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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)-

s 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