Select Page

Property I
University of Illinois School of Law
Smith, Bruce


First Possession (First in Time:*general rule, first to capture resources is entitled to them)

Acquisition by Capture

Capture of Wild Animals(ferae naturae): wild animals must be captured to be owned; mere chase/pursuit is not enough (Rule of Capture)

Pierson v. Post: Though Post was pursuing a fox, when Pierson shoots and kills it Pierson is entitled to fox. Capture is required. Custom amongst fox hunters that pursuit is sufficient capture was not upheld.

Why?Competition which promotes a social objective when animals were abundant and ease of administration.

*Must consider that now the rule of capture, which promotes pursuit and killing, has led to over-capture and the endangerment of species (the stakes of fox/duck/fish back in time were not high and deemed unworthy of judicial time in resolving conflicting claims).

Wounded or trapped Animals

If animal mortally wounded or trapped so that capture is practically certain it is treated as captured.

Competitor Interference ok IF he intends to capture the animal. BUT Interference by a person who does not want to capture the animal is not allowed

Why?Society wants the animal caught. Rule promotes killing not conservation (which may be a goal of society today); an instrumental law to a specific end. Also stops malicious interference with trade.

Keeble v. Hickeringill: Keeble has decoy pond to attract ducks. Hickeringill shoots off guns at pond to scare ducks away – Hickeringill is liable for damages bc he does not intend kill; but if he wanted to kill them over his land it is ok (constructive possessionowner of land has possession of animals over its land).

Exceptionto general rule, requiring actual physical possession, is if a CUSTOM thought more effective in killing animals exists.

Ghen v. Rich:custom among American whalers was to award the whale to the ship that first killed the whale – even though it sank and was discovered days later by another – as long as hunter do all that was possible to control the whale, possession was his.

Why?The custom advanced the killing of whales (Society’s objective at the time), the killer ship could be off looking for other whales without waiting around for the whale to rise.

Limitations to Acquisition by Capture

Congress has enacted laws to protect endangered species, and a state can regulate its natural resources under its police power.

Rights to Oil & Gas

Permits a landowner to extract all the oil and gas from a well bottomed under her land even if it drains from a neighbor’s land. *Capture must be non-negligent

Limited by enacted state regulations

Ad Coelum: principle by which a right extends vertically upwards from a property.


Riparian Rights:gives rights to owner of land adjacent to a stream or lake riparian rights in quantity, quality and velocity of water

English Rule: Absolute Ownership

American Rule: Reasonable Use Doctrine:reasonable uses on her own land in unlimited quantities (rule of capture), unless neighbors are harmed.

Surface Water

Prior Appropriation: person who first appropriates/captures water and puts it to reasonable and beneficial use has a right superior to later appropriators.

Why? Developed as a consequence of the scarcity of water in the arid West.

Natural Flow Doctrine:owner can use water but must return it to the stream in its natural condition; entitled to natural flow of water, without material diminution in quality or quantity.

Acquisition by Discovery

Wild Animals

Wild animals with animus revertendi (habit of return)

Captured animals that develop a habit of returning to the captor’s property continue to belong to the captor as they roam at large

Why?Encourage domestication of animals and reward investment/effort of domesticator.

Criticism:problem of uncertainty; how is a hunter supposed to know that an apparent wild animal is domesticated? Option to require tagging animal in some obvious way.

Pregnancy stemming from animals of separate owners

Owner of mother/female is owner (rule of increase: similar to animal kingdom; mother cares for young and gains possession; promotes certainty by genetic possession.

Escaped wild animals with no habit of return

Original captor loses possession unless a second captor has notice that the animal has escaped from someone with prior notice. Notice can also be found if animal is so rare to area (i.e. elephant)

Native American Land:Discovery of land, occupied by Native Americans, gave title to European nations which passed title in prior possession of America. Title by conquest/acquisition.

Johnson v. M’Intosh: title by conquest, but Native Americans have right of occupancy.

Right of Acquisition: discovery gave title to the gov by whose subjects, or by whose authority, it was made, against all other Euro governments.

