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Property I
University of Denver School of Law
Cheever, Federico



Spring 2014

v (P) 3 Goals of Property Law

Ø 1. Certainty

Ø 2. Fairness

Ø 3. Wealth Maximization

v Remedies for wrongful deprivation of property:

Ø Conversion: An action that forces breachers or tortfeasors to purchase at full price goods that they have damaged for misdelivered.

Ø Replevin: An action to recover the actual property or chattel.

Ø Trespass: An action that seeks to recover monetary damages incurred by reason of the lack of possession.

Ø Trover: An action to recover the value of the property or chattel in addition to damages for lack of possession.

v Acquisition by Conquest:

Ø The taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror.

v Acquisition by Discovery:

Ø The sighting or finding of hitherto unknown or uncharted territory. Followed by settling in and making an effective occupation.

Ø Person who discovers real or personal has the best title to it (Johnson).

v Occupancy Theory and the Principle of First in Time:

Ø Notion that being there first justifies ownership rights.

v Types of Property.

Ø Unalienable Property:

§ Stuff you own but cannot transfer ex/ prescription drugs

Ø Partially-Alienable Property:

§ Property you own but cannot sell ex/ wildlife

Ø Intangible Property:

§ Property that you can’t touch. i.e. a movie

v Rule of Increase:

Ø Owner of a female animal has exclusive property rights to the offspring.

v Doctrine of Relative Title:

Ø Courts do not decide who has perfect rights to property. They decide who has better rights to property.

Ø We will not allow subsequent claimant to use prior defects in ownership as a defense to claimants with better rights.

Ø Liability rules are different than property rules. It’s typically winner-takes-all in property cases.

v Johnson v. M’Intosh (1823) p.1 [Acquisition by Conquest/Discovery]

Ø Facts:

§ Plaintiffs (Piankeshaw Indians) sued Defendant (owner of a land grant) for their ejection from the land. Chiefs of the tribe had sold the land.

Ø Issue:

§ Who has the authority to claim ownership of the land? – U.S. government

Ø Reasoning:

§ “They [Indians] were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion, but their right to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.” P.5

§ “All our institutions recognize the absolute title of the crown, subject only to the Indian right of occupancy, and recognize the absolute title of the crown to extinguish that right.” P.8

Ø Class Notes on Johnson

§ Title might be consummated by possession.

§ Purpose was to keep Indian tribes from selling land to other European powers.

v Acquisition by Capture

Ø Rule of Capture quintessentially applies to commercial fishing (modern application).

Ø If you have notice of a prior claim you cannot exercise the right of capture.

Ø Custom tends to control when disputing parties engage in the same business. (i.e. Whaling in Ghen v. Rich).

v Ownership of Wild Animals

Ø General rule: no one owns wild animals in their natural habitat.

Ø Capture Rule: property rights in wild animals are obtained through physical possession. The first person to capture or kill a wild animal acquires title to it. (Pierson)

§ Default rule (when there is no other rule to turn to).

§ (P) The purpose of the capture rule is to incentivize capture of wild animals. If titles could be obtained merely through pursuit hunters would not know what animals were already owned- this would disincentivize hunting.

Ø Constructive Possession: landowners possessed the wild animals on their property but did not acquire title to them until the animal was captured. Did not apply in American courts; was viewed as undemocratic.

§ Key- exercise of dominion and control over the animal.

Ø Animus Revertendi [On-A-Mus River-Tend-E] (the intention to return): a captured animal that has the habit or returning to its captor. The captor has possession and ownership of the animal if its hunter has reason to know that the animal is tame.

Ø Property owners may exclude people from hunting on their property.

Ø No one (not even the state) owns wild animals.

Ø Exotic animals are presumed owned.

v Pierson v. Post (1805) p.18 [Capture rule]

Ø Facts:

§ Post was chasing a fox on unpossessed land. Pierson, knowing Post was hunting the fox, killed it to prevent Post from catching the animal.

