Property I
Professor Harmon
Property, Dukeminier and Krier, 5th Edition
Acquisition by Discovery, Capture, and Creation
· Acquisition by Discovery:
o Discovery of land in America by a European power gives absolute title subject only to the Indian right of occupancy. Johnson v. M’Intosh
· Acquisition by Capture:
o In order to gain title to a wild animal, a hunter must either trap the animal or mortally wound it. Pierson v. Post
§ Exception: Title to a wild animal is acquired when a hunter apprehends the beast in accordance with custom. Ghen v. Rich
o The law wants to encourage the capture of wild animals.
§ Example: A person may not maliciously prevent another from capturing wild animals in the pursuit of his trade. Keeble v. Hickerongill
o Property rights, such as the right to capture wild animals, are adjusted so as to eliminate externalities. These changes in property rights promote a more efficient allocation of resources. Harold Demetz, Toward a Theory of Property Rights
· Acquisition by Creation:
o The law wants to encourage the efficient use of property by as many people as possible; consequently, not all creations are given legal protection. Unless the common law or the patent or copyright statutes give protection from appropriation, a persons property interest is limited to the chattels which embody his creation. Cheney Brothers v. Doris Silk Corp.
o Competition increases social welfare. Imitation increases competition. Therefore the law should not protect intangible property, but allow others to copy an inventors creation, only if this freedom to imitate does not destroy the incentive to create. Intellectual Property and the Legacy of International News Service v. Associated Press.
§ Example: If a company has a legal right to copy a competitors product, it may inform consumers that its product is equivalent to its’ competitors product. Smith v. Channel
o Excised body parts belong to the doctor removing them. Moore v. Regents of the University of California
o Punitive damages may be awarded for intentional trespass to land. Jacque v. Steenberg
o Property rights may not be exercised so as to endanger the well being of others. State v. Shack.
Acquisition of Property by Find, Adverse Possession, and Gift
· Definitions:
o Real Property: is defined as land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to land.
o Fixtures: personal property that has been attached to real property and that is regarded as an irremovable part of real property.
o Person Property (Chattel): Any movable or intangible thing that is subject to ownership and not classified as real property.
Gifts
· Gifts: the voluntary transfer of property without any consideration.
o Requirements for Gift of A Chattel:
§ The donor must intend to make the gift.
§ The donor must deliver the chattel to the donee (there are substitutes for manual delivery)
§ The donee must accept the chattel
o 2 Types of G
ossession of property in one’s power, the exercise of dominion over the property. The right under which one may exercise control over subject to the exclusion of all others. The continuing exercise of a claim to the exclusive use of material object.
o Ownership: is the collection of rights allowed one to use and enjoy, including the right to convey it to another. It implied the right to possess a thing, regardless of any actual or constructive control. The rights are general permanent and inheritable.
o Custody: is the care and control of a thing or person for inspection, preservation or security.
o Title: the union of all three of the above elements constituting the legal right to control and dispose of property. It is the legal link between a person who owns property and the property itself. It is legal evidence of a person’s ownership rights in property.
o Lost Property: is property, which the owner involuntarily has parted through neglect, carelessness or inadvertence.
o Mislaid Property: is property, which the owner intentionally placed where he can again restore it, but then forgot where he placed it.
Mislaid – may be a higher duty for the finder to return property to true owner.
