Property I Outline

Property Outline
I.           POSSESSION OF UNOWNED THINGS
3        ways to get possession
A.    Discovery
–          Johnson v. M’Intosh: Discovery gives an exclusive right to title subject to Native Americans’ right to occupancy, but even those rights can be bought or conquered
B.      Capture
–          Pierson v. Post: pursuit alone vests no property or right in the hunter and that even pursuit, accompanied by wounding is equally ineffectual for that purpose unless the animal be actually taken
–          Popov v. Hayashi: possession depends on context; must establish by a preponderance of the evidence, that you would have attained control of the object absent extenuating circumstances
–          International News Service v. Associated Press: news of current events is common property; lose property rights once news is published to the public; gain property rights through labor
C.    Creation
–          Cheney Brothers v. Doris Silk Corp.: “In the absence of some recognized right at common law, or under the statutes a man’s property is limited to the chattels which embody his invention. Others may imitate at their pleasure…”
–          Smith v. Chanel, Inc.: strong public interest in allowing copying; imitation is the lifeblood of competition
–          Moore v. Regents of the University of California:  conversion is wrongful exercise of ownership rights over the personal property of another;
i.                     Majority Opinion
(1)   No existing claim
(2)   Statute
(3)   Encourage research
(4)   Fiduciary duty claim
(5)   Patent law rewards inventors
(6)   Court says legislature should have ultimate say in selling of cells
ii.                   Concurring Opinion
Moral issue: commodification- a notion that there is something troubling about turning something that you can’t buy and sell into something that you can buy and sell
iii.                  Dissenting opinion
(1)   Bundle of rights (possess, use, exclude, dispose) isn’t all or nothing: some types of personal property may be sold but not given away, while others may be given away but not sold, and still others may neither be given away nor sold
(2)   If researchers could sell and patent sells, then he had to able to as well
II.         POSSESSION OF PREVIOUSLY OWNED THINGS
A.    Abandoned property: When the true owner voluntarily intends to give up ownership of property it is abandoned. It is unowned and the first possessor becomes its owner unless the circumstances of that possession are wrongful.
B.      Lost or mislaid property
–          Armory v. Delamirie: A finder prevails against all but the true owner OR prior possessor
(1)   Relativity of title
(2)   First in time/ prior possession matters
–          Voluntary bailment: leave something with someone and don’t return
–          Replevin: a lawsuit to obtain return of the goods, not damages
–          Hannah v. Peel: Possession of land carries with in general, possession of everything which is attached to or under that land; anything that you find in the course of your employment belongs to your employer
(1)   A man does not necessarily possess a thing which is lying unattached on the surface of his land even though the thing is not possessed by someone else
(2)   Constructive p