Property–Cheslik
Class Notes FS 2004
8-25-04
Property
Tangible/intangible
Tangible-house (real property)-value-deed
Intangible-Song rights, tenant/landlord
Firstàreturn to original owner
Encouragement of ownership
If you know someone will get it back because they had it first it is less likely the order will dispute
Property ownership by individuals is more efficient then government (example: home ownership)
Property is a relationship between people and things
government can play role in encouraging property ownership
Johnson v. M’Intosh
Federal case
Supreme court has original jurisdiction
Johnson governor of Maryland and was justice on supreme court
Action for injectment (improper taking of property)
J’s claim to land is that he bought if from tribe of Indians in 1773 and 1775
M’s claim-grant from government (which came after 1773)àwas first in time
Going to British government would have possibly given clearer title (they were in charge at time of sale)
J loses because of the rule of Discovery
i. If there’s native people’s, the rule of conqueror applies
Justice marshal didn’t have to go along because it was European rule
discovery rule-Europeans conquering, doesn’t apply to Indians
Marshall realized that the rule didn’t apply to Indians
Indians considered savages
In Europe they had cities which included buildings and roads, so to them the land hadn’t been settled
Indians prior possession they lived on the land
Why did Marshall do what he did?
i. He realized it wasn’t right and applied only to the Europeans who agreed on it
ii. Used rule from Virgin saying only government an negotiate with Indians and buy land
Discovery ruleàconquer/conquest by European nations
John Locke labor theoryàif you take something from nature, not previously owned, and use your labor, you make it your own
Manure case-someone left it in the street, P came along and separated it into piles, D came along and took the manure
P-racked
D-picked it up and carried it off
Similar to Pierson v. Post
Labor theoryàhave to prove you did enough labor to make it his, then 1st in time 1st in right applies
No on would labor if someone came along behind them and took it
Johnson v. M’Intosh- Indians didn’t put labor into the land, so they didn’t own it
Pierson v. Post
Possible to have a court lower then circuit court called municipal court and circuit court can hear appeals
Post-P
i. Pursuing and in view of fox
1. chasing with dogs and hounds
a. important because it’s more likely he would have been successful
2. unowned land
3. Pierson shoots and carries it away
9-1-04
Pierson v. Post
1. property in wild animals is acquired by occupancy
2. if Post the 1st hunter has occupancy Pierson trump post?–> no
3. if Post have occupancy, can Pierson win because he has greater occupancy?–>no
4. Question in case is does Post have occupancy?
a. If post didn’t have occupancy, then Pierson did nothing wrong
5. facts
a. no wounding of fox by post
b. post pursued with dogs and hounds
c. Pierson knew of posts pursuit
d. unowned land
e. had been chasing all day
6. Law
a. Statutes-none
b. Cases-none
7. not the law-secondary sources
a. Justinian’s- pursuit alone vests no property right
i. use of dogs means more then mere pursuit
ii. been chasing it all day
iii. had invested labor theory of John Locke
b. Justinian’s-even pursuit and wounding doesn’t equal property rights
c. Puffendorf- corporal possession/bodily possession equals property
d. Bynkershock agrees with Puffendorf
e. Barbeyrac-actual bodily seizure not necessary-only deprive animal of its liberty equals occupancy
i. Post can argue that he almost had the fox
ii. Clearly mortal wounding and continued pursuit is clearly enough
f. Post can only win if he convinces judge that all the facts added to the deprivation of liberty
g. Can also look at policies
8. Important objectives
a. Certainty
b. Preserve peace and order in society
c. Reduce litigation
d. Court trying to accomplish these goals
9. policy
a. reward labor
b. want dead foxes (dissent)àcontradictory because that would be more advantages to person who actually killed the fox
c. encourage the industry
d. rule of sportsmanship
10. lawyers can help give court goals
11. case can never tell more then facts and what the pre-existing rule is
12. what we know after this case is that these facts do NOT equal occupancy
13. Holding: occupancy in wild animals is not done through all day pursuit, with dogs, on unowned land, it doesn’t stand against the one who is ultimately victorious
14. Livingston-dissenting opinions
a. Primary goals to rid farms of foxes, best done by rewarding hunters who labor whether or not they are successful
b. Rule is reasonably prospect of taking
c. Afraid majority rule discourage hunting
15. capture-is how do you achieve property of unowned things
16. Barry Bonds, Livingston, Whaling cases are ultimately more interested in sportsmanship
a. I.e. bad sport
17. Ghen v. Rich
a. Ellis finds whale
b. Rich purchases whale
c. Ghen whaler
d. Facts
i. Ghen kills the whale
ii. Whale sunk
iii. Whale beaches several miles away
iv. Ellis finds it and auctions if off
v. Rich purchases it
vi. Lance has particular marking to each whaler
9-8-04
Ghen v. Rich
only care if Ghen had occupancy first
if sportsman had arbitrated the case in Pierson v. Post, Post would have won, so law began exploring custom
Ghen-p
Rich-D, the man who bought the whale from the person who found it
why didn’t Ghen sue Ellis (one who found the whale)
rich had his property
most to gain from rich
suing for conversion, rich most likely
can’t find Ellis (possible)
Pre-existing rules
Taber v. Jennings-when whale killed and marked it is property on captor/one who shot it
Budd-actual possession=property in whaleàkilled, anchored, and attached a flag, whale drifted away and lost the flagàproperty even if not marked when found
Swift-shows that the rule comes from the custom had harpooned the whale and remained in whale but not fastened to the boat
Custom-usage on Cape CodàFinder reports to Province town the owner I.D. and they receive a finders fee
Custom comes to be law when
Embraced by entire industry
Must be of limited application
Can’t industry general understanding of mankind
Has to be long standing (?)
court says-rule of usage will apply
Reasoning-unless the custom is used, no one would becomes a whaleràsounds like dissent of Pierson v. Post
Consistent w P v. P?
