Property
Spring 2011
Prof Moore
Chapter 1 – First Possession
Acquisition by Discovery
Johnson v M’Intosh
· Whether title can be recognized in the Courts of the United States when transferred from Native Americans to individual settlers?
o Indian inhabitants are to be considered merely as occupants, to be protected while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others
· Doctrine of Discovery – the sighting or finding or hitherto unknown or uncharted territory
· Doctrine of Conquest – the taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror
· Terra nullius – a thing or territory belonging to no one
· First in time, first in right – first person to have possession is the person that has ownership
o Applies in concert with the doctrine of discovery
o Doesn’t reward the person who is the most productive with the land
· Labor Theory – right to ownership of what we put effort into; right to the fruits of our labor
o Disadvantages – who is to say what is a better use of the land? And is it a better use or not? (ex overfishing)
· Property confers power
· MANY different ways to divide up property
Acquisition by Capture
Pierson v Post
· Had Post mortally wounded the animal, it would have been sufficient to show possession since this would have deprived the animal of its natural liberty. However, Post was only able to show pursuit and therefore has acquired no property interest in the animal.
· Possession = killing, mortally wounding, deprive of natural liberty/freedom
· Formalistic reasoning ® look at treatises, cases, statutes
· Instrumental reasoning ® destruction of foxes (dissent), sake of certainty & preserving the peace (majority… also provides for less litigation)
o Both reasoning’s though could be argued for either side
· Rule of Capture – 1st to possess a wild animal, acquires title to the animal
o Majority – killing, mortally wounding or depriving of liberty/freedom
o Dissent – reasonable prospect of capture
Ghen v Rich
· The custom of usage in the area is to let the person who killed the animal have the rights to it, not the one who found it (they only get a finders fee)
· From a public policy standpoint, allowing those who happen to find a whale claim it would lead to very few whalers
· Under custom and rule of capture, the whaler should get the dead whale
Keeble v Hickeringill
· Under property law, does a person owe damages to land owner when he knowingly and intentionally uses physical means to scare chattels off his land, when the person also knows that such action will result in decreased business and threat to land owner's livelihood?
o Yes. If a stranger hinders and obstructs a land owner from engaging in their business practice through some deliberate action, then there is a cause of action which imports damage
· 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
o D would be allowed to set up a competing business that takes away from the P’s business but he can’t simply mess with the P out of spite or for pleasure
· First in time principle by person who built decoy and own land so were in possession
· Ratione soli – constructive possession of wild animal while on your property
o Not used in this case
· Formalistic (similar cases) and instrumental (effect on national market) were each used
· Relating to Pierson case, killing the fox was for sport not trade like the ducks were
· Doctrine of Animus Revertendi
o When a domesticated animal leaves owners property, the owner still claims the animal as it’s property (ex cattle)
o Animal usually viewed as having a habit of returning
Silver Fox
· Was P in pursuit?
· Is there a reason to try and let P have the right to the fox?
o Trade?
o Competing interests of the hunter and breeder
o Are they “constructively” domesticated under the Animus Revertendi?
Government
· What are the consequences of animal damages?
· How can they regulate hunting but not be required to pay for damages?
o Pros outweigh the cons
o Government doesn’t have to own to regulate
Natural Resources
· When resource is not covered by statute, you can use the same notion as with wild animals
o Rule of capture/common law
· Fugitive Nat’l Resources – oil, gas and water
· When B’s pipe goes onto A’s land to drill for oil, B is technically trespassing so maybe allow A to have it all (oil) to discourage trespassing
· If the rule was that through reinjection of gas/oil, A was releasing it, A would never reinject
o Wouldn’t hold A liable for trespass of underground land b/c then A would never reinject
§ Only hold liable if there is damage
· Generally the rule of capture doesn’t work with nat’l resources
Externality – not taking into account results of your actions have on others
· Pros – honey bee farmer has bees pollinate neighbors plants
· Cons – heating a building with coal leads to poor air quality
Internalize an Externality – when a party actually takes into account the “costs” or “effects” of his actions
· Through regulation – pay for causing coal pollution
· Through negotiation – bargain to pay farmer to increase bee production
· Demsetz says the best way to internalize an externality is via private property rather than common property which increase externalities due to over use
o Private property doesn’t really relate to the first in time principle
Hypo
· 1000 communal tress & 100 people
o Not necessarily going to be over exploitation
o Each member has an undivided 1/10th interest in the trees
o If they can start selling them to other communities, then over exploitation will happen b/c individuals will look out for their best interests rather than the communities
§ Wont take into account future interests wh
perty for any purpose which doesn’t invade the rights of another person
· Shack
o Migrant farm workers wanted to see lawyer on farmers property at work
o P tried to file for trespass but court said title to real property doesn’t include dominion over persons
o Workers already on the land is this example so they can invite visitors as long as there are no harmful effects
§ Right to consult attorney trumps the right of the land owners
Chapter 2 – Subsequent Possession: Acquisition of Property by Find, Adverse Possession, and Gift
Acquisition by Find
Armory v Delamirie
· Bailor (true owner)
· Bailee (chimney boy)
· Involuntary bailment b/c owner has no idea jewel is gone
· Rule – Finder has title against all the world except the rightful owner and a prior possessor
· True owner loses watch, F1 finds it and then loses it and F2 picks it up. Who has title?
o F1 has title over everyone (including F2) except T.O.
· Trover – want the money (value) rather than replevin (object)
· Discounted value is the chance the true owner would come claim the jewel – very speculative by the court
· D has the burden to show the value of the diamond since they stole it from the chimney boy
o Court will assume the highest quality until proven otherwise
Hannah v Peel
· Who has title to the brooch? The finder
· A man possesses everything which is attached to or under his land
· A man doesn’t necessarily possess a thing which is lying unattached on the surface of his land even though the thing is not possessed by someone else
· In this case, the D was never in physical possession of the brooch
· public v private land
· want a rule to reward honesty and more likely to get true owner the item back
McAvoy v Medina
· Rule – from a point of social policy, the shopkeeper ought to be preferred to the customer, as in that event the article would be more likely to get back into the possession of the real owner
· Mislaid – it goes to the shopkeeper b/c it was more likely to get back to the real owner
o Intentionally put item there (ex. Counter)
· Abandon – real owner gives up any claim
· Lost – didn’t intentionally put it there (ex. Dropped item by the door)
· There is also a public v private argument
o More likely to turn something into someone in private area (restaurant) rather than a public place (road)
