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

What is property?
–          it is socially contingent.
o   Relationship between people with respect to property.
A.     Acquisition by Discovery
1.      Johnson v. M’Intosh, p. 3, 1823, Marshall
a.      Chain of title:
1.      P à Indians: conveyance of 1773, 1775
2.      D à U.S. à Great Britain à Discovery
b.      Occupancy theory: Indians became occupants at time that Europeans discovered land. This discovery created a kind of ownership vis a vis the Europeans. The occupancy right could be extinguished by purchase or war. 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.
d.      Rule: Many transactions on the new world go by the legal construct that discovery creates title – subject to the Indians right of occupancy, which can be extinguished by government either by payment or war.
e.       This is a European conception of law and possession. Conquest as a source of property rights (defined by the society in which they are at issue.)
B.     Acquisition by Capture
1.      Ratione Soli (by reason of the soil) – Establishes constructive possession while the feare naturae is on the land. LO has the right to exclude others and has the better claim to the fox because he is entitled to deprive trespassers of their game taken from his estate.
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. Doesn’t mean u own the animal, just opportunity to catch it.
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. Also customs are different depending on who you talk with.
b.      Custom doesn’t automatically control, the law reserves the right to go above what custom is.
c.       Ghen v. Rich p. 26, 1881: 
1.      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.
2.      This is the opposite of the occupancy rule, because here the pursurer gets the whale, not the person in actual possession.
3.      Rich knew or should have known the custom. Custom controls here.
4.      Custom recognized as giving possession to owner of waif.
3. Actual Possession
d.      Pierson v. Post p. 19, 1805, NY –
1.      Facts: 
(a)   Post was foxhunting on an abandoned wasteland.
(b)   Pierson knew this, saw the fox Post was hunting and killed it and carried it off.
2.      HELD: Pierson gets the fox, because he captured it.
3.      Rule: A property right in a wild animal is acquired by “occupancy” only. If wild animals are captured, they belong to the captor, but capture is required. The mere pursuit is insufficient. But the mortal wounding of a beast or the trapping of a beast does give possession to the person who so apprehends the beast.
4.      Livingstone Dissent: Recognition of property right in wild animals when there is a reasonable likelihood of capture (pursuit, expending effort and energy) would conduce to more rapid extermination of foxes and want to encourage more sportmans like behavior.
(a)   This leaves room to argue facts and its ambiguous, but is good because theres more flexibility for justice and fairness.
5.      Tompkins Majority: actual possession, mortal wounding (making possession a near certainty) – the prof likes this because there’s predictability and certainty and makes for more efficiency in the court system. 
e.       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. Over exploit cuz the costs are not borne by each user.
c.       Early decisions were made in ignorance. Courts have since tried to create a means of pumping most efficiently. This can only be changed by legistlation. Even tho know better to change, reluctant to change. Dead hand of capture rule. This is hard to change cuz it goes back to the mislabeling of landownership right to the people. People are protective of property rights even if in reality, there is no real right cause won’t help you against neighbor with big pump taking ur resources.
d.      Oil and Gas: Apply capture rule. Can capture ground water or gas as long as drilling on their land. Doesn’t matter if tapping someone else’s resource. (biggest pump wins). This idea of owning from sky to depths not really true if can take neighbors ground water.
C.     Acquisition by Creation
1.      INS v. AP, p. 60, 1918 – INS was benefiting from AP’s work (Locke). AP does not have a property right in the news or facts, or from other people disseminating the information. However, AP wins on an unfair competition theory. AP didn’t have a copyright.
a.      Court wants to encourage news gathering but, “punish INS for reaping what they did not sow.”
b.      Relational property right. Constitutional protection carries strong protection.
c.       Can’t copyright the facts, but can copyrt the style (composition of the words). The ct labels news as “quasi” property.
d.      Copyright is in the const – protect creators and their writings and discoveries for a limited time.
e.       But property rights are state laws.
f.        HELD: AP has a quasi property right in the news it has gathered and may prevent other competitors from using it. P has a right to make merchandise out of the news for commercial profit, put in labor time expenses and D is reaping with profit which it has not sown.
