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Property I
University of Illinois School of Law
Smith, Bruce

Property Outline
Saturday, November 03, 2007
2:21 PM

1. First Possession
a. Acquisition by Capture
i. Pierson v. Post – Fox hunting case. Pierson was poacher (wins), Post was hunter. In order to claim occupancy of a ferae naturae one must deprive the animal of it’s natural liberty either by mortally wounding it or encompassing and securing the animal with nets and toils and renders escape impossible. Mere pursuit or possession of the dead animal is not enough. The leading case for how people come to own things that are previously unowned and found on land that is unowned. Large Dog rule: Barbeyrac says that you don’t necessarily need the body, “if beasts are followed by large dogs, or killed or wounded with a lance or sword; but if chased with only small dogs (beagles) then the animal is passed to the captor and not the pursuer”.
ii. Who owns Barry Bonds’ Baseball – Popopov v. Hayashi(?), equitable division, who had possession. Court ends up selling the baseball, and splitting the proceeds.
iii. Ghen v. Rich – Ghen was whaler, killed finback whale. Ellis found whale, auctioned it off to Rich. Ghen claimed local custom rights to the whale. Ghen wins. Court decides to follow local custom. Iron holds the whale – norm that dominated hunting of sperm whales. The whale went to the whaler who first affixed the harpoon, and remains in fresh pursuit or had otherwise significantly marked it. Pursuit and affixing the harpoon first is all you need (first harpooner). Rewards aggressive hunters. You don’t need the line fastened to your ship. Sperm Whales were aggressive/dangerous to hunt, so rules are “fair” in this type of hunting.
Fast fish/loose fish – Fast fish means that your line has to be fastened to your ship. If it breaks free of the line, then the whale is loose and free for all to hunt. Used for Right Whales because they were slow, and easy to kill. Possessor needs to do all that is practicable to control the whale. Sometimes courts will follow custom (as in Ghen v. Rich) and sometimes they don’t (Pierson v. Post).
d. Keeble v. Hickeringill – Keeble and Hickeringill were neighbors and owned rival duck decoy ponds. Hickeringill goes onto Keeble’s land, and scares his ducks away. Can he interfere w/ another man’s property? Can he interfere w/ another man’s trade? Anyone that hinders another in his trade or livelihood is liable to an action for so hindering him. Where a violent or malicious act is done to a man’s occupation, profession, or way of getting a livelihood, there an action lies in all cases. But if a man does him damage by using the same employment i.e. Hickeringill sets up another decoy on his own land, then there would be no action because he has as much of a right to make and use a decoy as Keeble does. Theory of malicious interference with trade. Court wants to promote economic efficiency. Once ducks land on private property are property of owner of that property – “ratione soli”. ANIMUS REVERTENDI – does an object return, does it have a habit of return. If a once wild animal has animus revertendi, then the person who domesticated it has certain rights to it. They want to encourage domestication of animals, and respects the investment of the domesticator.
b. Acquisition by Discovery –
i. Johnson v. M’Intosh – Indian title case. Johnson received title from Piankeshaw Indians and the Illinois Indians, while M’Intosh bought title from the same lands from the US Govt at a later time. M’Intosh wins. The Indians were admitted to be the rightful occupants of the soil, with a legal and just claim to retain possession of it, but their rights to complete sovereignty, as independent nations, were diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. CJ Marshall claims that only European Countries (Christians) have fee simple in the land. One rationale is that only the US Govt is entitled to buy land from the Indians. Strong interest in establishing clear title.
c. Property in One’s Person –
i. Moore v. Regents of the Univ. of California – Moore sued UCal for conversion of his liver cells. Moore had special type of cells, and when he went in for treatment for hairy cell leukemia, the Dr Golde lied to him and told him he needed to undergo extra tests/treatments for series of years, in order to obtain a stem cell line from Moore’s cells. Moore sued for ownership rights of the resultant stem cell line that U Cal patented. Moore wins on other causes of actions (med mal, lack of consent, etc.), Regents win on conversion charge. Moore gets 300K before dying. Bundle of rights. Can only give away body parts as gifts, not sell it.
d. Acquisition by Creation –
i. INS v. AP – Rival wire news services. INS would copy AP’s early news bulletins and sell them to its customers out west, or to people who could wait for their news and wanted it cheaper. Court holds that INS is engaged in unfair business practices. The unauthorized interference with the normal operation of complainant’s legitimate business precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have earned it to those who have not; with special advantage to defendant in the competition because of the fact that it is not burdened with any part of the expense of gathering the news. Thus it is characterized as unfair competition in business. Can’t copyright the news, but can copyright the style of the news. Hot news concept. Hot news only applies to news, not to other industries.
ii. Cheney Bros. v. Doris Silk Corp. – Cheney Bros. comes out with silk scarf designs, and Doris Silk copied the successful designs. The design wasn’t copyrighted or patented (because you couldn’t patent a design). Court decides you can’t exclude others from copying your chattels. Refused to expand INS v. AP (hot news) precedent to this case.
iii. Smith v. Chanel, Inc. – Smith made a knockoff version of Chanel No. 5, and wanted to advertise saying it was equivalent of Chanel No. 5. Chanel No. 5 is not patented, but the brand name is trademarked. Court decides a large expenditure of money does not in itself create legally protectable rights. Appellees are not entitled to monopolize the public’s desire for the unpatented product. Smith wins. Spurring competition.
iv. Diamond v. Chakrabarty – Chakrabarty is a scientist who created a new bacterium capable of breaking down oil. Wants to be able to patent the bacteria. Court rules, yes it is patentable; The patentee has produced a new bacterium with markedly different characteristics from any found in nature and one having the potential for significant utility. His discovery is not nature’s handiwork, but his own.
v. White v. Samsung Elcs. Am., Inc. – Vanna White sued Samsung over an ad they made about a robot in front of a Wheel of Fortune board, claiming that it infringed on her IP rights, and in CA her “Right of Publicity”. Court rules in favor of Vanna White.
vi. MGM Studios Inc. v. Grokster, Ltd. – MGM suing Grokster and Streamcast (Morpheus) over P2P software over IP infringement. SC rules that this case different from VCR, that VCR had substantial noninfringing uses, but that P2P has substantial infringing uses. Issue: Under what circumstances is the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by 3rd parties using the product. H: That one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. Fair use of copyright.
e. Right to Include and Exclude –
i. Jacque v. Steenberg Homes, Inc. – Steenberg homes needed to deliver a mobile home, and wanted to cut thru Jacque’s land to do it, they said no, but they still did it. Jacque’s sued for trespass to property and wanted punitive damages. Jacques won. Can exclude, no matter how irrational you are. Except, see State v. Shack – can’t infringe on other people’s rights.
ii. State v. Shack – Shack and Tejeras were employees for 2 governmental orgs designed to help migrant workers. They entered farm of Tedesco, but Tedesco wouldn’t allow them to see the migrant workers without conditions, they refused and were arrested. Issue: Were they trespassing? Was the farm owners’ right to exclude greater than the migrant workers’ rights? H: Overturned trespass conviction. Can’t exclude govt agents from their jobs.
iii. eBay, Inc. v. Bidder’s Edge – ???; Bidder’s Edge was a service that trolled multiple auction sites to see what the price was for a certain item. eBay sued for trespass to chattels, claiming that BE was resp

