Property I Outline

Section I: Acquisition of Property (Chapter 1 & 2)2
Section IV: Land Use Regulation – Servitudes (Chapter 10)4
Section VI: The Problem of Takings (Chap. 12)10
Fairness and efficiency are goals of court – they shape their decisions to be socially productive to these ends
Section I: Acquisition of Property (Chapter 1 & 2)
I.                   Acquisition of Property by Capture
Types of property:
·        Real property- land
·        Personal property – property other than land
♥ Pierson v. Post (p. 19)
Facts: Post was hunting a fox. Pierson, knowing this, killed the fox and carried it off.
Holding: Property in wild animals is acquired by occupancy. Pursuit alone does not constitute occupancy or vest any right in the pursuer. The moral wounding of an animal or trapping or intercepting of animals so as to deprive them of liberty constitutes occupancy. Post loses because he only shows pursuit.
Dissent: New rule should be adopted: property in wild animals may be acquired if the pursuer be in reach or have a reasonable prospect of taking the animal. Livingston also thought that arbitration would have solved (norm was that all hunters in the region regarded hot pursuit as giving rights to take an unimpeded first possession).
Rule of capture = rule of first in time (both fairness and eff support this)
Maximizes capture
♥ Ghen v. Rich (p. 26)
Facts: Rich bought a whale at an auction from a man who found it washed up on a beach. The whale had actually been killed by Ghen’s ship and left with an identifying lance in the animal.
Holding: When all this is practical is done to secure a wild animal, it becomes property of the securer. The custom of local trade can be enforced when it is embraced by the entire industry and has been concurred for along time by everyone. This trade usage was necessary for the survival of the whaling industry bc no one would engage in whaling if he/she could not be guaranteed the fruits of his/her labor.
Custom is blurry – be wary of judge that uses this
♥ Keeble v. Hickeringill (p. 31)
Facts: Keeble claims that Hickeringill scared ducks away from his pond
Holding: Damages may be recovered for intentionally frightening the game off of another’s land. No title to the game existed, but Keeble was using his land in a lawful manner.
·        Ratione soli – conventional view that an owner of the land has contructive possession of wild animals on the owner’s land (prior possessors of any animals ferae naturae on their land until the animals take off)
·        Interference with capture – 37 states have enacted legislation to outlaw hunter harassment
·        Theory of malicious interference with trade
Depends on what kind of practices we (as a society) to encourage:
If we think that the activity makes the world better: competition
If we think that the activity makes the world worse: illegal
 
In keeble, there are ways that will get ducks on the table and there are ways like shooting guns that decrease ducks on the table. If the activity that is done maliciously enhances consumer welfare, then we will say competition.
» Rule of capture and wild animals: A trespasser who captures an animal on the land of another may not have rights to it since the owner of the land may have constructive possession
» Rule of capture and other resources – courts sometimes liken to wild animals; Belong to the owner of land so long as they remain on the land, when they leave his/her land, they are no longer under his/her control
»ground water…two approaches
·        Some (western) states use the rule of prior appropriation (the first to put it to good use)
·        Some (eastern) states use various riparian rights
39 – Hammonds case found that if A takes oil from B (underneath prop) and reinjects it, A is not liable for any damage because A does not own it
Makes perfect sense to let underground storage occur to encourage economically beneficial b