Property I Outline

Property
Vars
Spring 2012
 
 
Acquisition by Discovery
Notes: Rationales for the rule
·         Locke Theory – mixed labor with the land
·         International rule – rule of discovery founded in international tradition
·         Settled expectations – why change the way it has been done in the past
·         racism
Johnson v. M’Intosh
·         Facts: π originally bought land from chiefs of an Indian tribe, and the D revived the same land under a grant from the United States. The issue is whether the Indians had the right to sell the land to the Plaintiffs in the first place.
·         Rule: “The discovery of Native American – occupied lands of this nation vested absolute title in the discoverers, and rendered the Native American in habitants themselves incapable of transferring absolute title to others.
·         The history of America has demonstrated the principle of allowing Native Americans to retain title of occupancy, but incapable of transferring title to others.
·         This rule generally is based in history and racism.
Acquisition by Capture
Pierson v. Post
·         Facts: Post (p) a was hunting a fox, and Person (D), knowing this, killed the fox first and carried it off. Post was also in Pierson’s view. The issue is whether a person in pursuit of a wild animal acquired such a right to or property in the wild animal as to sustain an action against a person who kills and carries away the animal, knowing of the former’s pursuit?
·         Rule: Property in wild animals is only acquired by occupancy, and pursuit alone does not constitute occupancy or vest any right in the pursuer. There must be something done to the animal it must be “mortally wounded, or trapped in order to claim ownership.”
·         Majority – [if exercise “certain control” over the property] ·         Minority – [if there is a “reasonable prospect”] ·         Tests compared:(showing increasing control)
o    Wild à Reasonable Prospect à Certain Control à Dead in hand
Ghen v. Rich
·         Facts: Rich (D) purchased a whale at auction from a man who found it washed up on the beach. The wale had been killed at sea by the crew of Ghen’s (p) whaling ship which left Ghen’s identifying bomb-lance in the animal. 
·         Issue: Whether by the trade usage was the whale placed under sufficient control by the capturing whaler so that it became his property?
·         Rule: When all that is practicable in order to secure a wild animal is done, it becomes the property of the securer who has thus exercised sufficient personal control over the wild animal.
·         Differs from Pierson’s standard of “mortal wounding” but in this case the p has done all that is possible to capture the animal under the circumstances.
Keeble v. Hickeringill
·         Facts: Keeble (p) owned land containing a duck pond. He loaded the pond with decoys to seduce game to come to the pond so that he could make a profit off of them. Hickeringill (D) discharged gunshots near the pond in order to scare the ducks away.
·         Issue: Whether p may recover damages from D for purposely frightening the game off of his property.
·         Rule: Damages may be recovered for the intentional frightening of game off another’s land. “every man that hath a property may employ it for his pleasure and profit.” “he that hinders another in his trade or livelihood is liable to an action for hindering him”
·         Firing off guns is impermissible whereas having your own (better) decoy is acceptable because:
o    If everyone fired off their guns then no one would capture the ducks, and therefore there would be no benefit to the economy
o    Whereas if everyone was to make more elaborate decoys then there are still ducks entering the market.
Notes:
·         Anti-harassment Laws –
o    Some states have put in place anti-harassment laws so that advocates of animals do not disrupt hunting practices
·         Prior Appropriation:
o    General Rule – the person who first appropriates (captures) water and puts it to reasonable and beneficial use has a superior right to later appropriates.
o    Exception to rule: – If exercise due diligence in digging a channel to set up path for water, the moment tried to put it to beneficial use is protected as the moment they started building the channel.
Popov v. Hayashi
·         Facts: Case where the foul ball was disputed over between the two parties. p was in the process of catching the ball when he was knocked down by others, which knocked the ball out of his hands, which is when Hayashi, D, obtained control over the ball.
·         The issue is whether or not the p gained “certain control” over the ball such that it was his property.
·         Popv did not have certain control therefore under the Pierson rule he would not win the case.
·         However under the dissenting opinion of Pierson, p would have a good argument.
·         Under Ghen v. Rich standard – here the fair play rule does not come into play b/c both p and D did nothing wrong.
·         Rule: “Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. That pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion.”
·         The parties in this case were required to sell the ball and divide the proceeds equally between them.
 