Ø Reasoning:

§ “The foregoing authorities are decisive to show that mere pursuit gave Post no legal right to the fox, but that he became the property of Pierson, who intercepted and killed him.” P.19 (Application of the Capture Rule)

§ “If the first seeing, starting, or pursuing such animals, without having so wounded, circumvented or ensared them, so as to deprive them or their natural liberty, and subject them to the control of their pursuer, should afford the basis of actions against others for intercepting and killing them, it would prove a fertile source of quarrels and litigation.” P.20

Ø Justice Livingston’s Dissent

§ “Property in animals ferae naturae may be acquired without bodily touch or manucaption, provided the pursuer be within reach, or have a reasonable prospect of taking, what he has thus discovered with an intention of converting to his own use.” P.22

§ Custom of the hunter should rule in this case.

§ 3 key arguments

· to the arbitration of sportsmen. à Certainty.

· a saucy intruder, who had not shared in the honours and labours of the chase. à Fairness.

· the interest of our husbandmen. à Wealth Maximization.

v Ghen v. Rich (1881) p.26 [Custom & the Rule of Capture]

Ø Facts:

§ Libellant [Plaintiff in admiralty cases] killed a fin-back whale with a bomb-lance that bear its companie’s mark. The whale sank and washed ashore three days later. Respondent discovered and sold the whale.

Ø Reasoning:

§ “It [custom of ownership of killed fin-back whales] requires in the first taker the only act of appropriation that is possible in the nature of the case.” “If the fisherman does all that is possible to do to make the animal his own [fin-back whales are too fast to be harpooned], that would seem to

Ø Facts:

§ Plaintiff manufactures silks and puts out many new patterns each season, only 1/5th of which ever sell well. It would be impossible for the plaintiff to copyright or patent its silks. Defendant copied one of the popular designs and undercut the Plaintiff’s price.

Ø Reasoning:

§ Court declined to create a CL patent or copyright for the designs b/c it would prevent any imitation of it and create a monopoly over an idea. This would go beyond the right to merely excluding others from the enjoyment of a chattel.

§ In the absence of some recognized right at common law, or under the statutes…a man’s property is limited to the chattels which embody his invention. Others may imitate these at their pleasure.

v Smith v. Chanel, Inc. (1968) p.62 [(P) for imitation]

Ø Facts:

§ Perfume company claimed in its ads that its product was the equivalent of the more expensive Chanel No. 5.

Ø Reasoning:

§ “A large expenditure of money does not itself create legally protectable rights.” P.62

§ “By taking this ‘free ride,’ the copyist, albeit unintentionally, serves an important public interest by offering comparable goods at lower prices.” P.62

v A&M Records v. Napster (2001) Handout. [Fair Use Exception].

Ø Facts:

§ A&M sued Napster for copyright infringement.

§ Napster facilitated the peer-to-peer transfer (and research) of MP3 files.

Ø Reasoning:

§ In determining fair use the courts consider: 1) the purpose and character of the use; 2) the nature of the copyrighted work; 3) the “amount and substantiality of the portion used” in relation to the work as a whole.

§ Napster’s arguments for “fair use:”

· Sampling: where users make temporary copies of a work before purchasing.

¨ The samples Napster provides are full, free and permanent. They harm the audio CD market and the developing digital download market.

· Space-shifting: where users access a sound recording through the Napster system that they already own in audio CD format.

¨ By posting the song to Napster’s library it becomes available to millions of users.

Ø Class Discussion:

§ Napster was not committing Copyright infringement. They were held vicariously liable for Copyright infringement that they facilitated.

v White v. Samsung Electronics America, Inc. (1993) p.66 [Right of Publicity]

Justice Kozinski’s Dissent

Ø Facts:

§ Celebrity Vanna White sued Samsung for an ad that featured a robot in a wig and dress, standing next to the Wheel of Fortune set. Court of Appeals reversed Dist. Ct., ruling that Samsung violated the Lanham Act, a federal statute concerned with false representations in advertising.