Property I Outline

Prof. Schindler, Maine Law

Property

Fall 2013

Fundamentals

Chapter 1

A. Acquisition by Discovery

a. Johnson v. M’Intosh (1823)

i. Facts: Johnson (P) bought land from Native American tribe. M’Intosh (D) later obtained the same land from the US federal government.

ii. Issue (holding): Can Indians sell title of possession? (No)

iii. Rule: Only the government can sell land, because the principle of discovery gives title to those who made the discovery (Indians don’t count)

Terms:

Acquisition by Discovery (Johnson v. M’Intosh)- finding of unknown territory accompanied by landing = symbolic taking of possession and receiving of title.

Acquisition by Conquest (Johnson v. M’Intosh) – taking possession of enemy territory through force.

First in Time Principle- being the first in some place justifies ownership rights. Benefit: easy dispute resolution.

Labor Theory (Phylosopher John Lock)- Q: initially the world belongs to all human beings in common, so by what right can an individual claim to own part of the world? A: Individuals do own their labor, and once a labor is being invested in an object it becomes the person’s property.

B. Acquisition by Capture

a. Pierson v. Post (1805)

i. Facts: Post (P) was in pursuit of a fox. Pierson (D) killed and captured the fox knowing that Post had been perusing it.

ii. Issue: What gives us the right to wild animals?

iii. Rule: “First to kill and capture”, only deadly wounds or killing the animal gives a right to the animal.

iv. Reasoning: Rule is easy to apply and administrate (although it’s against industry custom)

v. Dissent: To keep encouraging hunters, give right to the person in pursuit.

b. Gen v. Rich (1881)

i. Facts: Ghen killed a whale and left his mark on it. Rich took the whale and sold it for oil, but industry custom says that one who killed and marked the whale owns it.

ii. Issue: Can the court look at industry custom in order to come out with a rule? (Yes)

iii. Rule: Court can look at industry custom to determine rules of property ownership.

iv. Reasoning: Custom must continue for industry to exist, incentive to kill whales, it all worked well so far so let the industry experts determine.

v. Notes: Compare this with Pierson v. Post where industry custom was ignored (Rich’s argument is based on that case).

c. Keeble v. Hickeringill (1707)

i. Facts: Keeble (P) sued Hickeringill (D) because D fired a gun and scares away the ducks that P was capturing.

ii. Issue: Can you recover from an interference with your land use?

iii. Rule: A party can recover against another for interfering maliciously with the party’s ability to using the land for pleasure and profit.

iv. Reasoning: Ducks are food. If D was using the land for business competition is would be ok, but it’s not ok to scare away food- the rule meets the instrumental end.

Terms:

Rule of capture and Wild Animals

Ratione Soli Doctrine- if the animal is on your land then you have the ownership of the animal as long as it stays on your land, because you have constructive possession of the animal.

Constructive Possession- When you don’t have an actual possession, but the ability to control the asset (like a key of a safe deposit box)

Relativity of Title- O(land owner has better title than) > T(trespasser to O’s land) > T1 (trespasser to T’s land)

Animus Revertendi Doctrine- Animal returns. If the animal has the habit of coming back (domesticated) it belongs to the person who owns the herd (to reward people’s labor)

Rule of increase: the offspring of the animal belongs to the owner of the mother.

Horald Demsetz, theory of property rights

Communal Property- can be inefficient use of resources.

The Tragedy of the Commons- everybody takes as much as they can until the resource is not there anymore.

Externalities- costs/harms/benefits on others that the person who causes it does not bear the weight on it.

Internalization- People take responsibility for the externalities of their own properties.

Hold Out Problem- even if many people agree to do something, others can decide not to do it.

The Free Rider Problem- Someone who won’t pay or get involved with the efforts of the rest of the community because he does not care or thinks that others will take care of it.

Fugitive Resources- that move from place to place, like wild animals.

C. Acquisition by Creation

1. General principles of intellectual property

a. International News Service v. Associated Press (1918)

i. Facts: IP (P) and INS (D) are competing news collection agencies. P sued D for copying the news that P is producing and posting on bullet boards, presenting it as their own.

ii. Issue: (1) Is there property rights in news? (2) Is D conducting unfair competition?

iii. Rule: (1) the way the story told can be copyrighted, but facts themselves cannot be copyrighted. (2) there is unfair competition practice by D because P had “quasi property interest”

iv. Reasoning: (1) News are public property, we do not want to create monopolies so agencies lose their property rights to the common public once the news are published.

(2) Instrumental end: we want to protect the business of making news and give incentive to the agency that goes out to gather news.

v. Note: “Quasi Property”- “almost property”, a concept in which rights similar to ownership may be given to a party who does an act that benefits society as a whole.

vi. Note: This case was limited to it’s fac