Ch 1: First Possession: Acquisition of Property by Discovery, Capture and Creation
A. Acquisition by Discovery
· Johnson v. M’Intosh
o Sup Ct U.S. (1823)
§ Issue
· Power of Indians to give & private individs to receive title to land
o A title that can be recognized and sustained in ct
§ Discovery Rule
· Discovery gave title to the govt by whose subjects, or by whose authority, it was made, against all other Euro govts which, title might be consummated by possession
· While the diff nations of Europe respected the right of the natives, as occupants, they asserted the ULTIMATE DOMINION, a power to grant the soil, while yet in possession of the natives
o These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy
§ Holding
· Indians lacked power to dispose of soil at own will (give away land in treaties) to whomever they pleased b/c DISC RULE gave discoverer’s the title
· Conquest gives a title which the courts of the conqueror cannot deny, whatever the private and speculative opinions of individs may be
· John Locke’s Labor Theory
o The labor of a man’s body & the work of his hands are his own property
§ When a man puts his labor into a property thus altering its natural condition à he has the right to the land
B. Acquisition by Capture
· Pierson v. Post
o Sup Ct. NY (1805)
§ Issue
· What acts amount to occupancy, applied to acquiring the right to wild animals
§ Rule
· Mere chase is insufficient to confer the rights of first possession
· Keeble v. Hickeringill
o Queens Bench (1707)
§ Rule
· Where a VIOLENT or MALICIOUS act is done to a man’s occupation, profession, or way of getting a lievelihood, there an action lies in all cases
o Every man that hath property may employ if for his pleasure & profit, as for alluring and procuring decoy ducks to come to his pond
§ ** if D would have set up his own duck pond & thus attracted P’s ducks à OK
· BUT
o b/c D maliciously by way of gunshots chased ducks off P’s property, thus depriving P of his livelihood à cause of action against D exists
Harold Demsetz, Towards a Theory of Property Rights
· The Concept and Role of Property Rights
o Property rights are an instrument of society and derive their significance from the fact that they help a man form those expectations which he can reasonably hold in his dealings with others
o Property rights convey the right to benefi
ch these two competing parties are endeavoring to make money, and treating it, therefore, as quasi-property for the purposes of their business b/c they are both selling it as such, INS’s conduct differs from the ordinary case of unfair competition in trade principally in this that, instead of selling its own goods as those of AP’s, it substitutes MISAPPROPRIATION in the place of MISREPRESENTATION, and sells complainant’s goods as its own
· Cheney Brothers v. Doris Silk Corp.
o U.S. Ct App 2nd Cir (1929)
§ Rule
· 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 them at their pleasure
§ Reasoning
· To exclude others from the enjoyment of a chattel is one thing
o To prevent any imitation of it, to set up a monopoly in the plan of its structure, gives the author a power over his fellows vastly greater, a power which the Constitution allows only Congress to create
