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Property I
SUNY Buffalo Law School
Su, Rick

Property – Rick Su – 2011

3Property Outline

1. Conceptualizing Property

· Themes of Property3

§ Property is a right

o Focuses on the individual

o Justice in social relationships-ones use of rights must not impair his neighbors use

o Security- Everyone has a right to have protection from their neighbor unreasonably interfering with his enjoyment of property

§ Utility

o Social Efficiency-How you allocate property affects how system works

o Promoting competition-Society has a significant interest in not restricting land development

o Development should generally be encouraged. People need to have a reason to believe they are protected

§ Social Relation(?)

o Rights can differentiate based on relation you are trying to find

o Every legal entitlement is limited by the competing rights of others

§ Administrability

o Judicial and Customary law

o Rule (Black letter 55 mph, problem – inflex) v.s. Standard (Broad Criteria)

· Possession

§ Pierson v. Post

o Facts: P was hunting a fox with dogs. P was hunting all day. D knew this and killed the fox on an uninhabited beach. P sued D for trespass on killing the fox.

o Precedent:

v Justinian Institute–>Actual possession of wild animal is occupancy

v Puffendorf-It must be morally wounded for it to be yours

v Barbyrac-These rules manifest an intentionality either. Either I took it or mortally wounded it. Comes down to restricting the liberty or control of the animal.

v Duck Pond Case-Guy trapped ducks on his decoy duck pond. Malicious intent or interference

o Rule:

v Mere pursuit is not possession

o Reasoning

v Allowing someone to male a claim after they see an animal but fail to finish off the hunt would give rise to too much litigation

o Dissent

v If the social policy is to kill the fox, no one will knowing that someone could just come in at any moment and take their kill

v Going forward this could harm hunting

§ Popov v. Hayashi

o Facts: Popov had the barry bonds homerun ball loose in his glove. He was attacked by a crowd of people and the ball fell out. Hayashi took it. Popov sues for conversion

o Precedent

v Grays Rule

Ø Possession doesn’t occue until there is 1) physical control and 2)intent to control

Ø This is similar to Barbrac’s rule is Pierson v. Post

o Reasoning:

v Distinguished from Pierson’s rule because of the nature of animals or a baseball. You cannot wrap your arms around a fox the same way you can a baseball

v You own the right to try and own the ball. This is not a property right. You can only exercise this “pre-possessory” right against people who assault you. Do we want a big guy to beat up everyone a a baseball game and get a foul ball?

v Because Hayashi didn’t unlawfully interfere, they split the cost of the ball

o Rule

v When an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned persona property, you have the right to complete your “pre-possessory attempt” to control something only against violent or unlawful interference

v Where more than one party has a valid claim to a single piece of property, the court will recgonize an undivided interest in the property in proportion to the strength of claim.

· Conquest

§ Johnson v. M’Intosh

o Facts: Johnson inherited land his relatives bought from Piankeshaw Indians. M’intosh bought the same land from congress after the revolutionary war. Johnson’s heirs sued M’Intosh to recover the land. Distrcit Court ruled for M’Intosh because his title was valid since it was granted by congress.

o Argument:

v Johnson-Ban doesn’t apply to indians or Johnson grandfather because it was private property. Absolute Land=Absolute title. Natural rights argument shows property rights are beyond the king

v M’Intosh- Indians had no authorization because of colonization. No concept of private property so they never sold anything.

o Marshall’s Opinion

v Title of Discovery

Ø What: Right to acquire title by 1 purchase or 2) conquest

Ø Who: Relational–> can assert ttitle against other sovereigns

Ø Gives you something similar to a pre=possessory right

v Title of Conquest

Ø What: Structure property relations, Does not give right to own land unless conqueror want it to. General rule is that the conquered shall not be wantonly oppressed. Because the conqueror never allowed the Indians to retain possession of their land, they never had the option to tranfer it to anyone.

Ø Who: The conqueror

v Right of Possession

Ø What: The right to occupy

Ø Who: Only has right to sell to discoverer or conqueror. They can do whatever they want with it

· Oil and Gas

§ Elliff v. Texan Drilling Co.

o Facts: Plaintiff owned land that had oil and gas below it. This land overlapped with a neighbors land. Defendant was drilling on neighbors land and negligently destroyed a well causing plaintiff’s well to blow up. The oil and gas that escaped came out through the hole defendant was drilling.

o Arguments:

v Plaintiff: Negligence-Want money for oil they could have captured

v Defendant-Law of Capture (owner of a tract of land acquired title to the oil or gas which he produc

· Real Property

§ Tapscott v. Lessee of Cobbs

o Facts: Anderson does. Executives are Harris, Rives, and Anderson. At public auction, land is sold to Rives. However, at same time, land was supposedly sold to Lewis. Lewis swapped the land with Rives. Lewis lived on land for 10 years and then died but did not have title. Tapscott comes and takes land. Court says she did not own land. Cobbs ( Heir of Lewis) is suing tapscott.

o Argument

v Tapscott-Claims he doesn’t have title but neither does Cobv. Lewis never had title so she never forwarded it to Cobbs. Constructive possession is not enough to claim that someone is a trespasser.

o Precedent

v Sowden v. Mcmillian

Ø Title determined all. The law protects a peaceful possession against all except him who has the actual right to possession. They have a right against the public, but not the one who has title

o Reasoning

v Court doesn’t want land to be unoccupied

v Court is using rule for person to win against public

v Cobbs wins because her ancestor was a peaceful possessor

· Property and unfair business practices

§ I.N.S. v. A.P.

o Facts: INS is taking AP’s news of bulletin boards and is selling it to it’s members. Court focused on the 3rd claim which was “copying news from plaintiff’s bulletin board”

o Majority Argument:

v News is not intellectual property but it is quasi-property

Ø Labor and effort put into finding news

Ø Relational regarding competiton but not against public, in other words, you can only assert this right against a rival company but not a random person telling his friend

Ø Concerned about free riding. News is fresh and it only has its value when it is released.

v Policy: News is good. We need to reward person for collecting work. We need to protect news

o Holmes Dissent

v There should not be a property right for this because unfair business practices have never been equated to a property right.

v Only error he sees here is that a consumer may think INS wrote it instead of AP. Therefore, there should be attribution

v This should be legislature’s role