PROPERTY
CARBONE
FALL 2012
1. Possession
a. Acquisition by Capture
i. Occupancy/Actual Possession
1. The usual method of acquiring a property right in a wild animal is to actually possess it—dead or alive.
2. Pierson V. Post (1805): Post pursued a fox onto unowned land where Pierson killed the fox and carried it off to prevent Post from capturing it.
a. Issue: Is pursuit sufficient to establish ownership?
b. Rule: No, only occupancy (actual possession) will create a property right in a wild animal.
c. Policy: Actual possession is a clear way to determine possession and promotes killing of Foxes (they were viewed as vermin at the time).
d. Dissent: (1) Err to adopt custom of sportsman (looking to Hounds v. Beagles); (2) possession where capture is reasonably likely will better exterminate foxes.
3. What acts amount to occupancy?
a. Depriving the animal of his natural liberty.
ii. Custom
1. Customary rules generally used to prevent individuals snatching benefits for themselves that would impose a net loss to the group as a whole.
2. Individuals should conform to custom out of self-interest: long-run they will be better off and short run deviation will result in losses.
a. Ghen v. Rich (1881): Mass. Bay whaling community lodged bomb lance w/ whaler identification into whales b/c they were too big to immediately possess. They would be claimed when washed to shore. 3rd party defied custom when he didn’t notify community of whale but sold whale to Rich who procured its blubber and oil.
i. Issue: Does a capture inconsistent with industry custom create possession?
ii. Rule: Only conformity to industry customs will create possession.
iii. Pierson distinction: Sport v. industry; Whaler’s ID lances still clear indicator.
iv. Policy: Customs accepted as law because industries are important to a community’s economy. Non-conformity/enforcement of Pierson first-possession rule would discourage entering the industry.
iii. Importance of Policy to the Nature of Property Rights
1. Law should serve the human values important to a society.
2. This is why the nature of law changes as societies values change (i.e. blacks as propertyà3/5 humanàSeparate but EqualàCivil Rights)
3. Property Doctrine should (1) have awards for productivity; (2) be simple to enforce; (3) create property consistent with habit/custom; and (4) reflect societal/cultural expectation of what’s fair.
4. Keeble v. Hickeringill (1707): Keeble set up an intense decoy pond on his land to catch ducks. Hickeringill, aware of the enterprise, created substantial disturbance (shotgun) to drive away ducks from capture.
a. Issue: Is interference to private enterprise a cause of action?
b. Rule: Malicious interference to enterprise is tort cause of action where damages can be recovered. (Wrongful/intentional interference of business advantage.
c. Policy: Fair competition improves societies, while interference is a dead weight drag on societal improvement. Ducks getting to market is good.
d. Two Interpretations to Keeble:
i. Business tort (herein)
ii. Rationale soli (“by reason of the soil”) Landowners has possession (constructive) of Land’s wildlife; landowners are prior possessors of any animals ferae naturae on their land, until the animals take off.
e. Elements of Keeble’s action:
i. Use of art/skill to establish trade;
ii. Deprivation of profit; and
iii. Maliciously
f. Commonly used as precedent.
5. Relative Title:
a. A landowner would have a better claim to game taken from his land, not because he was a prior possessor, but because he has a right to exclude trespassers from taking game from his estate.
b. This discourages trespassing.
6. Escapees/domestic animals
a. When a wild animal escapes, it is unowned until first capture.
b. Domestic animals who wander belong to prior possessor
c. Domestic animals are those who have propensity to return home.
7. Oil & Gas as Fugitive Minerals
a. Barnard v. Monongahela: unground oil open to all drillers
i. First possession doctrine
b. Union Gas v. Fyffe: open to all would cause overexploitation.
i. Tragedy of the commons: B/c full costs of exploitation not borne to each user.
b. Acquisition by Creation (intellectual property):
i. Question of possession and use of intangible property rights.
ii. Balancing protection of creative/business endeavors v. Protection of industry
iii. Exclusivity: Some people argue free/open use of information is good.
iv. Misappropriation: Branch of unfair competition law that protects the incentives to come up with good ideas.
v. INS v. Associated Press: INS copied stories of AP from bulletin boards and sold them as their own.
1. Issue(s): (1) Is there possession of news; and (2) Does taking news from bulletin boards for commercial use constitute unfair competition in trade?
2. Rule: News is quasi-property for the purpose of newsgathering.
3. Policy: Looked to Keeble to promote fair competition. AP used skill, labor and money to produce something of value, thus acquiring an exclusive right to profit from that investment.
a. Quasi-Property: Have right to it’s profits, but not true & full property right.
