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Property I
University of Connecticut School of Law
Leshy, John

Professor Leshy
 
Introduction
I. General
A. Property:
i. Relationships between people with respect to things.
B. Possession vs. title
i. Possession: usually dominion and control
ii. Title: ownership
a. Common law favors either or results, not shared interest.
C. Bundle of rights: Property is a bundle of rights, not necessarily all present: right to possess it, use it, exclude others from using it (most fundamental), transfer by gift or by sale.
II. First Possession: Acquisition by Discovery, Capture, Creation  
A. Acquisition by Discovery 
i. General rule: The first in time to discover land in a new world has exclusive property rights, even as to the native people. This was agreed upon by European powers.
ii. Johnson v. M’Intosh (p 3)
Facts:
Johnson purchased it from the Indian tribes on the land (1773 &1775), M’Intosh got it later from the US gov’t. Johnson sued for ejectment.
Issue:
Can Native Americans convey good title to lands they occupy and that are claimed by the US Govt?
Analysis:
Have to trace the “chain of title.” Mere occupation may not give you legal title. Only a state can discover, and the first discoverer has exclusive property rights (Britain) – before discovered, there was no title. Native Am only had right of occupation. Britain gave it to US, who gave it to M’Intosh. Native Am had no title to transfer (they in some sense conveyed it already to Britain).
Concl:
Only first in time to “discover” real property has power to transfer title. Possession ≠ title. Native Americans couldn’t convey to Johnson.
a. Note: The law has to reflect some notion of reality and of history, title is European created, this is not about logic but experience – the logical construct of the law is imposed on the history. If court had gone other way, would have undermined all claims of title given by US govt.
iii. Labor Theory of Value (Locke): Accession
a. General rule: Want to recognize the value of the labor people invest in property. We want to encourage people to invest productive labor.
b. Law of accession comes into play when one person adds to the property of another. What happens when someone uses someone else’s property to make something? Who owns the product? 
1. Traditional rule: person who owned original property is the owner, but if the improver changed it so much that it is a completely different thing, it belongs to the improver (grapes into wine).
2. Modern rule: disproportionate value – if value of improvement is disproportionate to the value of the materials, improver gets it. Usu has to be done in good faith.
c. This theory applied to Johnson v. M’Intosh: Native Americans didn’t put an adequate amount of labor into the land to perfect a “property” interest in the soil.
1. Monopsonist – sole buyer. Govt was sole buyer, which reduced the cost they had to pay.
d. Property confers and rests on power. Owners have a form of sovereignty over others because the sovereign state stands behind the owner’s assertion of right.
1. Critical Legal Studies – reject the notion that the law is neutral and apolitical.
2. Critical Race Theory – develop a jurisprudence that takes racism into account.
 
B. Acquisition by Capture
i. General rule: Property is acquired by actual capture. Mere pursuit is not enough.
ii. Pierson v. Post (p 19)
Facts:
Post pursues the fox on un-owned land, Pierson killed the fox (in sight of Post) and took it away.
Issue:
Does Post own the fox because he was in pursuit, or does Pierson own it bec

n’t follow ratione soli. People have right to keep hunters off their property under a tort right (trespass) and not as a property right over the animals.
1. Could you be guilty of trespass and own the animal? Probably yes, although then you are encouraging trespass.
iv. Custom and usage rule – court makes a decision about ownership based on the custom of the industry and whether a ruling would impair industry.
v. Ghen v. Rich (p 26)
Facts:
Ghen is a whaler. He struck a finback whale that floated to the shore. It was found by Ellis, who, against Provincetown finback whaling custom, auctioned it to Rich, who sold the oil. P-town custom – whaler shoots whale, which sinks to the bottom and surfaces days later somewhere along the shore. Finder tells whaler (lance has identifier on it) and gets a finder fee. Ghen sued for price of oil and argued that it was his property.
Issue:
Who owns the whale, the whaler who killed it or the finder?
Analysis:
Custom for these whales was different from that of other whales. The rule is that a whale killed (and attached to the boat by rope) is the property of the boat owner. This whale sinks to the bottom and later surfaces days later.
Policy:
If court doesn’t protect the customs of the whaling community in this case, whaling will cease.
Rule:
Custom or usage rule: Court makes a decision based on the custom of the industry.