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Property I
University of Michigan School of Law
Simpson, A.W. Brian

First Possession: Acquisition of Property by Discovery, Capture and Creation

Acquisition by Discovery
ª      Johnson v. McIntosh, Supreme Court of the United States, 1823 – P’s claim territorial lands under a purchase and conveyance from Native Americans in 1773 & 5, and by D under a later grant from U.S.  The Chiefs were under the proper authority of their tribes to convey the land.
o        Issue: Whether Native Americans have the right to convey land to others under American law.
o        Holding: No. Although Native Americans were the occupiers of the land, European countries had established ownership of the land through discovery. This title to the land was passed on from European countries to the United States. The US alone has the power to convey title of Indian lands.
§         If you discovered the land you had title to it against all other discoverers to cultivate and give out the land as you see fit. The title of the land was subject to the occupancy of the Native American tribes
§         The US has the exclusive right to extinguish the title of the Native Americans when they wanted to. Two entities cannot have absolute title over a piece of land at the same time and the US had the absolute power to do with it as they wish. For the Native Americans to also have this right would be inconsistent with US absolute right.
ª     Discovery or Conquest?
o        Discovery is the first sight of land that was unknown or uncharted. Followed by a ceremonial possession of the land and a perfecting of the possession through settling in a reasonable amount of time.
o        Conquest is the taking of land from an enemy by force followed by a formal annexation to the conqueror.
ª     Occupancy theory or principle of first in time: The earth was first owned by all, but avarice gave way to scarcity so the institution of private property became necessary to preserve peace. Private ownership developed explicitly through agreement or implied through occupation.
ª     John Locke and Labor theory: Locke had theory that the first come theory was a law of nature imposed through labor.
o        A man’s labor was his own possession and whatever he cultivated would become an extension of this ownership – his private property
o        Accession law effective when one person adds to the property of another through labor.
ª     John Locke and Johnson v. M’Intosh
o        Native Americans didn’t have ownership b/c they didn’t provide enough labor into it to make it their property
o        The settlers extinguished of the Natives Americans in this way because it was the most cost effective way (purchasing the land as opposed to war). Early American laws attracted settlers that weakened the Native Americans possession of the land (disease and cultivation and killing of their game) so that they would sell it for little to nothing.
ª     Ownership gives the person the right to control what happens to the property – that is legal.
o        Gives the person more power because have open ended right to do what you want with it.
o        Your relationship to others in respect to property is to exclude others from messing with your property. Have an unlimited power of control – central concept of ownership.
ª     Good things about Property
o        Future control gives incentive to improve the property
o        Gives a sense of security
o        If you have property you have more control over your life. More clout in society. No autonomy if no property
o        Property is a way of expressing oneself
ª     Bad things about property
o        Unequal distribution
o        Can lead to competitive acquisition and waste of resources
o        How I look after my property affects other people and they have no power to make me behave a certain way – third party effects
ª     Why is the right of occupancy not a property right? They don’t have the right to transfer the land except to the US. When they agree to the sale they don’t transfer the property right because they don’t have one. They are just agreeing to leave the land. The other reason that they didn’t have title to the land is because they didn’t put any labor

re entitled to a payment. The payment is like a reward and if the vessel is in serious danger could be something like 80 percent of the value of the vessel.
ª     Keeble v. Hickeringill, Queen’s Bench, 1707 – The P had a decoy pond where he bought different devices to capture wild ducks there for his profit. The D knowing this, went three times to the pond and shot off a gun. The noise and smell frightened away the ducks from the pond.
o        Issue: Whether there is an action for maliciously scaring ducks away from the P’s pond.
o        Holding: 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.
§         Being that doing such action is not against the law, when someone intentionally hinders the use of the land is liable.  That is to say they are liable if they have no cause to be involved in such practice.  If DF were to have his own land adjacent to PL, and were to use his own gun fire to scare off ducks onto his own land, then there would be no malice, as there DF would be trying to do business for himself. 
ª     Ratione soli – the owner of land has possession of all the wild animals on that land until the animals take off.
o        Courts say that landowners have constructive possession over a wild animal.
ª     The Rule of Capture and Other “Fugitive Resources”
o        Natural resources are likened to wild animals
o        Resources belong to the owner of the land as long as they are on it and subject to his control, but when they escape they become the property of the owner of the land they escape to.