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Property I
University of Illinois School of Law
Smith, Bruce


1. First Possession
a. Acquisition by Capture
i. Pierson v. Post – Fox hunting case. Pierson poacher (wins), Post hunter (loses). In order to claim occupancy of a ferae naturae, one must deprive the animal of its 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. Leading case for how people come to own things that are previously unowned and found on land that is unowned. Large Dog rule in dissent: Barbeyrac, body not necessarily needed, “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 (usage) to the whale. Ghen wins. Court decides to follow local custom and award Ghen profits from the whale oil.
1. 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.
2. 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).
iv. 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.
1. Constructive possession – Once ducks land on private property they are constructive property of owner of that property – “ratione soli”.
2. 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 respect 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 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. Indians only had a right to occupancy because Indians did not recognize European property rights. CJ Marshall claims that only European Countries that are first in time have fee simple in the land. Title must originate in the Government, because te sovereign has original title to the land. 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 informed 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. Theory behind denying conversion suit was that the Doctor innovated the cells and that Moore did not have possession of the cells once they were outside of his body.
1. Bundle of Rights Theory, Kaiser Aetna v. United States
a. Right to exclude
b. Ability to alienate, give away or sell
c. Ability to rent
d. Ability to leave to distant generations
e. Ability to destroy one’s property

d. Acquisition by Creation
i. Patent law is an area of law that provides monopoly rights to someone who manufactures useful compositions, methods, etc. Patent lasts 20 years from the time that patent application is filed.
ii. Copyright protects original works of expression (music, books, art, etc.) protects for the lifetime of the author + 70 years
iii. Trademarks – protect certain marks that identify the source of goods. Protects against uses by others that are confusingly similar. No date of expiration. Lost when abandoned or becomes generic.
iv. State IP law – anything that doesn’t fall in the above. Trade secrets, right of publicity, hot news. State law, not federal. IP is intangible. Can be property. Can have rights of property. But is intangible. It is no

acque v. Steenberg Homes, Inc. – Steenberg homes needed to deliver a mobile home, and wanted to cut through Jacque’s land to do it, they said no, but Steenberg still did it. Jacque’s sued for trespass to property and wanted punitive damages. Jacque won. Allowing for punitive damages in a trespass action protects society from land owners who would otherwise resort to self-help. 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 based on public policy ground of protecting the needs of the occupants. Necessity may allow entry onto another’s land sometimes.
1. Reliance principle – When owners of a property grant access to another party, they are not unconditionally allowed to disallow access. Parties may have a right of entry to the extent that they relied on the promise of entry.
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 responsible for a significant amount of traffic on it’s site, and putting stress on it’s servers. eBay won. Interfered with use of and damaged eBay servers.
1. NOTE: the interests of a possessor of a chattel are different from the interests of a possessor of land in that , a possessor of chattel may only sue for trespass if the intermeddling materially interferes with the usefulness of the chattel, while a possessor of land may sue for any trespass on the land.
2. Trespass is a strict liability tort

2. Subsequent Possession
a. Acquisition by Find
i. Property deemed public
1. Lost property – property that the owner has accidently parted with. Unintentional departure with property. Goes to the finder of the property against all others except the true owner.
2. Mislaid property – property placed by the owner at a certain locale, and then over time, essentially, forgotten. Goes to the owner of the premises against all others except to the true owner.