ORIGINAL TITLE TO PERSONAL AND REAL PROPERTY
I. Some Fundamental Ideas about Property
Traditional Rights of Property.
1. Use
2. Transfer
3. Possession
4. Exclude
5. Occupy
Rule of capture: first person to possess a thing owns it i.e. first in time, first in right. Promotes labor, protects investment in resources, encourages people to bargain with each other rather than fight.
C. Themes:
1. How do we decide something is private property, and what are the implications?
2. How do lawyers take traditional concepts and legal tools to create new ways of owning property?
3. Rules of property evolve slowly and archaic rules linger; old concepts may have outlived usefulness.
D. Means of Possession
1. Discovery – Johnson v. McIntosh
2. Capture/conquest – Pierson v. Post
3. Creation-
a. Statute/law/regulation – Alliance against IFQ’s v. Brown
b. Identity – “Greens – Collards and Golf”; Joyce v. GMC; White v. Samsung
c. Life forms/Accession – Moore v. Regents of Univ. Cal.; Biotech Century article
4. Grant from State
5. Purchase
6. Accession
7. Subsequent Possession
a. Find
b. Adverse possession
II. Land: Discovery, Conquest, Grant from State
A. Johnson v. McIntosh (1823) – (Indians) pp. 6 and Assign. #1, Supp. #1
1. Indians had no right to convey lands; only government has that right.
2. Held that Indians never actually possessed land, merely OCCUPPIED it. (Locke theory)
3. US Supreme Court legitimated the violent manner (conquest) by which European powers acquired property rights to North American land from Native Americans.
4. McIntosh set up the valid root of all land titles; source of legal titles in US intended to minimize future property disputes.
5. First in time, first in right = with respect to a grant from an accepted legal entity.
6. All laws are culturally contingent; activities that are important to cultural goals – e.g., expansionism, commerce – will be legally recognized and sanctioned.
Rule: Government has the complete and ultimate right to title.
Policy: Encourage agriculture and development of the land for the use of society. Need way to organize land. Balance of powers – executive branch wouldn’t have enforced otherwise.
III. Ferae Naturae- Acquisition by Capture
A. Wild Animals Pierson v. Post (1805) – (Fox) pp. 67
1. Ownership went to the one that killed, mortally wounded or caught it.
2. First of possession is the root of title. First in time of possession (kill it)
3. If something is not owned, it belongs to the first person who captures it.
4. Animals – ferae naturae – wild animals were possessed only when captured.
a. If wild animals escape they revert back to ferae naturae
5. Rule of certainty (animal brought under certain control) = fosters competition; ease of administion
6. Constructive possession = If Post possessed the land in question, he would have constructive possession over the fox.
Rule: Law requires capture, not mere pursuit.
Policy: Provides certainty and stability in society (certainty of specific rules); reward socially desirable activities; encourage capitalization, rewards efficiency
Cons: today leads to over capture of animals, overinvestment in relevant technology, animals have become endangered
Tragedy of Commons: b/c no individual incentive to preserve natural resources, leads to depletion of common natural resources
B. Wild animals and Custom Captain Ahab Problem
1. Ahab, owner of whaling ship, killed whale. But, because whales float to surface several days later, they can’t be immediately captured. Defendant found whale and started boiling down the blubber to oil. Who gets whale and oil?
2. Generally, to the Captor go the spoils. But a more effective custom in a hunting trade may dictate a different result.
2. Encourages whale hunting by allowing for peculiarities of the practice; dead whales heavy and take days to surface; allows hunters to kill, look for other whales, and still have possession of original whale when carcass surfaces.
3. Ahab had “constructive possession” of the whale. (Control over a property without actual possession of it).
Rule: If you kill a whale, mark it, and follow it and someone else gets it, it is still yours.
Policy: Customary at the time to encourage whaling to get the oil, if the whaler didn’t have constructive possession and a right to get the whale back, no one would go whaling.
C. Animus Revertendi: wild animal with habit of return to captor belongs to capto; rewards domestication
D. Escaped Wild Animals: escaped wild animal with no animus revertendi open for capture unless not native to area ergo other hunter can’t capture b/c has notice that belong to someone else
E. Limits on capture of animals: today statutes regulate if, when, how, how many, animals can be captured
F. Oil and minerals: Hammond v. Central Kentucky Natural Gas Co. (1934) pp. 83
1. Oil and gas are not the property of anyone until it is reduced to actual possession by extraction.
2. Wild animal analogy = mineral ferae naturae; when the gas is returned into the earth it resumes its natural habitat and therefore no one owns it until once again extracted and captured.
3. Blow out, catch fire, or otherwise wasting natural resources has negligence damages for destroying common resources
4. Most states have statutes regulating number of acres req’d for wells and apportioning profits among surface owners within unit; unitization prevents over use
Policy: Encourage the extraction of natural resources for the use of society.
Enclosure of public commons.
