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Property I
SUNY Buffalo Law School
Steinfeld, Robert J.

Property – Steinfeld
February 8, 2010
First Possession and Property Rights
CB pp. 3-27; Moby Dick excerpt
Chapter 1: First Possession: Acquisition of Property by Discovery, Capture, and Creation
A. Acquisition by Discovery
Johnson v. M’Intosh
Supreme Court of the United States, 1823
21 U.S. (8 Wheat.) 543
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
*From 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
*Neither 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.
*Discovery 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?
Locke and labour theory
Law of accession: When one adds to the property of another by labor alone, which party is entitled to the final product?
Haslem v. Lockwood Manure carrying-away case – P left piles after gathering them (added labour) – does this mean he forfeited his right? No.
B. Acquisition by Capture
Pierson v. Post
Supreme Court of New York, 1805
3 Cai. R. 175, 2 Am. Dec. 264
What acts are necessary to take possession of a resource and transform it from unowned to owned?
Fox Hunting Case
Facts: Pierson kills a fox being pursued by Post and his hounds
Issue: Did Pierson by the pursuit with his hounds in the manner alleged in his declaration, acquired such a right to, or property in, the fox, as will sustain an action against Pierson?
Holding: Post had no right to the fox
*Property in animals is acquired by occupancy only
–           *Pursuit alone vests no property or right in the huntsman
                        *Accompanied by wounding is equally ineffective unless the animal is  taken
            *Mortal wounding, without abandoning pursuit, can be deemed possession
                        *This includes catching in a net
*Must be brought under physical control – deprive animal of its liberty and render escape impossible
*Post pursued but did not mortally wound or bring fox under his control
            *If the fox had been on ratione soli – owned property – the owner of the property
would have ownership of the fox (constructive possession – fictional possession)
            – Why? Anti-trespass rule
Ghen v. Rich (1881)
–           Ghen shot whale
–           Found by Ellis and sold to Rich, who shipped off the blubber
–           Ghen hears of the whale and goes to claim it
*Neither respondent nor Ellis knew the whale was killed by Ghen
–           By the way the animal was killed, they could tell it was killed by a whale hunter.
–           Under property law, does the shooting of a whale by traditional means equate to possession of the animal's remains as the shooter's property, when the animal itself is left with the anchor from the ship which shot it, but is still sold to a third party?
–           Acquisition in the fishing industry is determined by who kills the fish
–           Hunter who kills and lays appropriate claim to the animal is the rightful owner of the animal with possession
February 10, 2010
The System of Estates (Leaseholds Aside)
CB pp. 173-86
Feudal Tenures; The Fee Simple
Estates – freehold (normal tenures of feudal times) and nonfreehold (mere leases)
Present interest – right to possession now
Future interest – right to possession later
Co-ownership or cotenancy – two or more persons with rights to concurrent possession, now or in the future
Possessory Estates
A. Up from Feudalism
            *English law developed beginning with William the Conqueror’s rein (1066
Normal Conquest)
1. Tenure
            Land tenure – everyone, save the king, subservient to his land lord. All subservient to the crown, from whom all land titles derived
            Subinfeudation – tenants in chief granted parcels of land to subtenants in exchange for the service of one or more knights or for some other service necessary to support the land lord
                        *land was forfeited if the service was not performed
Tenant in chief
Mesne lord (intermediate)

e, but required the great lords to allow tenants the right to substitute new tenants without the lord’s consent
            Historic consequences:
1)      Established principle of free alienation of land (alienation: power to transfer resources to another person)
2)      Existing mesne lordships tended to disappear and most land came to be held directly from the crown (by the time of the Tudors, Henry VIII tried to resinstate feudal incidents to collect revenue via the Statute of Uses and the Court of Wards and Liveries)
*tenants were now the “owners” and services and incidents were a form of taxes or wages – personal relationships began to atrophy in favor of a market economy
*Black Death in 1349 wiped out a large number of villein tenants and survivors became wage-earners, peasants gained independence as outside wages rose
B. The Fee Simple
In the feudal system, each tenant had a status as tenant of the fee or for life – but status became an estate
Estates defined by the length of time it may enture
* Fee simple may endure forever; life estate, for the life of a person, term of years, or other calendar time
1. How the Fee Simple Developed
            a. Rise of Heritability
Originally, after the Norman Conquest, heirs did not get tenure to land (only lasted tenant’s lifetime), but eventually, out of custom, lords recognized obligation to consent in advance to convey land “to A and his heirs”
b. Rise of Alienability
Demand for land led after Quia Emptores settled that the fee was freely alienable
            c. Rise of the Fee Simple Estate
The fee, which started as a holding, became an alienable fee simple, a freehold estate not terminable at the will of the lord, with an existence all its own
*In modern use, an estate is a “bundle of rights” – denoting legal relations between persons with respect to a thing
*Fee simple is as close of absolute ownership as our law recognizes – may endure forever
*For historical reasons, there is a fee simple only in land, not personal property
2. Creation of a Fee Simple
            “and his heirs” indicates fee simple