2.      Cheney Bros. v. Doris Silk Corp., p. 64 – Imitation is not forbidden in common law. Encouraging imitation = consumer benefit. Δ did not have a copyrt on its dress designs.
a.      LESHY – theoretical idea of creating a federal IP protection. Hand feels that if Congress hasn’t protected these things, then the property rights don’t exist.
b.      Policy – tension between encouraging creation and consumer benefit.
c.       Didn’t want to extend the INS precedence
d.      A man’s property is limited to the chattels which embody his invention, others may imitate at their pleasure.
e.       EX: Smith v. Chanel: in the ad said that equivalent to Chanel #5. Ct saud that even tho chanel created the product, the copyist is serving a public interest by offering comparable goods at lower prices.
3.      Nichols v. Universal Pictures: Copyright protection does not extend to overall theme of the copyrighted work.
4.      White v. Samsung: Personal image is a valuable property right. Δ’s depiction of a robot in a blond wig and dress posing infront of the Wheel of Fortune infringed Vanna White’s common law right of publicity.
5.      Metro v. Grokster:  Δs intended to induce or encourage direct infringement of copyrighted materials by distributing their file share software, they were contributorily liable for the 3rd party infring

   Bundle of sticks idea. Only need one or two to apply to property, and might be expansive or limited.
F.      Creation of property law is mostly court common law. Sometimes there is state and federal legislative decisions. 
G.    Court are using result oriented theories, but are also trying to make the most reasonable decisions. Courts are bound by tradition (how judges should behave/ stare decisis/
H.    Majesty of the law.
A. Acquisition by Find
=> Abandoned property: TO has voluntarily given up claim of ownership. Finder of abandoned property acquires title.
            – Trepassers get nothing.
1.      General rule: A property owner continues to own his property even after he loses it or misplaces it. A finder has rights superior of everyone but the true owner. Between finder 1 and finder 2, the prior possessor has the superior right. This rule applies even if finder 1 stole from TO.
2.      Lost and Mislaid Property: A finders title is good against the whole world except the TO, prior finders and (sometimes) the owner of land where an object is found.
3.      Armory v. Delamirie, p. 96
a.      Chimney sweep found valuable jewel and took it to a goldsmith for appraisal. Goldsmith took the stone and wouldn’t give it back.
b.      HELD: Bailee’s right is stronger than everyone else’s except for the original owner (involuntary bailor).
c.       They both have concurrent property interest, but for now, the finders is good against the world.
d.      The kids is owed the highest value of what can fit in that socket (FMV)
e.       Over all, TO still owns it.
f.        What if the master buys the kid’s jewel?
1.      The TO still trumps the masters right because the master can’t get more than what the kid had. The kid just had a relative title, good against he world except the TO.
2.      If the TO comes and asks for it back, the master has to give it back. But the master can demand the money back from the kid.
g.      Policy: Protect the TO and that prop found will be returned to the TO. Not finders keepers.
h.      What if the TO lent the stone to friend and friend sold it to master. If the master is truly innocent, then can’t punish the master- the TO can’t get it back. But if the master knew it was stolen, then need to give back. Weigh culpabilities.
i.        What if true owner shows up 50 years later? At common law, there is no time limit, but statutes may impose a time limit. 
j.        Why would you incentivize lost property? Not really a social problem.
1.      LESHY’s reasons – stuff happens, carelessness is a loose term. Policy argument of giving people incentive to take care has almost nothing to do with the Law of Finds. 
4.      Doctrine of abandonment – law implies that the true owner has implied any right to the property. Abandonment is the intentional relinquishing of a possession without intent to return.
a.      Held: Π wins. He’s honest too. Want to reward that.
ð Finder v. Landowner: Locus in Quo = owner of the land upon which the property was found.
o   Trespassing Finders: Trespassing finders of lost or mislaid property lose.