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Property I
University of Mississippi School of Law
Cooper, Benjamin P.

Property, Cooper, Fall 2012
I.) Introduction:
*State v. Shack (pp.88): (Bundle of Rights) P stopped the D’s (non-profit gov. agency) from speaking with the migrant workers and told them that legal advice will only be given in his office and in his presence.
            -The ownership of real property does not include the right to bar access to governmental services available to migrant workers.
            -Property rights are not absolute.
            -Individual and societal interests may sometimes trump property interests. Property rights serve human values.
***Property as a bundle of rights, including rights to possess, to use, to transfer, to exclude.
*Bundle of Rights:
1.)    Right to exclude/include
2.)    Right to possess and use
3.)    Right to transfer
4.)    Right to destroy
*Property: the right among people that concern other things
*Possession: 2 elements: (1) an intent to possess, and (2) control
*Relativity of title: idea that one can have better title than another
II.) Acquisition of Property:
A.) Acquisition by Discovery (or Conquest):
*Johnson v. M’Intosh: Two competing claims of right to the same land (IL). P bought the land from an Indian Tribe; the D was given the land as a grant from the U.S. Government.         
            -Right to discovery gives an exclusive right to title, subject to Indians’ right to occupancy, though even that right may be taken either by purchase or by conquest.
            *Through this, Americans gained land and the Indians gained civilization (court’s idea).
B.) Acquisition by Capture:
*Pierson v. Post (1805): (Actual possession) P Post pursued a fox on uninhabited land. Even though D Post knew P was hunting the fox, he killed it and took it first. P sued D claiming that he had already laid claim by virtue of his chasing the fox first.
            -Mere hunting and pursuant of an animal doesn't vest title (Rule).
            -One must mortally wound, physically capture (deprive of natural liberty), or kill the animal in order to have his title in it vest (Dicta). This is a substantive rule for wild animals.
            -The majority’s decision set out to establish a clear rule that has certainty; certainty was an important goal of the majority:
            -Dissent: Justice Livingston does offer a dissent discussing that property of wild animals may be acquired without bodily touch, “provided the pursuer be within reach, or have a reasonable prospect.”
            -Empirical judgment when Livingston stated that the majority’s decision would greatly decline the fox hunting sport.
*Main courses of justification for the court:
            1.) Locke’s argument: the European’s productive use of the land creates the property rights of that land; as opposed to the Indian’s use or lack there of; encouraging labor and improvement of your land
            2.) Int’l Law of Discovery: Euro idea that whatever you discover is yours (first in time)
            3.) Settled Expectations: Expectations of the society for the traditions and customs of the situation. Preference is not to disrupt this expectation.
            4.) Virginia Statute (pp.6): notably passed in 1779, after the initial conveyance from the Indian tribe; retroactive
            -Majority: first to mortally wound
·         Deprive of natural liberty
·         Bring within certain control
·         Intent
            -Dissent: first to reasonable pursuit
·         reasonable prospect of capture
*Constructive possession: landowners have constructive possession of animals on their land.
*Domesticated animals (animals with a habit of returning) are legally different than wild animals.
*In this case, the court ignores the customs of fox hunting.
*Ghen v. Rich (1881): P Ghen shot and killed a fin-back whale in Cape Cod. The whale, as a dead whale does, sank to the bottom, later to re-surface for P to claim. Before P could claim it, however, Ellis found it and sold it to the D.
            -Rule: Under industry custom, mortally wounding the whale constitutes possession of the whale even though physical possession comes later
            *The court acknowledged that if they didn’t rule based on the established custom, that it would kill the whaling industry.
            *In this case, the court preserves the customs of whale hunting. Contrast to court stance in Pierson v. Post.
            ***Stipulations of using custom for decision: when custom is of limited application; if it affects few persons; if it does well generally in the business; custom not disturbing the general understanding of mankind.
            *Pros: benefits business of whaling; decision makes 
            *Cons: maybe doesn’t encourage new invention; maybe will cause over-whaling
*Key distinction in customs in Ghen: “all this is possible” for whalers to capture whales
*Custom can be help to define “capture”
*Keeble v. Hickeringill (1707) (pp.27): P uses duck hunting and his pond for his trade. D owned property next to P’s property. P alleged that the D fire a gun near his property, which spooked ducks on the pond ultimately, negatively affecting the P’s trade.
            (1) One argument is that the P has constructive possession of the alleged ducks on his property       
            *Constructive Possession: landowners are presumptively regarded as the prior possessor of any animals on their land; but it is not ultimately applied here because constructive possession requires capture, which in this case, does not occur.
            (2) The other argument is for the protection of the P’s trade:
            -It doesn’t matter why you interfere with the competitor (example: malice), but how you do or in what method you use to interfere.
*Method is important idea when analyzing the circumstances; what methods of competition or interference are barred due to protection of the P’s trade?
*The court wants to encourage good competition and discourage bad forms of competition.
            -Does the competitor hinder the other competitor’s performance through superior performance or sabotage? Good competition or wrongful competition?
            (3) The court’s reasoning on this case encourages more ducks!
