Select Page

Property I
University of Dayton School of Law
Reilly, Tracy

Property Outline Fall 2012 Reily

I Introduction: The First Possession Rule

A Property Policies

1 Behavior Prevention

i Certainty

ii Preservation of Peace

2 Behavior Facilitation

i Reward Labor (Locke)

ii Pro-Market

B Acquisition by Discovery

1 Discovery acquires title (legal claim) over land – absolute ownership – dominion

i Dominion is not just exclusionary – it also allows control of one’s possessions – power to dispose of it

2 First in time doctrine: the person whose interest is first delivered prevails over anyone who acquires an interest later

i Reduces Conflicts

ii Rooted in our nature as living organisms (Pipes)

iii Incentivizes Productivity, economic efficiency, an activity

iv Marxist critique – ideological – benefits the powerful – unjust and arbitrary

3 Johnson v. M’Intosh (Should the government recognize Indian title to land when the government also has title to land?)

i Holding: Title is established by the first person to possess the now legally claimed land.

ii Conquest gives title which the courts of the conqueror cannot deny

iii Chain of title – GB relinquished claim to the proprietary and territorial rights to the US and states ceded their claims to title through the US Constitution

iv Discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest

v An absolute title to land cannot exist at the same time in different persons or in different governments. An absolute must be an exclusive title or at least a title which excludes all others not compatible with it.

vi Property rights are defined by the society in which they are at issue

vii Discovery Doctrine – gives title (legal claim) to the land

viii Rose – Indians occupied but did not possess the land by altering it – the doctrine of first possession reflects the attitude that human beings are outsiders to nature

C Acquisition by Capture

1 Pierson v. Post (Post was suing Pierson for killing the fox he was pursuing)

i Holding: Mere pursuit of a wild animal gave Post no right to the fox.

ii Occupancy requires actual physical possession of the animal

a Policy reasons:

1 Certainty

2 Preservation of Peace (prevents conflict)

3 Objective fact

iii Rule of capture – possession requires either physical possession or mortally wounding

iv Lockean perspective – Physical possession (or mortally wounding) the animal mixes the labor sufficiently to create a property right. Pursuit doesn’t mix with labor enough.

v Dissent (Livingston): (1) It was better to adopt the custom of sportsmen to determine ownership of the fox (2) recognition of property rights in wild animals when there is a reasonable likelihood of capture would conduce more rapid extermination of foxes – promote economic activity

vi Ratione solie – a justification for assigning property rights to landowners over resources found on their own land

2 Ghen v. Rich (Whaling case)

i Rejection of the rule of capture in favor of custom

ii Holding: When an industry represents a reasonable act of first possession, property claims based on this custom will be upheld.

iii Policy Reasons: custom is certain and preserves peace – promotes the policy goals

iv Marking may justify a property claim of wild animals if it follows the same principle of first possession

v Bartlett v. Budd

a The act of killing and attaching a flag to the whale was sufficient to establish first possession even if the whale is later found by a third party without the flag attached

3 Keeble v. Hickerngill (P had a decoy pond to capture ducks for profit. D fired guns near P’s land to drive away ducks)

i Holding: D cannot maliciously interfere with P’s commercial use of property.

ii Rule: A person will be liable for any malicious interference with another person’s commercial use of property

iii Policy Reasons: rewards labor, pro-market, and preservation of the peace

a Individuals should reap the fruits of their labor – increase productivity – support for capitalism

iv Keeble had “constructive possession” of the ducks because they were on his property

4 Fugitive Resources

i Hammonds v. Central Kentucky Natural Gas Co.

a The nature of oil and gas is fugitive and migratory and can escape without the violation of its owner and is analogous to wild animals – status as common property

