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Property I
University of Connecticut School of Law
Berger, Bethany

Property Law, 6th Edition by Joseph William Singer, Bethany R. Berger
Professor: Bethany R. Berger, UConn Law, Spring 2016
I.  Intro and II.  Justifications for allocation of property
Governmental Fiat & Distributive Justice: Indian land (case), government grants, freed slaves | pp.83-104
Competing justifications for property rights:
First possession or occupancy
Finders keepers
Labor and investment
Efficiency and maximization of social welfare
Distributive justice
Things should be divided fairly
Sovereign authority or might makes right / Positivist
Those gov. says gets property
Settled expectation
Property rights that arise in violation of the law (eg, adverse possession)
Utilitarian / social welfare
What improves societies interest as a whole
Johnson v. M’Intosh (Indian land case) (S.Ct.1823)
Prob: Guy’s (P) dad brought land from Indians way back; but that same land was given to US gov by state of Virginia; and US gov sold it to D.
Crt: too bad. Land title transfers are only valid when made under the rule of the currently prevailing government. Land title transfers from Indian tribes to private individuals prior to the American Revolution are not recognized in a United States court.
Discovery gave an exclusive right of property to the conquerors. Native Americans have right of occupancy but can not give property title to private individuals, but they have the right to exclude.
Marshall relied on discovery doctrine.
Justifications for property rights within this case:
First possession or occupancy. (P argued this)
Labor and investment (D argued this)
Efficiency and maximization of social welfare (D argued this)
Development on Native American property rights:
1960s: Congress says tribes can bring suit about land acquisition
2005 S.Ct: lashes, something about tax immunity?
Governmental Grants & Squatters
Homestead Act of 1862: If you don’t have land you were given some, worked it for 5 years and it became yours.
Labor and Utilitarian arguments used to justify this Act
Squatting became an accepted way to acquire land because of these types of acts
Freed Slaves

Similar argument as above: the land should go to the one who works the land

40 Acres and a Mule
Labor and Investment: 107-122
International News Service v. Associated Press (S.Ct. 1918)
No work = no right to make profit off it. D has taken the hard work (labor investment) of P and used it for profit (hurting P) – unfair competition. P has quasi-property right in selling its gathered news.
No longer good law because it’s Pre-Erie. Erie decided no federal common law
However, many states adopted hot news tort. 
limited time, enough to recoup cost of creating it.
F: AP brought suit against INS seeking an injunction prohibiting INS from pirating AP’s news. INS took news published by AP on its bulletin boards on the East Coast, and sold the news as its own to its West Coast customers.
Q of whether a continuing property right exists in published news such that appropriating the published news gathered by another for further commercial purposes constitutes unfair competition in trade.
D should be barred for certain period of time unless they give credit to the source
Dissent (Brandeis, J.) *Important
Under general public policy principles, once knowledge or communications have been expressed to the general public, the originator loses any property right he or she may have had in the knowledge or communications. When AP published its news on a public bulletin, it gave up its property right in the news matter.
This is best left for Congress – they can create agency/police force
The knowledge and communication cease to be considered “property,” as they can no longer be owned and protected by the originator.
TEST: Doctrine for deciding whether there is a hot news tort as established by 2nd Circuit (these are elements):
1) Info is time sensitive
2) D free-ridded on P’s labor
3)Threatens the viability of P’s bsns
Concept originated in National Basketball Association v. Motorola Inc.?
Tragedy of the commons: tragedy or comedy?
If you start with assumption people are rational, property rights look like a tragedy because people will keep on using common resources until the whole is hurt
Some things are better off shared
Possession: 130-146
Pierson v. Post (Wild Animals) (NY 1805)
Pursuit alone is not enough, need certain control.
Pursuit of a wild animal does not vest property rights in the pursuer unless he mortally wounds or captures the animal.  (Bright line rule)
On whose land can also be important.
F: Post (org plaintiff) was hunting a fox and Pierson (org defendant), seeing this, captured and killed the same fox. Post brought a trespass suit claiming that he had legal possession of the fox. The lower court found in favor of Post. Pierson appealed.
Opinions of ancient legal philosophers. Justinian’s Institutes, Fleta, and Bracton = Only actual possession will suffice.
Similarly, Puffendorf and Bynkershoek generally agree with this proposition but would carve out an exception for cases in which the animal has been mortally wounded and the party is still in hot pursuit.
Barbeyrac’s notes on Puffendorf suggest that “bodily seizure” is not required, though he does not spell out what acts would constitute possession. It seems that mortally wounding and pursuing an animal would be enough, as it would manifest the party’s intent to “appropriate the animal to his individual use,” curtail the animal’s freedom, and bring the animal within her control.
Further, Barbeyrac also seems to approve of Grotius’s notion that trapping an animal in a manner that prevents escape establishes possession. In light of these principles, this court holds that mere pursuit of a wild animal, without mortally wounding or trapping the animal, is not enough to confer property rights.
Dissent (Livinston, J.)
We should reward him for killing foxes (nuisance to farmers) – social utility
Property in wild animals is acquired when the pursuer is within reach or has a reasonable prospect of taking physical possession.
An arbitration of sportsmen could have decided this case without resort to the opinions ancient philosophers. The laws should change with the times
Popov v. Hayashi (Cal. Super. 2002) (Baseballs)
If both P and D have an equitable interest in the property, it must be sold and equally divided.
When a person completes a significant portion of the steps to achieve possession of an item, but is thwarted due to the unlawful conduct of another (not D), that person is entitled to a pre-possessory interest of the item.
Toward the end of the 2001 season, Barry Bonds was expected to break his own record for home runs, and fans began to congregate in the areas where he was most likely to hit a home run. In the stands that day were Alex Popov (plaintiff) and Patrick Hayashi (defendant). As the ball reached the stands, Popov was able to make contact with the ball through his glove. As the ball entered the glove, Popov was attacked by those surrounding him, dislodging the ball.
Hayashi was not involved in this attack but was able to pick up ball and put it in his pocket until he was escorted by security to a secure

