Paul – Property Outline
Spring 2011
From Possession to Property – How Social Facts Differ from Legal Rules
1. Un-owned Items
2. Pierson v. Post
a. Property in wild animals is only acquired by occupancy, and pursuit alone does not constitute occupancy or vest any right in the pursuer
i. Mere pursuit gives no legal right to an animal
b. Reasoning
i. The second element of possession (called occupancy in parts of the opinion) was not present
ii. Without occupancy; Post did not have a sufficient interest in the thing sued for
1. Rule of first-in-time, first-in-right
a. Rule of priority in time
ii. Public policy
1. Accepts that killing foxes is a socially useful enterprise
b. Dissent
i. Elaborates on public policy
ii. Killing foxes saves chickens; protects activities of farmers
3. Popov v. Hayashi
a. Foul ball case. Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property.
i. However, in this case the interference wasn’t illegal, and so both of the rights can be asserted (therefore, the ball should be sold and the profits should be divided)
1. Sell ball and split money; equitable solution
Rule of Capture Analogies:
4. Elliff v. Texon Drilling Co.
a. Elliff brought suit for Texon negligence; owned land; drilled diagonally; well blew and caught fire; destroyed lots of Elliff’s land
i. Rule of capture does not insulate adjacent landowner for damages from the wrongful capture of gas and distillate from beneath the land of another
1. Rule did not protect Texon
a. Had duty to exercise due care and avoid injury to property of others; was therefore liable
5. Constructive possession
a. Denotes possession that has the same effect in law as actual possession, although it is not actual possession in fact
i. Dissent in Pierson
1. Post’s pursuit put him in constructive possession of the fox; gave him a right to possession that was not yet actual possession
b. Context of natural resources law
i. Owners of land with unextracted oil, gas, or other minerals lying beneath its surface might not be in actual possession of those minerals, but they are often said to be in prior constructive possession of them
1. Legal maxim; whoever owns the surface also owns to the depths of the either
6. Rule of capture
a. Minerals belong to the party that actual produce them even if they migrate from adjoining lands
b. Class notes; both parties own underneath both property; encourages drilling; extract and it is yours
i. No liability for reasonable drainage from common pool
ii. Does not give owner any right to waste the gas; destruction of gas was not a legitimate drainage or lawful appropriation
Investors and Competitors:
7. Qualitex Co. v. Jacobson Products Co.
a. Company registered color of dry-cleaning pads as a trademark
b. Functionality doctrine
i. If all colors will eventually be used up; but if it becomes an issue; court said will step-in
ii. Prohibits trade-marking from inhibiting competition
8. Feist Publication, Inc. v. Rural Telephone Service, Co.:
a. Published phone directory as result of monopoly franchise
i. White pages that listed alphabetically; numbers and addresses of Rural’s survivors
ii. Used listings without Rural’s consent; sued copyright
b. Held
i. To be copyrightable, a work must be original and possess at least some minimal degree of creativity; can only copyright original ideas/materials
1. Protect creativity and the sciences
2. Court will provide incentive for original creation; not for discovery of facts
c. Idea/expression or fact/expression dichotomy
i. Copyright assure authors have right to original expression; also encourages others to build on idea copyrighted
9. Doctrine of misappropriation (E&E)
a. A person might invent or create a thing, and be entitled to obtain a patent or copyright under federal law, or a right to sue to prevent is misappropriation generally
b. When a P has by a substantial investment created an intangible thing of value not protected by patent, copy right, or other intellectual property law and the D appropriates the intangible at little cost so the P is injured and the P’s continued use of the intangible is jeopardized
a. Action for misappropriate will lie
c. Public policy
i. Copying many things result in useful competition and lower prices
10. International News Service v. Associated Press
a. Took factual stories from AP bulletin; or AP clients; or newspaper stands and published themselves; wired from East Coast to West Coast stories that hadn’t been published yet (ones from newspaper stands)
b. Publication for profit of news obtained from other news-gathering enterprises is a misappropriation of a property right
i. Unfair competition for one company to redistribute news collected by another company
ii. When two competing news organizations are involved, each gaining their livelihood from beating the other’s deadline, the use of such news, for profit, is a misappropriation of the other’s product, and an injunction is appropriate.
c. Held
i. That as between
i. Because in burial ground; belonged to descendant’s because not abandoned; ownership could not be acquired over objection of descendants
ii. Although Indians couldn’t prove perfect chain of title; even though tribe moved from location; didn’t abandon property; buried with intention of leaving objects in the ground
1. For claim of unjust enrichment; couldn’t sustain claim that he was impoverished because he did not have landowners permission to excavate; so was working at his own risk
17. Tapscott v. Lessee of Cobbs
a. Facts
i. Cobbs wrongfully takes property from true landowner; claims he is rightful owner; then tapscott enters land and occupies it; Cobbs brings action for ejectment to remove Tapscott
b. Neither party was the true owner of the land; if dispute arises over possession; will be given to the first possessor; suit is not about title; it is about possession
i. Cannot be defense by later possessor that title belongs to third person
c. When two people have interest in land that is solely possessory; and one has ousted the other; the first possessor will have priority in the land over the subsequent possessor
i. The idea of title is relative
1. may be good against one person (subsequent possessor) and not against another (true owner)
18. Public policy
a. People may engage in violence to get possession of land; and still be able to defeat claim of person
Law of Finders and Prior Possessors
19. The study of finders of personal property (property other than real property)
a. Someone lost something; someone else found it; now who owns it?
20. Rules as to
a. When the original or true owner cannot be found
b. The finder and the owner of the place of the find (the locus in quo) may each claim possession
c. Common law
i. Holds that a finder of lost property has greater rights to the found property than the entire world except the true owner
ii. The title of the finder is good as against the whole world but the true owner
iii. The Law of Personal Property 3rd
1. A finder of lost property is a person who
2. Takes control of the lost property and
3. Has the intent to maintain possession of the property
4. Requisite control and intent to possess
