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Property I
University of Illinois School of Law
Smith, Bruce

—PROPERTY—

I. First Possession: Acquisition by Discovery, Capture, and Creation

1. Acquisition by Discovery
a. Generally
1.Discovery: the sighting or “finding” of previously unknown or uncharted territory
2.Conquest: the taking of possession of enemy territory through force, follow by former annexation of the defeated territory by the conqueror
3.Principle of First in Time: first person to take possession of an unknown thing owns it (so, prior possessor prevails over subsequent possessors)
4.Labor theory and John Locke: A man’s labor is his property, and when he removes something out of its natural state and has mixes enough of his labor with it, it becomes his. (But then how broad is the right that one establishes by mixing one’s labor with something else?)
b. Discovery of America
1.The United States traces its title all the way back to the discovery of America by the Europeans
2.Native Americans were not seen as having prior possession, moved around and hunted (Locke would have said they didn’t mix enough labor with the land)
3.Conquest (by Europeans) gives the conquerors title [Johnson v. M’Intosh, 1823] 4.Indian Title: right to occupy or possess, no title/ownership (subject to the control of Congress)
5.First link in chain of title—most landowners trace their title back to grants (or patents) from the United States. The US traces its title back to discovery.

2. Acquisition by Capture—first person to take possession of a thing owns it (first in time)

a. Capture of Wild Animals (ferae naturae)

1.Capture is required, pursuit is not enough [Pierson v. Post, 1805]—consider: (1) shows advantages of certainty in the property system (2) Dissent: pursued with beagles only, you need to capture it; pursued by large dogs/hounds, just need to be in pursuit (should this have been left to the sportsmen to decide?—the court ignores local custom)
a. Competition Rationale—society does not reward the pursuer, only the captor
b. Easy Rule—capture is bright-line

2. Custom that advances killing (or societal objective) may change capture rule [Ghen v. Rich, 1881] (Libel to recover value of whale: Among whalers, custom to award the whale to ship that first killed the whale—gave possession. Consider: “fast-fish/loose fish fastened by line to the ship; iron holds the whale; value split between harpooner and finder)
a. Reasonable custom
b. Limited application
c. In effect for years
d. Works well in practice
i. When should custom matter, when should it not? (Consider over-whaling)

3. Malicious Interference by non-hunter not allowed [Keeble v. Hickeringill, 1707] (Keeble put out decoys on his pond to attract ducks. Hickeringill shoots off guns to scare ducks away. H liable for damages. Hickeringill would not be liable if he shoots duck flying over his land to Keeble’s pond.)
a. Consider ratione soli: owner of the land has constructive possession of wild animals on the owner’s land
b. Difference between scaring students away from an “antient school,” and luring the children to a new school.
c. We want ducks c

wn different properties over a common pool.
B can extract all he wants.
b. If B drill a well diagonally under A’s property
Bottoming diagonally under someone’s else’s land is illegal
It’s a trespass. Why? Certainty is lost (drilling straight down is straightforward),
c. If A re-injects gas under her land, but bottoms out under B.
No trespass (don’t hold people liable for any escape of the fugitive resource)
d. If A re-injects, can B tap?
No. It violate A’s investment/expectation

c. Streams and Lakes
1.Reasonable Use (Majority):
a. Wasteful uses of water that harm neighbors are unlawful
b. Drawbacks: no account of relative productivity of the land the water services; rationed poorly when stream levels are low
2.Prior Appropriation (i.e. first in time) (surface water in the western States):
a. The person who first appropriates (captures) water and puts it to reasonable and beneficial use has a right superior to later appropriators.
b. Drawbacks: Encourage premature development and excessive diversion, also rations poorly
3.English Rule: groundwater governed by absolute ownership; don’t need to worry about neighbors
Note: Remember public use doctrine: rights to public waters.