4. Case is limited to its facts: Not explicitly said, but language indicates so.
vi. Cheney Brothers v. Doris Silk Corp: Cheney produces unique silk designs every season, some becoming popular. Cannot get patents. Doris copies popular designs.
1. Issue: Is imitation of design unfair competition akin to INS?
2. Rule: No; “A man’s property is limited to the chattels which embody his invention. Others may imitate these at their pleasure.”
3. Policy:
a. Exclusion from enjoyment/profit is one thing; preventing imitation sets up a monopoly for one that gives too much power to creator.
b. Copyright is congressional area. Common law protection for design creates common law copyright w/o a register where all one would have to do is sue.
c. INS not apply because silk industry is not valuable; news is important.
d. Did not create a common law exception b/c of the uncertainty of time silk should be protected (for years, just for fashion season?)
vii. Smith v. Chanel: Imitation of Chanel No. 5
1. Issue: Is there a protectable property interest in perfumes?
2. Rule: No, there isn’t
3. Policy: Imitation promotes competition. Promotion of comparable goods at lower prices makes competitors provide better/unique products.
c. Property of One’s Person
i. Good example of culture changes revolutionizing the law to protect new interests.
ii. Why might we want to give property rights to stuff people create?
1. It encourages creation when a person knows that they will benefit from the creation (utilitarian argument)
2. Fairness to the creator (moral reason)
3. The person who puts in the work should get something for it (Lockean notion that property should follow labor)
iii. Why might we not want to give property rights to stuff people creat?
1. It can stifle creation, because if you cannot take anything at all from another’s work, it is hard to come up with something new (utilitarian argument)
2. It makes important stuff unavailable for others to use (utilitarian argument)
3. Intellectual property usually does not come from the labor of one person
4. Property rights cause conflicts in society by creating inequality (Rousseau)
iv. White v. Samsung: Vanna claims Samsung used robot with her “likeness” in an ad for VCR. White sued under Cali. Common law right of publicity.
1. Issue: Does appropriating person’s identity w/o consent invade right of publicity?
2. Rule: Yes; cannot use “likeness” for commercial purposes.
3. Policy: White worke
AP will cover mineral rights that haven’t be sold from land. If sold, that can only be AP’d by extraction.
4. Jurisdictional Split
a. Manillo V. Gorski-If encroachment is of a small area and is not “clearly and self-evidently” an encroachment, it is not open and notorious; owner needs actual knowledge. In this situation, limitations statute will only begin to run when owner has actual knowledge. Also, not open and notorious if you need it surveyed.
5. Van Valkenburg v. Lutz: Garden shed and junk was not typical manner of use.
iii. Exclusive: AP excludes owner.
1. Not sharing with another or public
2. Exercises substntial dominion; can only come on if invited etc.
iv. Possession must be hostile or adverse
1. Has to be against the true owner’s interest and rights (a.k.a. “hostility)
2. 3 ways to determine Hostile/Adverse (Jx Split):
a. Objective standard (Connecticut Doctrine): Majority view that use is w/o permission and inconsistent with owner’s legal rights.
i. Entry and possession is enough, not intent needed; nothing to read into.
b. Subjective Standard (Good Faith): Few instances where a boundary dispute judged by good faith belief AP was on his own property. Just a mistake!
i. Most courts don’t find the “I didn’t know it was his” argument persuasive.
c. Bad Faith/Hostile (Maine Doctrine): you knew you didn’t own the land but didn’t give a fuckkkk.
i. Rewards assholes who are intentional wrongdoers.
ii. If used to reward the AP, most courts will make him repay FMV.
iii. Most court don’t favor this.
3. Claim of title: one way of expressing the requirement of hostility or claim of right on the part of the AP
a. Most courts hold this merely means the AP is claiming a right for himself, w/o the owners permission.
v. Continuous use for the statutory period
1. Appropriate to the subject land—can be seasonal (summer home)
a. Howard v. Kunto: Seasonal vacation home satisfies continuous use b/c vacation homes, in ordinary usage, are not occupied 100% of the time.
2. Unchanged type of usage is important
3. Continuous element focuses AP’s time on the property, rather than how long the owner has been dispossessed.
4. Possession of one person can be tacked to that of another if there is privity between them
a. To establish privity in adverse possession cases, it must be established that the adverse possessor’s predecessors had intended to always convey title to the adversely possessed land.
5. SoL renews when 2nd AP enters property abandoned by 1St AP.
c. Why the heck does Adverse Possession even exist?!
i. Quiets title (establishes ownership) and settles disputes
1. Stability theory: Enables land disputes to be cleared expeditiously by delivering title to person who occupied land as if she were the owner for a long time w/o objection.
ii. Promotes beneficial use of the land
1. Earnings theory: rewards person making beneficial use of land
iii. Penalizes person sleeping on their rights