D Property in One’s Person

1 Moore v. Regents of the University of California (D uses P’s discarded cells for profitable purposes, P sues for conversion)

i Holding: A patient does not have a property interest in excised body parts and thus cannot sue for conversion for the use of these body parts without the patient’s consent

ii P did not expect to maintain a property interest over his cells – no property interest, no cause of action

iii To establish conversion – the P must establish an actual interference with his ownership or right possession – where plaintiff neither has title to the property alleged to have been converted, nor possession thereof, he cannot maintain an action for conversion

iv Conversion is a strict liability tort – if P has a property interest – anyone who handled the cells is liable – creates uncertainty

v A patient may sue for a physician’s breach of a (1) disclosure obligations and (2) fiduciary duties in the use of the patient’s tissue without consent

vi Pannelli – Property requires the right to exclude (false dichotomy – property rights can be split up)

vii Dissent (Mosk): we limit and restrict property in a number of ways – you can’t sell an organ but you can still gift it – organs are inalienable – but you can still transfer them.

a Bundle of Sticks view – losing one stick doesn’t eliminate the whole bundle

b Statutes treat organs as property in other cases – their use should receive compensation

c Patients should have the right to both refuse consent and to grant it

viii Policy Reasons:

a Allowing conversion creates uncertainty

b Encourages medical innovation

c Better solved through legislative action

d Not necessary to protect patient rights

ix Accession v. Exception (p84 f.48)

a Accession – owner of property has dominion over what occurs on that property

b Exception – If the third party’s labor accounts for substantially all the value of the final product, reward trumps certainty

2 Radin

i Property is more than a commodity on the market

ii The body is personal property and constitutive of one’s personhood

iii Commoditization and alienability of organs lead to anti-personhood

iv Marxist – market inalienability leads to human alienation

3 Hirschmann

i Commerce promotes peace and attaches men to one another through mutual utility

ii Market economy creates a more polished human type – more honest, reliable, orderly, disciplined

E Conceptualizing Property

1 Rose – pos

to recover the item

ii Finder of Abandoned Property

a Property intentionally discarded by its true owner with no intent to retrieve it

b Rule: Property goes to the finder

iii State Statutes

a In NY, all lost, mislaid, and abandoned property and treasure trove will be treated as lost property

2 Armory v. Delamirie (P “found” a jewel in someone’s home and tried to cash it in and D’s employee took it)

i Holding: The finder prevails against all but the rightful owner

a Prevents people from taking the law into their own hands

b First possession = objective fact

c Finder only has relative title

ii Trover – action for monetary damages in equal value of the chattel

iii Replevin – Action for return of chattel

3 McAvoy v. Medina (A pocket book accidentally left by D’s customer was recovered by P and given back to D on the condition that the rightful owner recovers it)

i Holding: The finder of misplaced chattels on another’s property does not have the right to possess the chattels.

a Item was misplaced, not lost

b It was the duty of the D to use reasonable care for the safe keeping of the object until the owner should call for it

ii Policy reason: certainty – facilitate the return to the person who lost property.

B Acquisition by Adverse Possession

1 Adverse Possession Doctrine: If, within a specified number of years, the legal owner of property (chattels or land) does not bring a legal action to eject a possessor who claims adversely to the owner, then the owner is barred from bringing an ejectment action. (standards based, not rule)

i Two Broad Requirements:

a Expiration of the relevant statute of limitations

b Adverse possession during the limitations period

ii Four elements of Adverse Possession

a Actual entry giving exclusive possession

1 Rule: Possession must be of a character that the community would reasonably regard the adverse possessor as the true owner

2 From Lutz:

i Cultivated or improved it

ii Enclosed it

iii Used it for harvesting materials

3 From Ewing:

i If the adverse possessor has done something with the land, such as the factor identified in the statute in Lutz, and filed trespass lawsuits against third parties, then it is sufficient to qualify as actual entry with exclusive possession

4 Serves 2 functions:

i Triggers claim by title owner to bring trespass and ejectment actions

a Starts clock on statute of limitations

ii Establishes basis of adverse possessor’s claim to the land

a The adverse possessor is acting as the true land owner

The Adverse possessor’s title to the land, once established, relates back to the moment the action accrued, i.e., the beginning of the trespass that ultimately lead to full-blown