G. Water:
1. Percolating water can be pumped for own or commercial use w/ impunity as long as w/o negligence or malicious intent
a. western states require it to be for reasonable use of water
2. Surface water can be captured by land owner and used w/o unnecessary harm to those below him
3. Expelling through common enemy doctrine (expel however necessary) or natural servitude doctrine (lower lands servient to natural flow of water)
4. Steams and lakes have riparian rights allow right to use all water flowing past one’s land contiguous to the water; prior appropriation in western states allows users rights certain amount before subsequent users
IV. Law of Accessions – when you can no longer recover the stolen item in its state as you had it.
A. Extension of Locke’s Labor Theory. When one person adds to the property of another – through labor; by labor and the addition of new materials; who is entitled to the final product? Is a person entitled to damages equal to value of his contribution?
1. Mussel shell example: Shells taken from another’s stream, made into buttons.
Rule: Where A adds labor to B’s raw material, courts usually award final product to owner of raw material unless A’s efforts have significantly increased its value to make it unfair to award the final product to B. Most states also require the A have acted in good faith, not knowingly.
B. Physical Identity Rule: Has the original material been so transformed that it is no longer recognizable? If so, original owner may not be able to get the original property back but may claim for damages. E.g. someone takes my grapes and make them into wine, I can’t get the wine back but could sue for damages.
C. Relative Value Rule: Object has been changed, who contributed the greatest value? E.g. the owner of a slab of marble could recover for the value of the slab of marble, not the value of the newly created sculpture from the marble that was inadvertently taken as the wrong piece of marble.
V. Finders and Bailments
A. Owner does not lose title by losing property; finder/ thief has rights superior to everyone but prior possessors and owner
1. Finder/ thief has right of possession, but not right of ownership.
Finder v. Owner of premises
1. If finder trespasser, owner of premises prevails
2. If finder an employee, owner of premises prevails but this discourages honesty
3. If finder on premises for limited purpose, owner prevails.
4. If object found under soil, owner prevails.
a. Exception: treasure trove i.e. gold, silver, money intentionally buried with intent to
return to claim it; mixed results and government if on state waters
5. If object found in private home, owner prevails.
6. If object found in public place, depends on whether lost, mislaid, abandoned, and statutes.
B. Accessions: if A takes B’s property and adds significant value to it through labor or labor and new materials so that it’s unjust to require its return, A gets title by accessions and B can only sue for value of original item
1. If A innocently added labor and materials to B’s property, it goes to owner of principle material
2. Confusion: no labor added but goods are intermin
perty to Moore.
4. Conversion is actual interference with ownership or possession of some property interest.
5. Moore’s body was a vast “commons” of genes. The first to “capture” his cells controls them.
Policy: Parallel to Pierson v. Post; the entrepreneurial nature of science must outweigh the private property rights of individuals – even to their own bodies. Promote research.
Policy: Economic colonialism like in McIntosh and profiting from it.
Policy: Encourage future researchers and drug companies to advance research. Speed up research incentives to better society by discovering cures.
Policy: Colonization of the human intellectual and physical commons. Enclosure of Public commons – that which was open and public is being closed and privatized. Parallels McIntosh, Pierson, IFQ’s.
Policy: Court making policy and what are the relevant policy considerations making this policy:
§ Certainty/ stability of society
§ Socially useful
§ Fairness and morality
§ Should the court decide? Or
§ Should legislature decide this through informed data?
D. Biopiracy/Biotech Century
1. Is a live human made microorganism patentable?
2. Precedent: living things not patentable if they are naturally occurring products of nature.
3. Chakrabaty established precedent: developed oil-eating microbe.
a. Holding: genetically engineered products, alive or not – including micro-organisms – are patentable. Why, because some micro-organisms are the product of chemical applications, completely controlled by human ability and intervention.
4. Patents: Right to exclude. Use of broad descriptions gives way to monopoly, which would discourage expenditure of time and money on pursuit of new inventions, life forms, etc. Market control. Patentable: useful, non-obvious, novel (to others of same skill)
Policy: Property law should not preclude the social needs of the greater society. Court looking towards entrepreneurial direction of medical research. Sharing of information versus Protection of ideas. In effect, “enclosure” of the genetic commons.
Persona, Privacy, and Publicity
E. Collard Greens – Persona (collard greens advertisement w/Golfers) Assign. #5, Supp.#8
1. Right of Privacy: to be free from unwarranted publicity, or the unwarranted appropriation or exploitation of one’s personality. Exceptions: legitimate public interest, self-made public character, part of community history, in public record, based on fact
2. Right of publicity: type of right to privacy
3. Statutory Right of Publicity = the knowing use of an actors name or likeness; on products, merchandise, or goods; without the express prior consent of the actors. (visual comparison without context) “likeness” determined w/o context.
3. Common Law Right of Publicity = the knowing use of an actors identity or personality without prior consent. (the use of a distinctive race car associated with a professional driver, used in an ad). “identity, personality”
4. Lanham Act: unfair competition; test is likelihood of confusion.
Policy: Right of Publicity = protection of the commercial interest of celebrities. “The famous have the exclusive right during their life to control and profit from the commercial use of their name and personality.” Encourage creativity; idea of labor theory; fairness element.
Right of Publicity has a right to exclude.
F. Smith v. Doss- Right to Privacy
G. Carson v. Here’s Johnny – Right to Publicity
H. Cardtoons v. MLB Players Assoc.- Right to Publicity and Freedom of Speech
