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Property I
University of Illinois School of Law
Smith, Bruce

Property Outline
Bruce Smith
Fall 2013
Acquisition by Capture I
Pierson v. Post
·         The ultimate case involving dominion of ownership of something that was not previously owned
·         Post was hunting a fox in pursuit with his hounds when Pierson killed and captured the fox despite knowing it was being pursued
·         Neither party owned the land fox was being hunted on
·         Post sued for trespass saying he acquired title to the fox when he began to hunt it
·         Pierson said Post did not have control over the fox and thus did not acquire a property interest
·         Does pursuit of a wild animal establish a property right to the animal
·         Mere pursuit does not establish property rights to a wild animal
Rules Applied
·         Court had relatively thin authority since it was at the beginning of U.S. legal tradition
·         Court looked to English cases
·         11 Mod. 74-130- established when an animal is on one’s property it is considered part of the soil
·         Also relied on treatises of writers all over the world from  many periods of time
o   Justinian’s Institutes (6th century AD), Fleata, Bracton – favor Pierson
§  Pursuit alone even with wounding does not establish ownership
§  Animal must actually be taken
o   Puffendorf and Bynkershoek – favor Pierson
§  No ownership right from mere pursuit
§  Puffendorf- mortally wounded animal cannot be captured by another when wounding party continues pursuit
o   Barbeyrac – favors Pierson
§  Bodily possession not required to obtain possession
§  Animal loses natural liberty then it is sufficiently possessed
§  Possibility of securing animals with nets and traps
§  Cited by dissent
Majority opinion (Tompkins)
·         Favors a clear and decisive rule – the party that holds the fox prevails
o   Clear cut rule beneficial to the courts
o   Preserves peace and order in society by making it clear who has ownership
o   Steadfast simple rule means need for courts is diminished
o   Allows for simple fact finding should a case get to court
Dissent (Livingston)
·         Case should not have been heard by court
·         Should have been decided through arbitration by taking into consideration the customs/norms of hunting
·         Norm was established an powerful and there was no reason for the court to depart from norm
·         Proximity test
o   Must be close/ close to capture
o   Physical proximity is easier to prove in court (lance/sword vs. darts/arrows)
o   Indicative of social status (must be rich if using large hounds- legal realist)
·         Death of fox is matter of public interest – decision should encourage people to hunt foxes
Additional Notes
·         Dissent – reward pursuer for his effort, majority – create a rule that is easy to administer
·         Real issue Anglo vs. Dutch natives vs. New Elite – who owned certain part of long island
Popov v. Hayashi (Barry Bonds Baseball Case)
·         Modern case from 2002 involving Barry Bond’s million-plus-dollar homerun baseball
·         Dispute between two fans, Pat Hayashi and Alex Popov both claiming the baseball
·         Popov said he caught ball in the outer webbing of his glove but fans began to fit over it and it was knocked loose and Hayashi emerged with the baseball and was escorted out of the stadium
·         Hayashi said he happened to spot the baseball on the ground and picked it up
·         If court awards ball to Hayashi might encourage dangerous and violent assaults on those who law first glove
·         If court awards to Popov the time frame of the assault would be moved up a few seconds while ball was still in flight
·         Forced sale of ball and split the proceeds
Analogy of Popov v. Hayashi to Pierson v. Post
·         Hayashi equates to poacher, Pierson and Popov to the hunter, Post
·         So under Pierson Hayashi should get the ball for the sake of preserving the peace
·         Also issue of whether Barry Bonds should get the baseball because he is the one that added value to it
Acquisition by Capture II
Ghen v. Rich
·         Brought about in a culture of whaling
·         Plaintiff Ghen killed a whale at sea leaving his identifying bomb-lance on whale
·         Custom and usage in whaling on Cape Cod says that one that lances whale owns it
·         If found on beach by finder, finder needs to notify the killer and receive finder’s fee
·         Whale found 17 miles away found by one named Ellis
·         Ellis sold whale at auction to defendant Rich who shipped off blubber
·         Ghen discovered what happened and initiated libel action against Rich for value of whale
·         1. Can court look to custom within an industry to determine rule regarding ownership?
