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Property I
SUNY Buffalo Law School
French, Rebecca R.


Conceptualizing Property

I. Most Basic Types of Arguments

a. Rights Arguments — most basic of the most basic

i. Is something fair?

ii. Looks at relationships

b. Utility Arguments

i. Idea is to maximize the “good”

1. Can sometimes lead to policies that may seem unfair to an individual but is maybe better for society as a whole.

2. Looks at what policies will promote that maximization.

c. Administrability Arguments

i. Judicial Role — is this something that should be decided by law? Is this something that this court should decide? If yes, how should they be involved?

ii. Rules versus Standards

1. If the judge is going to announce a “rule” should it be more like a rule or a standard?

a. Rule is clear bright line (18 to vote) that’s the plus, the minus is sometimes it can be too rigid. Who is to say that driving 62mph is too dangerous but 59mph is safe? Can be over-inclusive or under-inclusive.

b. Standard is very broad (reasonable person standard). Requires a strong judicial role and judge has much more discretion. Bad thing is that it is vague and can be unclear. Good thing is it can yield a much more tailored approach that is much more inclusive.

II. Pierson v. Post — POSSESSION

a. Holding: If a person is pursuing a wild animal but has not captured or wounded it, then he does not have possession of it and someone else is free to take possession of it, even if he sees that the first is in pursuit.

i. Policy argument is that to avoid quarrels and excess litigation and to preserve peace and order in society there needs to be a strict rule on this issue.

b. Dissent: His policy argument is foxes are horrible beasts and they need to be exterminated so a rule is needed to support their extermination. Clear utilitarian argument.

c. Another policy argument could be that people should stay away when others are in the middle of hunting in order to avoid danger…being accidentally shot by the hunter.

d. Or there’s the market argument…whoever is the better hunter should get the fox. Pierson didn’t even have hounds, as far as we know, so he’s the better hunter. How long are we going to let Post go after the fox…hours…days?

e. There’s a fairness component. It could be seen as unjust enrichment for Pierson to exploit Posts labor. But it could also be seen as unjust enrichment for Post to come into court with his lawsuit to try to get the fox that he was unable to catch, but Pierson did catch.

III. Popov v. Hayashi (Baseball Case) — POSSESSION

a. Holding: Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned property and the effort is interrupted by the unlawful acts of others, and a 3rd party picks up the property and takes legal and proper control over it, then both parties have valid claims to the property making it an undivided interest and the property should be sold with the proceeds split between the two parties.

i. When an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned property and the effort is interrupted by the unlawful acts of others, he has a legally cognizable pre-possessory interest (right) in the property, which constitutes a qualified right to possession which can support a COA for conversion.

ii. But Hayashi was not a wrongdoer, not part of the mob…so when he picked it up and put it in his pocket he attained unequivocal dominion and control.


a. Holding: The act of discovery gives the discovering sovereign the power to extinguish the native title of occupancy, so the land Jefferson and Britain acquired from the Indians was transferred to the U.S., which then had the sole discretion to sell it to D.

b. Court says that the property was split into different titles. There’s a title of discovery, a title of occupancy, a title of conquest, and a title of purchase.

i. Title of Discovery

1. Obtained by the first person to discovery the property. Not quite ownership though. It gives you the right to exclude other nations from the right to acquire the land from the natives who are already on the land. Like a pre-possessory right to acquire it. According to Marshall, the title of discovery is against other imperial powers that haven’t previously discovered that land.

ii. Title of Occupancy

1. Obtained by the people who first occupied it. So they have the right to occupy it (to use it). The title cannot be sold as ownership, it is only gives the possessor the power to use the land.

iii. Title of Conquest

1. One way of dealing w/ title of occupancy…can extinguish title of occupancy through conquest. However, whether or not title of conquest is legitimate depends on what you do with people that occupied land before conquest. Usually there is an aim at integration but if not, there needs to be a segregation where they still get a right to occupancy on some part of that land or an alternate land.

iv. Title of Purchase

1. Gain ownership of land through purchase from previous owners who had ownership through purchase or conquest.

V. Elliff v. Texon Drilling Co. – COMPETING CLAIMS TO PROPERTY

a. Holding: The law of capture does not protect a neighboring landowner from damages caused by the wrongful drainage of gas and distillate from beneath the land of another (in a shared pool).

b. Is TX’s law good, in light of competition?

iii. Utilitarian = people need oil…this encourages the drilling of it

2. But isn’t this allowing the taking of others’ private property?

c. Maybe if they don’t want it it’s okay.

iv. Interesting that the “use it or lose it” concept was used in Texas since it has elements of socialism.

c. Texas rationale is that they allow people to own property b/c it promotes use and

t may be trademarked.

v. Court also says that colors aren’t necessarily so limited, but even if they are…they aren’t trademarking the color for use on all products, just with the products that they use the color on.

vi. But if a color depletion or scarcity problem arises with a certain type of product, the trademark doctrine of functionality would be available to prevent the anti-competitive consequences that D’s argument mentions.

e. Feist Publications, Inc. v. Rural Telephone Service Co. – COPYRIGHT LAW

i. Holding: In order to be copyrightable, a work must be original and possess at least some minimal degree of creativity.

ii. Facts are not copyrightable but compilations of facts generally are.

1. But only if the selection and arrangement are original and involve some creativity in the compilation.

iii. There is nothing remotely creative about arranging names alphabetically in a white pages directory, as in this case.

f. MLK Center for Social Chang v. American Heritage Products–PUBLICITY RIGHTS

i. Right to privacy: usually relational right…usually doesn’t survive after person dies and usually you are considered to give up that right when you become a public figure…you are in the public light so you can counter any negative assertions about you.

ii. Right to publicity: based on fact that some people do want to put themselves out there and make money off of their publicity. The idea is that publicity has value to it. (ex. Nike want’s MJ’s name on their shoes)

1. general rule is you have right to publicity if you endeavor to make money off your publicity

2. unlike privacy, right to publicity can transfer after death…still valuable (Elvis shit)

iii. The court said that if right to publicity dies with the person, then it is weakened while the person is living…by knowing they cannot carry it on. It cheapens it in other words.

iv. Just b/c MLK didn’t exploit his name and likeness during his lifetime doesn’t mean others have the right to do that…nor does it strip his family and estate of the right to control, preserve, and extend his status and memory and to prevent unauthorized exploitation thereof by others.

v. Dissent: Says what about the First Amendment? At some point you’re saying we cannot talk about anyone? Then it might allow celebrities to keep tabloids from talking about them.