eport this to police, but does inform some friends and eventually an artist’s trade group. 30 years later, she finds out that Frank has just sold the paintings to Snyder, and demands return. Snyder claims he has a voidable title in the paintings (good faith purchaser), and that the statute of limitations has run out, and adverse possession. Court remands for more facts. Says that cannot get good title from thief, unless the statute of limitations has run out. Statute of limitations depend on state. When does the statute of limitations starts to run. Most states start when the owner knew, or should have known, where the stolen goods are.
i. Basic Possessory Estates
4 Possessory Estates –
Fee Simple, Fee Tail, Life Estate, and Leasehold.

Fee Simple – want to think about land. Present possessory estate. As close to absolute possession in law. Can potentially last forever. No restrictions in alienation. Sell/gift/rent/leave in will/etc. As powerful as you can get. How do you make one of these? Complicated, rules have changed over time. Before 1800 (common law) – fee simple created in precise language. “To A and his heirs” was absolutely necessary to make a fee simple interest. Were called words of purchase. Identify grantee of fee simple interests. “… and his heirs” were words of limitation, identifying the nature of the estate.

In modern times, courts have relaxed the rules in making fee simple, a grantor is presumed to convey her entire estate. Common law strictness is no longer required.

Fee tail – rare in modern law. In England in early modern period, people who had land tried to keep it within their families. Fee tail was created with precise language. “To A and the heirs of his body.” Grant land to A and all of his issue (offspring/descendants). A fee tail lasts as long as his issue live. When they die, then the fee tail dies.

Life estate – present possessory estate, that ends at the death of a certain person. “For A for life”. A gets the property for A’s life. What happens after A dies? The property comes back to the grantor, or perhaps the grantor’s estate. Certain circumstances “to A for life, than to B”. After A dies, it moves to B. Life estate often comes in pair of interests. Reversion – property goes back to O. If property go down to B then it’s a remainder. These two interests are paired with the life estate.

Leasehold – highly contractual, highly statutory, usually between landlord, or the county.

i. White v. Brown – case over estate of Jessie Lide. She had been living with her sister in law (White) and White’s daughter, and left a will saying “to have my home to live in and not to be sold”. Browns are other nieces and nephews that want a piece of the inheritance. They claim that the will creates a life estate. Court rules that the will is a restraint against alienability, and that the intention of Lide wasn’t to create a life estate, and gives the Whites a fee simple.
Baker v. Weedon – Weedon was a farmer that had 2 ex wives before marrying a 17 year old (Anna). He dies leaving her and her heirs the farm, with the condition that if she doesn’t have heirs the farm goes to his daughters’ children. Anna doesn’t have children. Bakers (grandkids) (contingent remaindermen) don’t want Anna to be able to sell the farm, saying that the property is going to be worth more in a couple of years after a highway is finished (waste principle). Court rules that it is to go to a Chancery court, and that Anna has to go to court every time she is in need (she is destitute). The