I. ACQUISITION (FIRST IN TIME)
A. Acquisition by Discovery/ Conquest
Johnson v. M’Intosh (1823): Title given to first “civilized” occupiers of land based on “first in time” principle; discovery vests title; justified by Locke (nomadic Indians didn’t blend labor with land) and English tradition; right of occupancy is granted to conquered people, but not right of title to dispose of land [conflict between two people with title to land, one from govt land grant the other purchased from Indians; held, Indians did not have title and therefore could not covey it]
B. Acquisition by Capture: You must have actual possession, or else constructive possession by inflicting a mortal wound; pursuit does not vest title. Pierson v. Post (1805) [one hunter was pursuing the fox when another hunter shot it; hunter who shot the fox had possession]
i. “mortal wound” approach: (1) is objectively likely to deprive the fox of his natural liberty; (2) shows a subjective “manifest intention” to seize the animal (i.e., not just for the enjoyment of the chase)
ii. “socially useful enterprise”—majority accepts that killing foxes is a socially useful enterprise; dissent elaborates that it protects activities of chicken farmers (wants to protect pursuit as possession to encourage more hunting; intruder should not gain from labor of first person)
iii. Other reasoning: keeps the peace, decreases litigation (the end of the hunt is an objective measure whereas the beginning is subjective), clear and easy to administer
C. Title to a wild animal is acquired by constructive possession in accordance with custom. Ghen v. Rich (1881) [the whaler who lanced the whale vested best title over the person who found the whale on the beach where custom dictated that whalers marked their spears to indicate ownership]
i. Custom recognized as basis for property right when: (1) its application is limited to those working in the industry (2) custom is recognized by whole industry (3) requires of the first taker the only possible act of appropriation (4) necessary to survival of industry (5) and works well in practice
ii. Custom is bad when: (1) formulated for the benefit of the industry but not society as a whole (2) may be dangerous to those employed in the industry (3) wasteful of a resource (i.e., the whales that floated out to sea and weren’t recovered)
A. Property from the Commons: there is no tragedy of the commons in intellectual property because everyone can use information without damaging the use of another (non-rivalrous & non-excludable without legally created rights). Baird, Common Law IP and the Legacy of INS v AP (1983) So how do we justify property in information?
i. To get the value of the labor—INS v. Associated Press (1918): although the news is common property, the news put out by AP is blended with their labor and is sold as a good for money (creates quasi-property); the test is not the right of INS against the public but as against AP as their competitor in the sale of the good.
ii. To encourage people to create—
1. Cheney Bros. v. Doris Silk Corp. (1930): “In the absence of some recognized right at common law or under statute, a man’s property is limited to the chattels which embody his invention. Other may imitate these at their pleasure.” [imitation of designs on clothing]
2. Smith v. Chanel (1968): imitation breeds competition which properly adjusts the price society must pay for a given commodity; the expenditure of money to create demand does not create a legally protected interest in the public’s desire for the product. [imitation of scent advertised as equivalent of Chanel no. 5]
II. PROPERTY IN ONESELF
A. Property in One’s Persona
i. MISSING- NICHOLS V UNIVERSAL PICTURES CORP, DIAMOND V CHAKRABARTY WHITE V SAMSUNG ELECTRONICS AMERICA INC METRO GOLDWYN MEYER STUDIOS, INC V. GROSKER LTD
B. Property in One’s Person
i. Human body parts are not property such that they may be converted; labor theory in that the value came from the research. Moore v. Regents of the U. of Cal (1990)
1. Dissent: you can recognize the property right but limit the bundle (say it’s not alienable)
2. PRO AND CON OF SALE OF BODY- PAGE 82
C. RIGHT TO INCLUDE/EXCLUDE- PAGE 86
i. JAQUE V. STEEINBERG HOMES INC PAGE 87
ii. STATE V SHACK PAGE 88
TRANSFER OF PROPERTY RIGHTS
Types of Remedies for Property
Personal Real
t ouster a cotenant in exclusive possession is not liable to the others for rent. Ouster only occurs when a cotenant denies another cotenant use and enjoyment of the land. (efficient use of land)
1. Adverse possession: unless he has ousted the cotenant, a cotenant in exclusive possession for the statutory adverse possession period cannot acquire title to the exclusion of the others. (element of hostility for adverse possession is missing without ouster)
2. Improvements: during the life of the cotenancy there is no right to contribution for improvements, however at partition the improver gets a credit equal to any increase in property value caused by the improvement and also bears full liability for any decrease in value caused by the efforts
3. Waste: a cotenant must not commit waste; a cotenant can bring an action for waste during the life of the cotenancy
ii. Severance:
1. Partition in Kind: a tenant in common has a right to bring an action in partition; land is divided by contribution
2. Partition by sale: assets divided by interest
Delfino v. Vealencis (1980): πs were tenants in common with Δ who operated a garbage dump on the land. Πs wanted to develop housing and wanted Δ to stop hauling garbage. Πs sought partition by sale and assets divided by interest. Held, a partition by sale will only be ordered if physical partition is impracticable or inequitable and where both parties’ interests are promoted by the sale.
B. Joint Tenancy: two or more owned with the right of survivorship
i. Creation: must have the four unities; and clearly express the right of survivorship
1. take their interests at the same time
2. by the same title (instrument)
with identical equal interests