YesàP v. P was mere sport
G v. Ràlivelihood
Both reward killing the animal
Person who served public interest won
Why should custom matter?
People settle because they get attitude we can’t do better
i. Cars can’t get more fuel efficient
No progression and innovation incentive
No better products if don’t push an industry
problem 3 pg 30
who should decide
i. custom of industryàsupposed to be neutral
ii. none legislatureàcustom/industry isn’t looking out for everyone’s interest, need to look at big picture
iii. court shouldn’t decide because they are outsiders
9-13-04
Why should custom become law?
everyone will follow it
reduce litigation
supports the industry/labor
efficient for those in the industry
like common law
dispute resolution w/o costs
Why shouldn’t custom become law?
No concern for 3rd parties/outsiders to industry
Less innovation-cap efficiency at certain level
Monopoly-barriers to entry-cartel (OPEC)
i. Less competition
Custom is one-dimensional-based on one goal/value
i. Strike a balance between the good and the bad aspects of competition
Can Greenpeace (interfere with organizations that capture whales) keep that as their custom?
Keeble v. Hickeringill
Pre-existing rules
i. Can’t hinder another in his trade or livelihood
ii. School master good legal type of competition
1. key word-lured-which is okay, not unfair competition
iii. when violence and maliciousness are used there’s an action in all cases
Barry Bonds
Attempt that frustrated by unlawful acts=property
Pre-possessory interest-because couldn’t tell if he established complete dominion and control-because he was still in motion
9-15-04
Gray’s Rule
Momentum
rules of baseball
within other sports and when you have specific control-within your control and move to remove from glove
dislodged during playàno catch
occupancy in animals
unowned things
moving/labor to acquire it
custom of baseball like wild animals
How does one have occupancy over the baseball?
Looked at other incidents piazza having guards go in stands and get ball
RuleàOpinion on page 9, 2nd to last paragraph
Significant but incomplete step to achieve possession and effort is interrupted by unlawful acts of others, they have a pre-possessory interest
i. Based largely on whaling customs, questionable because you have a harder time getting physical control of 50 ton whale
ii. Shipwreck cases
Fruit and prune cases and Karen v. Catchman—bag of money being thrown around and each boy at one time had possession—can you have possession when you do not know what is there?
Rule in stands is custom of kill or be killed
property interest in baseball is determined by occupancy by who ends up with the ball—this would advocate mob violence
Does
i. OLQ v. FinderàOLQ wins
ii. Gas company doing work and find embedded in the soil a boatàcourt says the boat belongs to the land owner because it is regarded as a mineral type of land element
iii. Rational
1. P gets the boat because the boat is like a mineral and all like things will be treated the same even if they aren’t explicitly listed
Peoples court case
i. When finder finds something, it must be returned to the true owner, so while finder is in possession he is an agent for the other (true owner)
ii. Wallet left at the counter of a deli, employee holds up the wallet and says is this anyone’s, man comes up and gets it, a little while later, the true owner comes in, and deli employee said I just gave it away, owner sues deli under negligence
1. Owner wins because by taking possession they had a duty to the owner of the wallet to express exercise of true care in returning the wallet
McAvoy v. Medina àOLQ v. Finder (1866)
OLQ wins
1. Customer finds a wallet laying on a table in the barber shop and turns it over to the shop owner
a. Important distinctions
i. Honest customer
ii. Rightfully in the shop
iii. Wallet on table
b. Precedents
i. Bridges v. Hawesworth
1. Settled law that the finder of lost property against everyone but true owner, generally place that it is found creates no exception
2. Judges is making a new rule because otherwise the finder would winàhe doesn’t think that the finder should win, so he creates a new ruleàmakes exception to the rule
a. More likely to be found if it is left with the OLQ instead of the finder because it is more likely that the true owner will come back looking for it
i. Mislaid means intentionally placed and left behind
ii. Lost unintentionally placed and left behind
iii. Only way to know if it is lost or mislaid, is to ask the true owneràif that were possible there would be no case because true owner would automatically win
iv. Only way to determine if lost or mislaid is where it is found
1. counter v. flooràwhere people usually place things v. where people don’t usually place things
3. Who should get windfall if reunification is impossible?
a. Giving it to the OLQàperson with duty or bailment will be compensated because they are potentially liable to the true owner
4. Rational
a. Paying the windfall to person who has a duty
b. Rewarding honesty of the finderàonly have honest finder because without that there is no case
c. Reunification of property with the true owneràmost of the time unlikely the true owner will never return because it has been so long since the time it was found to the time the case gets litigated
d. Reward finder for their labor because otherwise it wouldn’t have been foundàif agent/principle relationship it gives the finder a double windfall if they are already getting paid to do the work because they have already been compensatedàlabor is often very minimal inmost cases
Outline:
Have rules
application
seeds of analysis what is written on board
factors of analysis listed
Rules
True owner always wins
Mislaid property is intentionally laid and left behindàOLQ wins
Unintentionally laid property is lostàFinder wins
Abandoned propertyàFinder
Treasure troveàsomething old, usually old and found on someone else’s propertyàreunification is impossible so it goes to the Finderàthink Pirates
i. Favorite v. Miller exception because he was a trespasser and knew he was on someone else’s property, so he was a wrong doer
