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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

tutes 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