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Property I
University of California, Hastings School of Law
Leshy, John D.

I. FIRST POSSESSION
A. Acquisition by Discovery
1. J ohnson v. M’Intosh, p. 3, 1823, Marshall
a. Chain of title:
i. P  Indians: conveyance of 1773, 1775
ii. D  U.S.  Great Britain  Discovery
b. Occupancy theory: Indians became occupants at time that Europeans discovered land. The
occupancy right could be extinguished by purchase or sword. Based on Locke’s theory of labor.
c. Law of accession – if you provide materials and somebody else uses them you have a lessor
property claim.
B. Acquisition by Capture
1. Ratione Soli (by reason of the soil) – Establishes constructive possession while the feare naturae is
on the land.
a. English courts claim that constructive possession amounts to title American system claim that
constructive possession does not amount to title, but can exclude other claims, and can get title to
game by virtue of land ownership.
b. Policy – Rule discourages trespassers. If game is unowned, and landowner has no claim, then
other hunters have incentive to chase game wherever they go.
2. Custom – What is the role of custom in reaching the proper decision?
a. Custom functions as an expression of practical experience. Source of wisdom akin to legal
precedent. Leshy thinks that custom can be problematic, because it might not be founded on
legal principle(?). If you impose legal rule contrary to local practice you might end up with
implementation problems.
b. G hen v. Rich p. 26, 1881:
i. Facts: Action to recover the value of a whale. Whalers would shoot the whale with a waif
to mark it. Custom was for the person who found the whale to send word to the town and the
owner would pick it up, finder would receive a small sum. POLICY: Custom promotes
whaling.
ii. Custom recognized as giving possession to owner of waif.
c. P ierson v. Post p. 19, 1805, NY –
i. Facts:
(a) Post was foxhunting on an abandoned wasteland.
(b) Pierson knew this, saw the fox Post was hunting and carried it off.
ii. HELD: Pierson gets the fox, because he captured it.
iii. Rule: If wild animals are captured, they belong to the captor, but capture is required.
d. Barry Bonds case – modern example
3. Ad Coleum – to whomever the soil belongs, he owns also to the sky and to the depths.
a. Capture rule – surface owner would have title. Resulted in the “race to the wellhouse.”
b. Tragedy of the commons – everybody’s incentive is to pump as much as possible. There is no
restraint. Can take as much as possible.
c. Early decisions were made in ignorance. Courts have since tried to create a means of pumping
most efficiently.
C. Acquisition by Creati

to Exclude – the strongest property interest. There is a necessity exception to the right to
exclude. Economic argument to protect property (to avoid a tragedy of the commons), privacy issue.
a. J acque v. Steenberg Homes, Inc., p. 100: D wanted to transport a mobile home across the
property of P because it was the easiest route. P protested but D did it anyways. P sued for
intentional trespass.
i. HELD: The right to exclude is one of the most essential property rights and should be
protected by the State. Society has a strong interest in punishing and deterring intentional
trespassers.
b. S tate v. Shack , p. 101– reinterpreting the common law according to Federal legislation.
i. Ds entered onto private property to provide health and legal services to migrant farmworkers
under governmental auspices.
ii. HELD: Necessity justifies entering the lands of another. One should not use his property to
injure others. Property rights do not include the right to bar access to governmental services
available to migrant workers.