Acquisition by Creation
International News Service v. Associated Press
·         Associated press, p s, sued to enjoin International News Service, D from publishing as its own news stories obtained from early editions of AP publications. AP cannot sue INS for violation of copyright b/c INS is taking news stories and putting them into their own words and selling it. News is also difficult to copyright because news is history.
·         Issue: Whether  the publication for profit of news obtained from other new-gathering enterprises a misappropriation of a property right?
·         Rule: Publication for profit of news obtained from other new-gathering enterprises is a misappropriation of a property right.
·         “The process amounts to an unauthorized inference with the normal operation of complaint’s legitimate business precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have earned it to those who have not”
·         If INS prevails, “the cost of the service would be prohibitive.”
 
Cheney Brothers v. Doris Silk Corp.
Facts:
·         Cheney Brothers, p, designed and marketed silk garments. Doris Silk Corp., (D) copied a design and successfully marketed it.
·         Cheney Brothers could not patent the design, nor copyright the design because of the short nature of the season.
·         The issue is whether  a person cannot obtain a patent or copyright on its product, can it recover for the copying of it by others?
·         Rule: If a person cannot obtain a patent or copyright on its product, it cannot recover for the copying of it by others.
·         Seems similar to AP v. INS but here they are asking for a season’s worth of protection, whereas AP was asking for a short time period worth of protection.
·         The law generally follows the ruling of Cheney Brothers
 
Moore v. Regents of the University of California
·         Facts: Researchers at the University of California used potentially lucrative cell line produced by the p, Moore’s, spleen without p’s knowledge or permission.
·         Issue: Whether a person whose tissue is used for profitable research and development without his/her knowledge maintain a conversion action therefore?
·         Rule: A person whose tissue is used for profitable research and development without his knowledge may not maintain a conversion action thereafter.
·         Conversion – “must establish an actual interference with his ownership or right to possession…”
o    here once the cells were removed from his body his ownership interest was gone.
 
Acquisition by Find:
Notes:
·         Notice that the word find is ambiguous – make sure to be able to distinguish “find” from “control” and “discover”
·         Here there is a true owner, who has lost their possession and it is found by another
Armory v. Delamirie:
·         Facts: Armory, p, found a jewel which he took to D, Delamirie, a goldsmith, for appraisal, but D apprentice removed the stones which D refused to return.
·         The issues is whether p, who lacked legal title to the chattel, stones, could maintain an action to recover its value?
·         Rule: A finder of chattel has title superior to all but the rightful owner upon which he may maintain an action at law or in equity.
o    finder has good title against all but the true owner, and previous finders
o    Generally it doesn’t matter if you were trespassing when the item was found
·         The court requires that D gives back the stones or the most value of the most valuable stones that would fit in that pouch
o    This is called a default penalty – because for policy reasons we like to try and get more information from the other parties.
Hanna v. Peel
·         Facts: Hannah, p, found a brooch at Peel’s, D, home during WWII, and sought to recover it after police handed it over to D.
·         The issue: is whether the finder of a lost article entitled to it as against all persons except the real owner?
·         Rule: The finder of a lost article is entitled to it as against all persons except the real owner.
o    The court focused on the honesty of the p in this case when ruling in favor of the p.
o    This holding could give incentive for parties to snoop around looking for items unknown to the landowner, and give incentive to landowners not to allow individuals on their land.
 
McAvoy v. Medina –
·         Facts: A wallet was inadvertently left at a barber shop, a customer, p, found it and the barber, D asserted ownership over the wallet.
·         The issues is whether the finder of misplaced goods of another’s property obtains title to those goods.
·         Rule: Misplaced goods (items intentionally placed by the owner where they were found and then forgotten or left there) are deemed to be in the bailment of the owner of the property on which they were found for the true owner.
·         The court found that the pocketbook should go to the shop owner because the pocketbook ws not lost such tat the finder could have a claim.
o    there is a difference between “mislaid” – or put somewhere intentionally, and forgot to retrieve it in comparison to dropping the billfold outside of a bus”
 
Adverse Possession:
Notes:
·         Adverse possession differs from statute of limitations in that the party is receiving title instead of just precluding an action.
·         Reasons for Adverse Possession:
o    Want to reward productive use of land – the earning theory
o    A landowner who has not made use of the land “slept on his/her rights” is not wanted either. – “sleeping theory”
o    Want clear title so that the lan