Damages may be recovered. D interfered with the lawful use of P’s land and maliciously interfered with P’s trade. If the D had set up a similar decoy pond whereby injuring the P’s, no action would lie b/c he has every right that the P does in constructed such a use of land.

Utilitarian Theory of Property-
– Laws of property are conventions which we obey because it is our common interest to do so
– Property is an expectation of deriving certain advantages from a “possession”
– Dominant view of property today

Acquisition by Creation- Primary purpose is of recognizing property is to reward labor, but complication arise when labor and goods are not one party’s alone but are mixed with others
-proprietary right to exploitation of ones property
-anything can be copied but copyrights and patents are legal protections
-patents-are granted for novel, useful and nonobvious processes or products
-copyrights-protect the expression of ideas (not the ideas themselves)in books and articles, music, artistic works and so on
-trademarks-words and symbols indicating the source of a product or service; owner or marks are protected against use of similar marks by others when such would result in confusion

International News Service v. Associated Press (1918)-
FACTS- The parties are competitors in the business of news, Δ was bribing
employees of newspapers published by P (AP) to furnish P news to INS
before publication, induced P members to violate by-laws and permit Δ to
obtain news before publication, copied news from bulletin boards and
from early editions of P newspapers and selling this
ISSUE- Only issue brought to the court was whether INS may lawfully be
restrained from appropriating news taken from bulletins issued by AP or
any of its members, for the purpose of selling it to INS clients and gaining from the work of AP
HOLDING- Judgment of the Circuit Court of Appeals would be affirmed. Injunctions
were placed on Δ.

G- No. P acquired no original right to the wallet by finding it. Owner of shop has a duty to use reasonable care for safe keeping until owner called for wallet.

Bailment occurs when there is a delivery of personal property by an owner (bailor) into the possession of a bailee for a particular purpose with an express or implied understanding that when the purpose is completed, the property will be returned in full to owner.
Bailee has duties (1)ordinary care standard (2)redeliver goods to bailor
Handout 4: Example: you drive your car to downtown Buffalo and leave it in a parking lot. An attendant comes up to your window and requests 10 dollars. You pay the ten dollars and get a ticket. When you come back from the game, you get into your car and drive away. You are the BAILOR, the owner of the lot with the attendant as an agent is the BAILEE and the ticket is your evidence of bailment.


Van Valkenburgh v. Lutz, (1952) pg. 129
FACTS: Δ occupied Π land by building a one bedroom shack on it, by cultivating a garden on it, and by storing rubbish on it. In another action to establish a right of way across the land, the Δ admitted that the land belonged to the Π.Δ had prevailed on that issue. Now the Π is suing here to gain possession of the lands.
Issue: 1) Must possession be actual in order to acquire title by adverse possession?
2) Where a person claims title not founded upon a written instrument, must a
person either protect land by a substantial enclosure or cultivate or improve the
land to be deemed to be in possession?
3) Must land be possessed under claim of title to acquire it by adverse possession?
Holding: Yes, Yes, Yes
BLR: in order to acquire title by adverse possession, possession must be actual, it must be under claim of title, and the land must either be enclosed or sufficiently improved.

Acquisition by Adverse Possession- a method of transferring interests in land without the consent of prior owner, and even in spite of dissent of such owner.
Must have: Statute: legislature outlining how someone owns lands. Time for AP will have possess/occupy, cultivate, improve, enclose the land
Actual Possession: manner of community use, entrance, start of the statute, no ownership/title, you just possess
Continuous/ Uninterrupted: depends on the context (summer house equals continuous summer use) must be full period of the statutes, allow for tacking (chunking of time by AP’ers, must be continuous, so A AP’s for two years, then interrupted by owner who repossesses, then another AP takes a year later for remaining part of statute, time not tacked on for the second AP’er b/c interrupted by original owner)
Open and notorious: must be occupying the estate in open, notorious and visible manner (visibly hostile: a person looking at it could tell that person was taking that properly) Owner is presumed to have notice that his land is being AP if the possession is visible
Notice: reasonable notice to owner that another is occupying and claiming dominion
Hostile & Exclusive: AP’er must claim the land and w/out the owners consent, not subordinate of the owner
Exclusive: that the AP is not sharing the land with the public at
large, real intent to do a knowingly wrongful act. Use of property
in a manner that average true owner would use it for.
Claim of Right: claim to hold the land, has to do with intent.
Color of title: deeds were bogus but if they sat on the land for the amount of time, land was theirs (howard v. kunto)