Property I
Seplowitz
Spring 2012
I. First Possession: Acquisition of Property by Discovery, Capture and Creation
Rule – First in time, first in right, refers to being the first to possess something that is unclaimed. This can be done by discovery when finding land that is unowned or it can be done by conquest which is a hostile takeover of land. This furthers the land property theory of incentive to find, to make yours and to invest in your property, thus increasing its value.
Johnson v. M’Intosh – Discovery gives an exclusive right to extinguish an Indian right of occupancy by purchase or by conquest. – The Indians were not owners but merely occupiers by a right
· John Locke’s labor theory – when a man mixes his labor with a parcel of land, by cultivating it for example, he owns that piece of land. – This theory forwards one of the goals of property law encouraging efficient and productive use of land.
o Increase of value in property, incentive to cultivate and preserve
· Discovery – the sighting or finding of unknown or uncharted territory and is frequently associated by a landing and the symbolic taking of possession
· Conquest – is the taking of possession of enemy territory through force followed by a formal annexation of the defeated territory.
· Law of accession – when one person adds to the property of another by labor alone
By Capture
Rule – To acquire ownership by capture, an individual must occupy the wild animal. The animal must be wild in the sense that it has no incentive to return to where it is from and is unowned at the time. The animal is occupied in the sense that the individual either kills, traps, mortally wounds, domesticates, contains, or invests in the wild animal. Further advancing making efficient use of property and fostering competition. Furthermore the mere pursuit or hunt of a wild animal is insufficient to lay title to the hunter.
· Counter argument – custom that the first to find and pursue the animal should be first to own the animal because first in time and first in right. Following a rule that a pursuer acquires title to a wild animal when they are in reach of the animal or has a reasonable prospect of capturing the animal. Following the other theory would not encourage finding contrary to prevailing property theory.
o But if this is followed it is hard to determine who was the first to pursue
Pierson v. Post – A hunter must either trap or mortally wound a wild animal in order to acquire title to it – There are two justifications advanced for the rule that capture is required to vest title. The rule advances society’s goal of capturing wild animals (desire to make efficient use of property) and society rewards the captor only because this rule fosters competition.
· Constructive possession – dominion and control over an object, though not in physical possession – could provide others (hunter) that the animal is already claimed and they have no right to lay claim to the animal dead or alive.
· Ferae naturae – wild animals
Ghen v. Rich – Title to a wild animal is acquired when a hunter apprehends the beast in accordance with custom – A harpoon individually marked to each whaler was custom, and was a custom which embraced the entire industry.
· Looked at economic values – would not create incentive to whale if anyone could just come along and take the whale after they float or beach themselves. – Applying custom the industry would die since no person would engage in the industry if his labor could be appropriated by a chance finder
· An individualized harpoon provides constructive notice of someone mortally wounding the animal and that the whale is already claimed.
Keeble v. Hickergill – A person may not maliciously prevent another person from capturing wild animals in the pursuit of his trade. First, every man should be able to use and enjoy the use of his land as he sees fit so long as the use is lawful. The capture of animals in pursuit of a trade is profitable, it creates wealth.
· Ratione soli – asserts that the owner of land has constructive possession of the animals on their property and discourages trespassing – landowners are regarded as the prior possessor of any animals wild on their land, until the animal takes off.
· Exotic animals – provides constructive notice that the animal may belong to someone else because the animal is not native to the area – does this depend on how long the individual is there for? Or their trade/purpose in hunting or trying to capture the animal.
· Oil and gas – oil and gas naturally collect in reservoirs that underlie acres of land and ban be under several tracts of land. A court will approach this in the same manner as they will approach a wild animal being captured – AND when a land o
the public’s mind.
White v. Samsung – Identity is a part of a person, like a voice, appearance. So long as people can infer from what is conveyed that it is the individual it does not need to be exactly identical.
· A majority of states now have a common law of statutory right of publicity. In many jurisdictions the right persists after death and is descendible
· Parody – A transformative use of a well-known work for purposes of satirizing, ridiculing, critiquing or commenting on the original work, as opposed to merely alluding to the original work to draw attention to the later work. In con law, parody is protected as free speech. In copyright law, a work must meet the definition of a parody and be a fair use of the copyrighted material or else it may constitute infringement.
Property in One’s Person
Rule – An individual has an ownership right over their body parts when they are in their body in the sense that they determine who has rights to use or remove a body part. Once the body part leaves the body it is no longer the owner’s because to do so would slow down scientific progress and expose innocent researchers to liability. (Any derivative of the body part such as a medicinal breakthrough is also not the body part’s original owner because the removing party invested and created something novel. )
Moore v. Regents of the University of Cali – A doctor has a duty to disclose the extent of his research and economic interests in a patient’s body parts. Human body parts are not property such that they may be converted.
This was a conversion action to which the plaintiff did not show any interference with his ownership or right to possession. The plaintiff did not retain possession of his body parts after their removal. There are three reasons why he did not show an interest:
1. There is no case law to support for the contention that a person retains an ownership interest in excised body parts