ward damages accordingly.
Class Analysis:
“Rightful owner” isn’t broad enough. Previous owners? What is maid found it first and left it?
This goes against public policy, incentive to report.
Who gets what:
Finder is on property, with permission:
If found in private home, usually awarded to the homeowner (constructive possession?)
Found in place open to the public = courts split
Many courts distinguish between lost and mislaid property.
lost property = to the finder
mislaid property = owner of the premises, considering owner to
Prof has problem with this because it presupposes intent.
Trespassers lose
Personal property embedded in the soil
To the owner of the land, whether it was lost, mislaid, or abandonded.
Possible exception: treasure trove
Gold, silver, or money intentionally buried
Finders statutes:
Generally, require finder to report the find to polie and often require true owner to pay some value of property’s value as a reward.
After a reasonable time if its not claimed, it becomes the finders
Constructive possession: A legal theory used to extend possession to situations where a person does not have physical custody of an object.
Charrier v. Bell  (La. Ct. App. 1986) (guy who dug graves case)
Burying artifacts or other objects with the deceased is not an intention to relinquish ownership of those objects. Can’t going digging their graves without rightful owners permission.
F: P excavated a number of artifacts from a previously undiscovered ancient burial ground at the Trudeau Plantation in Louisiana. He had no relation or connection with the plantation other than his desire to excavate. P then attempted to sell the artifacts, but potential buyers were concerned that P was not their true owner. P filed suit against the owners of Plantation in order to get a declaratory judgment that he was the owner of the artifacts. The trial court held that the Tunica-Biloxi Indians were the lawful owners of the artifacts because they were descendants of the inhabitants of the Trudeau Plantation. P appealed, arguing that the Indians abandoned the artifacts when they moved off the plantation.
Holding and Reasoning (Ponder, J.)
When individuals bury objects with the deceased, their intentions are that those objects remain there forever, not that they become free for the taking. In such cases intent to relinquish possession is not equivalent to intent to relinquish ownership. Although the ancestors of the Tunica-Biloxi Indians buried artifacts with their deceased, it does not mean that they were relinquishing ownership rights of the artifacts.
Thus, simply finding the long lost artifacts of the Tunica-Biloxi Indians does not make Charrier the owner. For these reasons, the Tunica-Biloxi Indians are the legal owners of the excavated artifacts. Charrier is not entitled to declaratory relief and the judgment of the trial court is affirmed.