Property Outline
Property Characteristics
– Possession
o Doesn’t mean that you have ownership, such as borrowing a car or library book
o It may be a presumption or evidence of ownership
– Legal rights
o Right to use – without a right, you are a trespasser
o Right to exclude – certain circumstances when you can’t exclude such as emergencies or when the government is involved
o Right to sell – although licenses or some interests cannot be sold
o Right to transfer at death – a life estate: after the wife dies, the children/remaindermen have a property interest but no right to possess the land
ACQUISITION BY DISCOVERY
– John Locke
o Said, “Thus in the beginning all the world was America”
§ There was no legal right to property
o Composited the social contract, a theory that state that the government has the right to come together to impose agreements that changes society from being in a state of anarchy and chaos
o Locke’s Labor Theory – believed you acquired land through labor
– Johnson v. M’Intosh
o Plaintiff had acquired land by Piankeshaw Indians and defendant acquired same piece of land by the United States later. An action for ejectment.
o Holding: The defendant had superior rights to the plaintiff because the U.S. Government had superior title over the land to the Indians.
o The fact that the Indians occupied the land raised a presumption but it didn’t mean they actually owned it. In this case the government were the first to possess land that was not owned.
o The court distinguishes between occupation and possession:
§ Mere occupancy does not give rise to ownership or any legal right.
§ Possession requires improving the land, building roads or homes, and the Indians did not do this; therefore, they did not have possession.
o One acquires property through the investment of labor. The Indians hunted and fished but this was rejected as labor because they moved once they had exhausted the land.
o The government has the right to take it by discovery and conquest and forcibly remove them.
Law of Accession
– Law of accession: When you add a benefit to someone’s property, that benefit is conferred on the owner.
o The policy that is enforced is the right to exclude others from interfering with property.
– Hypo: You paint a big mural on a wall at Touro. Who owns the wall?
o Law of accession and Locke’s Labor Theory conflict here.
o The cases are inconsistent and very fact-dependent.
o To protect pre-existing property rights, then the rule is going to be whoever owns the raw material will own the later work.
– Rule: Where the raw material is of less value and the addition is of great value, the courts have taken into account the policy of promoting the right to exclude, but they also take into account Locke’s Labor Theory. They have generally awarded the person that invested labor, but they have required you to pay damages to the original owner.
ACQUISITION BY CAPTURE
– Pierson v. Post
o Post was chasing a fox with his dogs and hounds. Pierson interferes and kills the fox and claims the carcass that Post was pursuing. This took place in an unowned wasteland in Queens. Post sues for trespass.
o Majority: Mere pursuit gave Post no legal right to the fox. There must be an actual mortal wounding. Pierson got the fox because he mortally wounded it and because he was first in time.
§ This policy being promoted by majority (and dissent) is to promote the foxes being eliminated (because they ate the chickens being used for food.)
§ This preserves peace and order in society. Certainty because there won’t be multiple claims about who owns “beasts ferae naturae.”
o Dissent: Post should have had the fox. Same policy reasons, but they have a different rule – whomever has the “hot pursuit” to kill the animal owns it.
§ Hot pursuit promotes the incentive to capture the foxes.
§ Supports Locke’s Labor Theory more.
§ Says that this decision should have been turned over to sportsmen.
– Ghen v. Rich
o The plaintiff was near Cape Cod and he shot and killed a whale. It sunk and three days later, it was found by Ellis. Ellis advertised the whale for sale at auction, and sold it to the defendant, who shipped off the blubber and oil.
o Plaintiff wins. Decided based upon hot pursuit. However, in both cases, the person that mortally wounded the animal (whale/fox) prevailed in having the animal.
§ The court adheres to the customs of whaling. It is customary that when whales are shot, after they sink and float to the surface, the person that finds the whale sends word to Provincetown and the owner comes to claim it.
§ The policy is to promote the killing of whales in order to have the blubber to light up homes, etc.
o This is consistent with the dissent in Pierson v. Post because without going out and pursuing an animal, then it would not happen because of the lack of incentive.
§ If Ghen was decided on the majority of Pierson, it would be decided based upon mortal wounding and perhaps reasonable time of claiming it.
– Keeble v. Hickeringill
o Plaintiff has a pond that attracts wildfowl. Plaintiff was selling ducks for food. Defendant f
F’s land in the evening. H, a hunter, shoots one of F’s deer one day during the hunting season. F sues H for return of the carcass. Who prevails?
o Assuming the animal is wild – once the deer leaves F’s property, then F loses qualified ownership. And then H gets ownership once killed.
o Assuming the animal is domesticated – F actually owns the animal. Domestication results in ownership because you paid for the animal and you put work into the animal. (This is similar to Locke’s Labor Theory.)
§ F will argue that the deer is domesticated.
§ H will argue that the deer appeared to be wild, he took custody of the carcass, and that you do not want to deter hunting (economy, overpopulation of deer).
– Hypo: P imports gray foxes from Canada and keeps them securely confined in a pen with plank walls. They gnaw their way out and sometime later they are killed by D in a pine thicket 15 miles from P’s ranch. Who prevails?
o Arguments for P: domesticated animal because of importing, caring, setting up the plank walls so the foxes would not escape, imported so he had to pay for them
o Arguments for D: wild, not on P’s land, not a trespasser, if he is a hunter – he should know it is not indigenous to the area, did not interfere with trade because it was not malicious and he killed it for his own benefit
– Domesticated animals:
o Inclination to return
o Outside indigenous habitat
§ Importation for trade
o Have a marking (a sign that they are domesticated, such as cows)
o Taught it tricks, responds to commands
o Demeanor, appearance, recognizable
– Hypo: F is bothered by wild migrating geese on her land and shoots them in violation of the fish and game laws. The government confiscates the carcasses.
o The government is allowed to do this because of their power to regulate. This does not mean ownership however.
o Overconsumption leads the government to regulate.
ACQUISITION BY CREATION
– Intellectual property: the value is the ability to make copies, derivative works, to use the intellectual achievement in tangible form