*Popov v. Hayashi (2002)(Handout): Bond’s 73rd homerun ball; the P allegedly caught the ball, and it was the D who eventually ended up with the ball; the P then sued on the basis of conversion (stealing).
            -The P argues “possession occurs when an individual intends to take control of the ball and manifests that intent by stopping the forward momentum of the ball whether or not complete control is achieved.”
            -The D argues “possession doesn’t occur until the fan has complete control of the ball.”
            -The court finds that the P has pre-possessory interests in the ball and that gave him the right to not be attacked.
            -The pre-posseesory interests of the P vests “equitable division” with the actual possession of the ball on the behalf of the D.
C.) Acquisition by Creation:
*Intellectual Property (Common Law):
Policy Reasoning for Intellectual Property Law:
·         Pro: Encourage Innovation, Locke labor theory, moral “reap what you sew,” protects certain property rights
·         Cons: Encourage competition—build off ideas, competitive pricing, stop monopolies, benefits consumers 
·         Hot news misappropriation claims only where a
o   Plaintiff generates or gathers information at  cot
o   The information is time-sensitive
o   A defendant’s use of the information constitutes free riding on the plaintiff’s efforts
o   The defendant is in direct competition with a product or service offered by the plaintiffs and
o   The ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened
o   This was almost completely banished last year when Fly on a Wall and Barclays when they said those Hot News Doctrine was dicta
*INS v. AP (1918)(pp.51): The two parties are competitors in the news business. The AP had sued INS to restrain them from pirating their news by bribery of employees, copying news from their bulletin boards and selling it as their own.
            -Common Law right is the main issue… Is news property and how much of news is common and how much is copyrighted?
            -Property rights are relative; they involve other people; this case is a good example. 
-As between AP and INS, the news must be regarded as “quasi property.”
            -The court holds that INS is trying to “reap what they have not sown.”
            -Possible empirical judgment: (Impact on the market) AP could possibly go under if the court had gone the other way; this could somewhat be compared to the Keeble case.
*Cheney Brothers v. Doris Silk Corp. (1930)(pp.55): P designs silk patterns and sometimes the designs are successful. The D eventually copies one of their successful patterns (unpatented) and underc

true owner or prior possessors.”
            – (Most ownership) [– 0 – F1 – F2 – F3 – F4 –] (Least ownership)
-Familiar principles:
-Relativity of property rights
-First in time
*The “law of finders” does protect the true owner. The true owner has prior possession to everyone, thus giving him ultimate title over everyone else.
*Voluntary Bailment: ex. Taking clothes to the drycleaners, parking you car in a parking deck, etc.
-If the O gave the sweep on bailment, and if the O came back to gain possession, would the goldsmith be held to relieve the possession again?
            -According to the rule of finders, a thief would win even against an honest finder if he comes first in time.
            -Courts though prefer an honest finder further down the line to a thief closer in line to the original owner.
*Hannah v. Peel (1945): The P (a soldier) finds a brooch while stationed at a manor. The P turns the brooch into the police. After not finding the true owner, the police give it to the owner of the manor, the D. Subsequently, the D sells the brooch. The P then sues the D for value of the finding.
            -The court rules in favor of the P in that the D (owner of property) only has title in things attached to his property, and that the brooch in this case was unattached.
*Important issues considered by the court:
            (1) Not attached to or under
            (2) Never lived there
(3) Hannah is an exception to the rule because Peel never lived at the manor; he didn’t perfect his constructive possession.
(3) No knowledge of the brooch (Peel never knew)
            (4) Good Samaritan
            (5) Hannah = tenant
*Bridges v. Hawkesworth: D owns a barbershop and the P (customer) finds wallet and gives it to the D to find the owner. The D doesn’t find the owner and declines to give it back to the finder, the P. Court rules in favor of the D, in that property “mislaid” vest title to original owner and owner of premises over finders.
*South Staffordshire Water Co. v. Sharman: D (employee of P) finds rings in ground while digging for a pool. The P (landowner/employer) sues for the property found. The court found for the P because of the ownership of the property and the employee/employer circumstances.
            -If Hannah were a trespasser, then he would have most likely lost the case
*McAvoy v. Medina (1866): (“Mislaid property”) The P (customer) finds pocketbook on table in the barbershop of the D. The P gives it to the D to advertise for finding the original owner. When the owner is never found, the D refuses to return the pocketbook to the P and subsequently, the P sues.
            -The court finds that the pocketbook was actually “mislaid”, offering different terms for title. “Mislaid” property gives right to both the original owner and the owner of the premises over the finder of the properties that are “mislaid.”
*Types of unclaimed property:
(1) Lost- unintentionally left/ involuntarily parted with
(2) Mislaid- intentionally left but forgotten voluntarily placed
(3) Abandoned- manifest intent to relinquish
*According to these cases, something found on the ground is lost, and property found a table is mislaid.
            -Where the property is mislaid, is a proxy for determining the intent of the original owner.
*Black letter law: lost property goes to finder, mislaid property goes to owner of place where found
*Hannah was exception to the rule of found property on owned property, mostly because Peel never actually occupied the residence; typically, property found in a house is deemed to the owner of the property.