·         2. Who is owner of a whale harpooned and then found on shore by another?
·         1. Yes, the court can look to custom within an industry to determine ownership
·         2. Party who harpoons whale is the owner even if it found on shore by another
Rules in favor of custom
·         Taber v. Jenny
o   Anchoring whale and marking required to establish ownership
·         Bartlet v. Budd
o   Waff that brands whale is sufficient to establish ownership
·         Swift v. Gifford
o   Rule effects few people whale goes to person who first affixes harpoon
·         Cases establish 3 different rules of ownership
o   Split ownership (killer and finder)
o   Iron holds the whale (kill harpoon whale)
o   Fast-fish loose fish (catch by line)
·         Court chooses split ownership due to biology (finbacks sink) and economic considerations (need both killer and finder to provide incentive for whale industry)
·         Norms in certain industries prevent lawsuits when there is comradory and close communities
·         Lawsuits caused by new comers to industry and frenzy in industry as whale oil prices go down
Keeble v. Hickeringill
·         Keeble place duck decoys and nets in a pond on his land and sold the captured ducks for profit
·         Hickeringill fired guns near Keeble’s land to frighten ducks away, not to capture them for himself
·         Keeble brought action of trespass
·         Keeble was awarded 20 pounds and Hickeringgill appealed
·         Can a party recover against another for maliciously interfering with his ability to use his land?
·         Yes, a party can recover against another for maliciously interfering with use of land
·         Keeble’s use of property to capture ducks was lawful
·         Everyman has the right to use land for pleasure or profit
·         Action lies in cases where defendant commits malicious acts interfering with another’s property
·         If Hickeringill had set up decoys on his own property to capture them no action would lie
·         Hickeringill won claim that he had right to use land as he sees fit when no malicious interference
Additional Notes
·         Business oriented theme in decision
·         Discourages un-neighborly b

h is no property law on this let legislature decide
·         There is nothing in this decision that says patient can’t enter in contract with research group
·         Precedent limited to California
Acquisition by Creation
Intellectual Property
·         Patent, trademark, copyright
·         Lacks a physical characteristic, it’s intangible
·         It is non-frivolous – does not diminish when consumed
·         Very expensive to create, very cheap to copy
International News Service v. Associated Press
·         Involves the question of unfair competition between two new collecting companies when one company reproduces the news of another as its own
·         Associated Press (plaintiffs) and International News Services (defendants) do news collecting
·         They distribute news to newspapers around the country
·         They are in direct competition with one-another
·         INS stopped from getting WWI dispatches
·         Started stealing early stories from AP member newspaper and bulletin boards
·         District court grants injunction
·         AP had no copyright
·         If INS can be restrained under theories of interference with AP’s property rights in news
·         If INS is engaging in unfair competition from taking news from bulletins of competitor’s papers and selling them to their own clients
·         Supreme court affirms injunction on INS
·         On grounds of unfair competition by making money off of AP’s quasi property interest in news
·         Court just made-up a principle and applied it retroactively
Possible Approaches
·         News once it is out is like a loose fish
o   Movers advantage: advantage of being first
§  Assumes being first is enough of an advantage
·         Equitable approach/ solution (this is the one the court choses
·         How should it be applied?
o   Very Narrowly
Cheney Bros v. Doris Silk Corp
·         Cheney Brothers accuses Doris silk of copying its design
·         Cheney manufactures silk and puts out new patterns every year
·         Most patterns have a life of only one season so no copyright or patents
·         Doris copied one of the most popular designs and sold it at a lower price
·         Trial court dismissed, Cheney Bros appealed
·         If Cheney Bros have property right sufficient to prevent another from copying chattel
·         Is copying product of another and selling it for cheaper inequitable as to warrant remedy
·         No. Since no statutory authority, patent, or copyright protected pattern Plaintiff’s property is limited to tangible object of invention
·         Relies on INS v. AP says it does not extend to the copying of all goods
Additional Notes
·         Learned Hand had a very difficult time with this decision