Law of Accession:one person adds to the property of another, to what extents do they own the property now?

At sea law doctrine: doctrine limits a nation’s right to the ocean to a narrow belt of about 3 miles surrounding its coastline, the rest of the seas are free to all nations. Formalized views that the seas were such a vast resource that all nations could use them as they wished.

Property in One’s Person (Locke)

Rights in Body Products – can they be owned? **should they be saleable?

Surrogate/sperm donation/egg donation/organs

Transferability in the market is NOT an essential characteristic of property; courts concerned about making body parts property which could be sold.

Moore v. Regents of the University of California: a man does not have property rights in his spleen following its removal from his body by doctors who made it into a patented cell line following its removal from his body by doctors who made it into a patented cell line of great commercial value. The patient only had the right to sue for failure to disclose research and economic intent/interest; could not claim conversion(wrongful interference with one’s ownership/possession of personal property/tort)


Anti-commons:individuals could exclude others from property making it too difficult for property to be developed fruitfully

Disproportionate impact on poor people

Prohibit commoditizing/selling body parts

Acquisition by Creation/IP Law

Why?Purpose of recognizing property by creation is to reward labor

Statutes protect copyright, trademark and patent statutes; otherwise uncertain

Copyright laws include a fair use exceptionand a right to parody. A person cannot copyright an idea, but CAN copyright an expression of it.

No protection against imitation- CL allows some limited copying and imitation, with exceptions to avoid monopolies and encourage competition.

Cheney Brothers v. Doris Silk Corp:CL avoids monopoly and encourages competition by allowing copying and imitation of ideas (fabrics/designs), as opposed to their expression, because there is a greater public good of commerce

Smith v. Chanel:a perfume co. was not entitled to a monopol

ivid and concrete to the donor the significance of the act performed (Livery of Seisin)

Constructive Delivery:IF actual delivery of the gift is impracticable, constructive delivery by handing over the means of obtaining possession and control (usually a key), or in some other way relinquishing control over the property.

Symbolic Delivery:IF actual manual delivery is impracticable, donor can hand some object symbolic of the thing.

Intervivos Gift:when people are living (irrevocable)

Gruen v. Gruen:whether maker intended the gift to have no effect until after the maker’s death, or whether he intended the gift to have no effect until after the maker’s death, or whether he intended it to transfer some present interest; effects whether a life estate.

Testamentary Gift:when people have died

Causa Mortis Gift:death bed gift, substitutes for will

Newman v. Bost:Furniture and life insurance policy in furniture cannot be given to employee/fiancé because intent was not clear to include the insurance policy. Required clear donative intent.

Acquisition by Adverse Possession:(if landowner does not bring ejectment action of adverse possessor w/in statutory period, the owner is barred from ejectment action AND transfers interest in land to adverse possessor – adverse possessor does not have recorded title UNLESS a quite title action is made.)

Why?Protects title, bars state claims, rewards productive use of land(economic), and gives effect to expectations (psychologically a basic policy of property law)

“If a man neglects to enforce his rights, he cannot complain if, after a while, the law follows his example”

Requirements of Adverse Possession:(1) Entry, (2) Open & Notorious, (3) Continuous Use, (4) Adverse & Under a Claim of Right

(1) Entry

Triggers ability for owner to get them out/cause of action. There must be actual entry.

If entry is on part of the land, the possessor is in constructive adverse possession

(2) Open & Notorious Possession

Possessor must occupy the property in an open, notorious, and visible manner so as to give reasonable notice to the owner that the possessor is claiming dominion adverse to the owner’s rights.

(3) Continuous use for the statutory period (*tripper on exams)

Requires the degree of occupancy and use that the average owner would make of the property.

Seasonal Use -if seasonal possession is how the average owner would use the property (use of summer home during summer), it is continuous.

Howard v. Kunto(Seasonal use is continuous if degree of use by average owner is seasonal; tacking IF in privity of estate is continuous use)

Abandonment -if possessor intentionally* relinquishes the property for any period of time, continuity is broken.