Professor Appel
Property Fall 2011
Dukeminier 7th Edition
1) Introduction to an economic approach to law generally and property law specifically. (39-55)
a) Institution of property (private, communal, state owned)
i) There is no first-best form of ownership or property rights for all resources.
(1) All come with advantages and disadvantages.
(2) Some aspects of ownership are better suited to some situations (resource types, numbers of owners, etc.) than others.
ii) “It’s my property, I can do what I want with it.”
(1) Who said its your property? (at some point, the gov’t).
(2) No you cant, and you never could.
2) First Possession: Acquisition of Property by Discovery, Capture and Creation. This unit concerns the acquisition of property from a “state of nature” or where the prior owner doesn’t exist, isn’t around, is ignored by the law, or doesn’t care that the transfer is occurring.
a) Acquisition by Discovery (1-18)- the sighting or finding of hitherto unknown or uncharted territory; it is frequently accompanied by a landing and the symbolic taking of possession. Acts that give rise to an inchoate title that must (on one view) subsequently be perfected, within a reasonable time, by settling in and making an effective occupation.
i) Johnson v. M’Intosh
(1) Positive Law- Principles adopted from custom our government has adopted for use in a particular case.
(2) Common Law Rule: First in time, First in right.
(3) Right to possess can be extinguished through purchase or by conquest
(a) If neither conquest nor purchase exists, aboriginal title still exists.
(b) Conquest- the taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror.
b) Acquisition by Capture (18-35)-the rule of capture follows directly from the powerful principle of first in time and finds support in Locke’s theory of labor.
i) Pierson v. Post- Mere pursuit does not equal possession by occupancy.
(1) Animus Revertendi- “The spirit of return”
(2) Ferae Naturae- “Free natured”. Property in such wild animals is acquired by occupancy only.
(3) Dissent argued that custom among hunters from the area should have been considered and followed by the court, which was that a beast wounded and pursued belongs to the one who first wounded it.
(4) Here occupancy meant physical control, pursuit was not enough.
(a) Had fox been wounded or ensnared (as a whale would be below), the decision would have been the opposite.
ii) Ghen v. Rich- Custom of local whalers (iron holds the whale) taken, as well as custom from history and literature, and applied in court.
(1) Hazards of applying custom as law:
(a) Custom may not be known to everyone.
(b) Custom may not be accepted (liked) by everyone
(c) Custom may not yield the ends that the court says it will
(d) Court may not get the custom right.
(2) In this case, since the only type of occupancy or appropriation available because of the nature of the work was that the custom required (a marked bomb lance).
(a) The fisherman had done all that was possible to make the animal its own, and that is sufficient.
iii) Keeble v Hickeringill
(1) Here the action lied in tort, not in property, as the act of Hickeringill affected Keeble’s trade. The property cause of action had no anchor in law.
(2) Ratione soli- refers to the conventional view that an owner of land has possession-constructive possession that is- of wild animals on the owner’s land; in other words, landowners are regarded as the prior possessors of any animals ferae naturae on their land until the animals take off.
c) Problems of fugitive resources generally and water specifically (36-39)
i) Oil and gas- Rule of capture. If the owner of land digs a well that taps the oil or gas under your land, that oil and gas produced from the well is his.
ii) Water-
(1) Groundwater-Common Law Rule: Rule of capture and similar to above. In some western states some ground waters are allocated according to first in time, called prior appropriation.
(a) Today groundwater extraction is commonly governed by legislative and administrative programs.
(2) Surface Waters
(a) In some western states the rule is prior appropriation, the principle of which is that the person who first appropriates (captures) water and puts it to reasonable and beneficial use has a right superior to later appropriators.
(b) In eastern states each owner of land along a water source (riparian land) has the right to use the water subject to the rights of other riparians.
(i) Can be loosely linked to first in time because the claims of riparians rest on their underlying holdings of riparian land, and the land itself was originally acquired by first possession.
(3) Pyle v. Gilbert
(a) Rule: For one to have water rights, their land need not be on the water body. (Hendricks).
(i) The right is based on proximity to the source.
(ii) Not subject to abandonment.
(b) May be subject to contextual limitations (reasonable use)
(c) Generally not transferrable- First in right not necessarily first to subsequent owners.
d) Acquisition by “creation” (56-65)
i) Property in One’s ideas and Expressions: General Principles of Intellectual Property.
(1) Promote progress of science and useful arts-securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
(a) We want to give people some incentive from the things they create, we just don’t want to give so much protection that it stymies progress and further creation.
(2) The rules of IP are much more exclusive and delimited than general property rights. Attempt is to balance rights
ly will choose an honest subsequent possessor to a prior wrongful possessor.
(b) Damages: The wrongdoer, having once paid full damages to the bailee, has an answer to any action by the bailor.
ii) Hannah v. Peel-Soldier attempting to recover broach found in house occupied by troops. Peel, owner of the house sold the broach and now Hannah is suing as its finder/owner.
(1) Issue is whether the owner locus in quo has rights over the finder?
(a) Cannot simply make rule that gives finder rights every time, what would stop people from just coming onto your property and saying “look what I found!”
(b) If true owner was to go look for it, wouldn’t they look where they left it?
(i) These are just a few reasons a white line or black letter rule would not work.
(c) Cited precedent: law of principle and agent discussed as well (respondeat superior)
(i) Shop worker finding money and turning into owner who did not give money back unclaimed. Distinguished as shop was open to public, not a private dwelling.
(ii) Pool cleaners find ring. Here finder was employee, distinguished b/c while Peel was Major and Hannah was sergeant, Hannah did not work for Peel. Also distinguished b/c ring was at the bottom under muck, broach was accessible.
(iii) Men with mineral rights found pre-historic boat. Distinguished b/c boat owner not coming back. Similar b/c while prop in cite was conscripted and broach may not have been attached to the property, but Peel still owned it.
(2) Holding was that the item was lost in the ordinary sense of the word, when Hannah found it, it became his.
(a) Despite analysis, court comes up with its own rule.
(b) Other factors probably played into courts decision: Hannah’s honesty and attempt to find the true owner, the police messed up, Hannah was likely injured.
(c) Had Peel occupied the house, the decision may have been different.
(i) Parker v. British Airways: the occupier of a house will almost invariable possess any lost article on the premises.
iii) McAvoy v. Medina-finder of wallet in barber shop gives to owner of shop to find true owner
(1) Here the property is considered mislaid or misplaced. (Which goes to owner of prop)
(2) Misplaced goods yet to be defined, no action in lost property. (If lost or abandoned, usually finder can keep).
