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Property I
University of Connecticut School of Law
Paul, Jeremy R.

I. From Possession to Property – How Social Facts Differ from Legal Rules

A. Wild Animals (ferae naturae)

Pierson, Interloper v. Post, Hunter (1805) – Π found and chased a fox as part of a hunt, when Δ stepped in, killed the fox and carried it away. The mere fact that one has spotted and chased an animal is not sufficient to constitute possession. Furthermore, one who mortally wounds an animal, so that capture is almost certain, is deemed to have possession. (If Post is investor, Pierson is competitor)
® “Mere pursuit” gives no legal right to an animal and Δ has the right to interfere.

B. Rule of Capture Analogies

Elliff v. Texon Drilling Co. (1948) – Texon was drilling for oil on land adjacent to the Elliff’s land. The Elliffs owned the surface of their land, as well as an interest in the oil and gas underlying it. Texon’s well blew out and caught fire and the Elliff’s well was destroyed as a result, as was the surface of their land, cattle and a great portion of the underlying mineral reservoir. The Elliffs’ brought suit for damages, claiming the blowout was caused by Texon’s negligent failure to use the proper drilling mud.
® The rule of capture does not insulate an adjacent land owner from damages caused by the wrongful drainage of gas and distillate from beneath the land of another.
o Rule of Capture – Minerals belong to the party that actually produces them, although part of the minerals, if they are oil or gas, may have migrated from adjoining lands.
o Absolute Rule – Encourages people to buy the land (invest) and start drilling (if others have already started drilling; it ties the oil to your land and whatever percentage of the well is beneath your land, you are guaranteed that much oil
· There is no liability for reasonable and legitimate drainage from the common pool, but does not give any owner the right to waste the gas; the destruction of Elliff’s gas was not a legitimate drainage or lawful appropriation of it.
o The Elliffs did not lose their right or title to the gas under the law of capture, so Texon had a CL duty to exercise due care and avoid injury to the property of others. Therefore, Texon was held liable.

C. Investors & Competitors

Feist Publications, Inc. v. Rural Telephone Service (1991) – Rural published a typical phone directory as a condition of its monopoly franchise, which included telephone service. The white pages listed the names alphabetically, with towns and numbers of Rural’s subscribers. Feist specialized in area-wide telephone directories, approached area companies to use their white page listings. Rural was the only one to refuse, but Feist used them w/o Rural’s consent. Rural sued for © infringement.
® For a work to be copyrightable, a work must be original and possess at least some minimal degree of creativity.
· Hard work is not enough to earn you a property right; there must be originality b/c © assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work (p. 1242); known as idea/expression or fact/expression dichotomy
· Is it true that just b/c something is original, it should be protected and when something is sweat of the brow, it shouldn’t be protected?
o Theory of human nature: people motivated by $ and not talent, need no protection b/c they’re going to go out and do it anyway; if you’re creative, you’re struggling with being creative (e.g. in your attic writing a novel), and you would only do it if you know at the end of if you will have protection for your work
o If discovery of facts were protected, there would be simultaneous discoveries and claims for ©
o By protecting ori

Statutory grant of limited monopoly

No natural/common law/statutory

Quid pro quo for creating

Monetary damages; wait for statute

· Hypo: You work for Arby’s and you’re looking to cut costs for $10 mill/year for siting and locations; you suggest that whenever Hardy opens a new restaurant, Arby’s will open one across the street and charge less; Hardy’s wants an injunction to stop Arby’s.
o Hardy’s would use INS v. AP for unfair competition.
o In INS it’s the actual news being taken, here it is their own product being sold, not the location; because of this difference, there should be a different result than INS.
§ In each case, the Π was engaged in sweat of the brow work; we must protect the Π from freeloaders; they actually are the same case.
o An injunction that stops a competitor is a risk to our system – love for property and free competition; when a Π wants a line drawn by stopping their competitor, they’re asking the courts to stop these basic principles (Brandeis)
§ Before a public official tells a private party to stop doing what they’re doing, much thought must be given to it; Brandeis would say go do what you want. (pro-competition)
o INS was not engaged in innocent, fun-loving competition; it was another form of stealing. (Paul thinks Arby’s case is the same as INS v. AP)