Property I Outline

I. Acquisition by Discovery
·         A. Principle of Discovery
·         General Rule: According to the principle of discovery, discovery of land in America by a European power gives absolute title subject only to the Indian right of occupancy.
·         Elements:
o        1) Discovery gave title to the government by whose authority it was made against all other European govts., which title might be consummated by possession.
o        2) Extinguished Indian title, sole right to take land and title from the Indians, who cannot convey land to other people/power—from discovery principle
o        3) Title means having superior right to do as it wishes with the land, no absolute title because govt. has eminent domain
o        4) Basic Principleà the state determines the rules of property ownership and priority
·         Johnson v. M’Intosh
o        European Sovereigns initiated the notion of title, their system. In US courts, title is recognized it must be derived from the US (US system). Rules require the title is established simply by tracing it back to the grants.
o        Cause of Action:
§         Ejectimentà Plaintiff must prove:
ú         1) P has title to the land
ú         2) P has been wrongfully dispossessed
ú         3) P has suffered damages
·         Reasons behind rule:
o        1) basic rule for international property law
o        2) Practical basis, way of acquiring land from indigenous people: Indian people had right to occupancy, as long as they were there, they can stay
o        Must have way of determining where title begins and how title gets transferredà to prevent conflict
·         Actual State of Things Doctrine: People have accepted and relied on a past rule and expect its upholding
·         B. Occupancy Theory
·         General Rule: the occupancy theory says that if something