Prof Stephen Utz
1. First Possession:
a. Acquisition by discovery
i. Porperty – a bundle of property rights
ii. D – finding of unknown territory
iii. Conquest – taking po through force of enemy
iv. First in time – still important
1. Johnson v. M’Intosh: Discovery gives an exclusive right to extinguish the Indian title. Justice Marshall also indicates that you can’t really own something without government involvement à either license or permission required from the government.
a. Case is unique because the European countries didn’t conquer the inhabitants. Instead, Europeans claimed the right of discovery à right to possess land against later discoverers.
b. Because the United States was “sovereign,” started off with title against all the land.
c. We’re left with basic principles of property law:
i. Possession/title before a conquest gives the possessor no particular rights against conqueror (or in European “discovery” of United States, against discoverer).
ii. Post-discovery and post-conquest, titles must be reaffirmed by the new sovereign.
iii. After conquest, the previous owner only has the right to exclude other non-sovereign interlopers.
iv. Title depends entirely on the will of the sovereign, until the sovereign confirms/ratifies the claims. After that, sovereign’s hands are tied.
d. Note that the rule of sovereignty in M’Intosh can’t apply to wild animals as the sovereign can’t regrant all the personalty
2. Right of occupancy (=po) versus title
a. Right of occupancy doesn’t include the right to sell the land, but the right to live and keep it for their own use. Doesn’t require constant possession or living. Since the Indians in M’Intosh only had right of occupancy, Indians couldn’t transfer title.
b. Capture – 2 major rules: an earlier po-or of wild animal or un-owned things has right superior to those of later po-ors; po once taken is deemed to continue unless abandoned, continued acts of po are not required.
i. Capture of wild animals required – mere pursuit is not enough (first discovery isn’t enough for private persons, but above it is for sovereigns), unless mortally wounded or trapped so that capture is virtually certain
1. PP: competition; easy to administer
2. Ex.: Pierson v Post
3. Po acquired if captor uses reasonable precautions against escape from enclosure
4. Wild animals that escape cancel po by first captor and are subject to capture by another
a. BUT: if exotic animal – there is notice – and cannot recapture animal
5. Wild animal with habit of return continue to belong to the captor
a. PP: domesticated animals valuable to society
6. Interference by non-competitors (Greenpeace) in capture prohibited, PP:
a. they don’t want property rights
b. society wants animal caught
i. Ex: the duck pond case: pond for profit neighbor shoots to scare away. Held: entitled to damages, D intentionally frightened. P didn’t have title to ducks but was using land in accordance with the law, had property right in ducks they were on his land.
1. RATIONE SOLI – owner of land has constructive possession of wild animals on his land until they take off
ii. BUT: exception – custom may dictate that physical capture not required for po:
1. Ex.: Ghen v Rich: the whale tagged sinks and found by another case: killed and marked = po; notice important: waif didn’t hold still
2. PP of deference to custom: basis of an industry and community support.
iii. Oil and Gas treated as wild animals, PP – incentive to produce. Can be drained from neighboring land.
1. Ground W
a. English rule – eastern states where a lot: same as wild animals
b. Reasonable use doctrine – western states where water scarce: reasonable capture – wasteful use if it harms neighbor unlawful.
2. Surface W
a. western states – first captor in time has rights superior to other owners
b. eastern states – each owner along a water source has right to use subject to the rights of other owners
i. A person can acquire property by creating it, PP – to reward labor; but – problem when someone mixes his labor with labor/goods of another
ii. Intellectual Pr – Pr in ideas and expressions – general principles
1. Dilemma in recognizing IPr – nurture individual creativity and reward labor without creating monopolies, since creativity thieves on imitation.
2. To avoid monopolies and encourage competition CL allows copying and imitation of ideas, as opposed to their expression (chattels that embody invention).
a. Ex: Cheney Brothers: dress that live one season and are impossible to copyright/patent copied by competitor. No property rights in patterns, limits holding in INS
b. Smith v. Chanel: where Chanel wanted copycat of Chanel No. 5 to stop making claiming that its product was the equivalent of Chanel No. 5. Court held that there was a strong public interest in letting Smith copy Chanel No. 5, especially since the perfume was unpatented
c. But exception – rights in Persona: right to publicity cannot use a celebrity’s name, likeness, voice, signature, even imitation for profit without consent; PP – person labor in creating person of value is protected.
i. Ex. White v Samsung: wheel of fortune hostess case
3. Unfair competition – protect labor and investment.
a. Ex: a news agency has a quasi-property interest in news it has gathered and can prohibit competitors from disseminating the news until its commercial value as news has passed away – published. International news service
iii. Rights in person=rights in body products
1. Some body products have long been sold on the market: blood, sperm, hair
a. But: Moore: man did not have property right in his removed spleen tissue when docs after he consented to it removed it and made it into a very profitable commercial enterprise. Docs who created the cell line acquired ownership. PP – did not want to make body
2. Lost in territorial = coastal waters: if not embedded – F takes, otherwise the state takes
b. Adverse Po
i. Theory – st of lim runs on a person who has a cause of action and does not bring a suit -> remainder man cannot bring action, but can bring action of waste against true Po-or.
2. Effect – new title is created but cannot be recorded, until action to quiet title
3. PP: protect owner (Ti difficult to prove), efficient use, stale claims, expectations
4. Length – 6-21, trend to shorten
5. Po-ors rights same as true owner, but no right against true owner until statute runs
1. Actual entry giving exclusive po
a. P: trigger cause of action
b. Cannot share po with public, owner
c. SPLIT: po of part means constructive po of all
2. Open and notorious
a. P: give reas notice
b. Acts of a typical owner from which community will infer claim of O-ip
i. Must be appropriate for size, condition and locality of the land
3. Adverse and under a claim of right/title
a. Po without the O’s consent
b. P: assure O will not be lulled into believing AP-or will make no claim
i. Objective T:
ii. Subjective T
1. Ex: gardening on the abandoned premises case: although cultivated did not know it was his.
2. One type – color of title
a. Ex. forgery
b. MIN: required
c. SOME: Advantages
i. Po of part= constr po of all
ii. Shorter St of lim
iii. Aggressive trespass
c. Boundary disputes – when one of the parties open and notorious po of a strip of land mistakenly believing to be his
i. MAJ: objective test
ii. MIN: Maine doctrine:
1. If miskanken but
2. If knew would not have occupied – intent missing
iii. NJ: objective test with qualification: when small area at issue and intrusion not self-evident – not open and notorious – statute of limitation will run only if O knows about encroachment
1. Ex: neighbor’s son builds concrete steps that encroach 15 in on another property case: equity invoked – doctrine of good faith improvement – innocent trespasser cannot without great expense remove encroachment O may be forced to convey land for compensation
iv. Doctrine of agreed boundaries: agreement subsequently honored for long time legit
1. Long acquiescence – proof of agreement
2. Estoppel applies