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Property I
University of Oklahoma College of Law
Helton, Taiawagi

Property Helton Spring 2017

Introduction to Fundamentals

First possession: Acquisition of property by discovery and capture

Property à any tangible or intangible good, idea or concept one can own through acquisition, possession, exchange/dispose or control.

Tangible à personal possessions & land
Intangible à intellectual property, concepts, ideas, copyrights, trademarks, goodwill in a business

Blackstone on property à “Property is the sole and despotic dominion that one claims and exercises over the external things of the world, in total exclusion of the rights of any other individual in the universe.”
Johnson v. M’Intosh

Marshal created a new title – Indian/Aboriginal title. This kind of title denied Indians the ability to transfer their land, but recognized their rights to use/occupy the land.
Marshall said the US had the authority to terminate Indian title
Indian title was invalid because of the doctrine of discovery, which stated that whoever got to unclaimed piece of land in America first claimed it in the name of European sovereign, who recognized it as held by the discoverer. This gives the discoverer the right to exclude others, including Indians.
Europeans owned better title to the land, but Indians retained right of occupancy. However, right of occupancy did not allow Indians to convey title.

Occupancy theory à “first in time, first in right.” This theory states that, generally, the first people to occupy the land have the best title to land. Marshall had to try to get around this by creating “lessor” Aboriginal title. He said that “wild,” “uncivilized” Indians can’t have first possession because discovery doctrine is based on Western land theories, which require improving land (Locke theory) etc.
Chain of title à tracking the ownership of something back to the original owner.
Terra Nullius à unoccupied land, aka, “land owned by no on”

Occupancy determined by “civilized,” socially complex people, like Christian European nations. Under this theory, Indians right to land was undermined because they were deemed “uncivilized,” making the land technically “unoccupied” by European standards.

Under discovery doctrine, Europeans may only take over land from original occupants under the following conditions.

Conquest à allowed only when a just war commences, which occurs only when acting in self-defense, and when the land was annexed into your country.

Note on cultural interpretation of possession

Europeans viewed land ownership as an exercise in dominion over land. This meant doing things to improve the land and excluding others from the land by using some form of boundary. Indians viewed the Earth as organic and believed that no one could “own” land. Instead, land occupants were merely there to look after/steward the land, leaving it as close to it’s original state as possible.

Five theories of property rights

Occupation theory à possession and exclusion of others justifies the societal protection of an occupier’s claims.

First in time, first in right

Labor theory à Locke theory that promotes the idea that we own our bodies and have a moral right to own the product of what our bodies produce through our labor, including what we produce by making changes/improvements to land.
Contract theory à private property rules are a contract, or agreement, between an individual and society as a whole. This contract protects established interests and expectations and helps regulate things, creating a more structured, well ordered society.
Natural rights theory à some natural/divine right/law requires that society protect property rights/interests.
Social utility theory à (Most relied upon today) Legal protection of private property promotes maximum fulfillment and protection of human needs. This is utilitarian and it promotes the idea that all laws should fulfill needs and aspirations. Thus, property laws are justified because they successfully satisfy the human rights and needs more than no property rights would.

Law of Capture

Allows an individual to perfect a private personal property right in a wild animal by establishing possession over the wild animal.
The law of capture promotes scarcity because there is not an infinite amount of wild animals. There is an infinite amount of air and water. The second we realize we live in a finite world with finite resources, scarcity kicks in and rules regulating property rights must be set into places in order to determine who gets what.
Pursuit is not capture.
Wild animals in their natural habitat are owned by no one.
Trespass gives land owner the exclusive right to hunt on his/her land.

U.S. Possession rule

Possession requires actual deprivation of animal’s liberty. O can be by killing, capturing or moral wounding the animal combined with pursuit & near certainty of capture. Unless someone actually captures, or kills a wild animal, he/she must establish capture somewhere between the practical impossibility of escape and certain capture being insufficient.

Ex. Fisher had 28 ft

Four statues of contested property


Owner voluntarily and purposefully relinquishes all rights to the object

Example: leaving out trash on the curb

Two elements for abandonment

Intent to abandoned. This is either stated or inferred from the circumstances
Act of abandonment


Property that the owner has unintentionally or involuntarily parted with

Generally, lost property goes to the finder in American law, unless the status of the finder and the place forces a change.


Property that the wonder voluntarily places with the intent to take it away, but forgets and leaves it where he placed it.

Generally, mislaid property goes to the wonder of the location where the property was mislaid.

Treasure trove

Gold, silver, currency, etc intentionally secreted by an unknown owner or the distant past.
British rule – treasure trove goes to King
American rule – two rules

Old rule – treasure troves are lost, and like all lost property, the finder gets it.
Modern rule – designed to discourage trespass, so treasure troves go to the owner of the land on which it was found because the treasure trove was embedded in the soil.

McAvoy. V. Medina

Plaintiff found money in defendant’s barber shop and sued to claim money from owner of shop.
A finder of property acquires no rights to mislaid property.
Court says the shop owner had duty to hold onto the property so that owner can recover it. Thus, incentivize shop owner to look after owner’s stuff. Therefore, the shop keeper’s possesses better title.

Why protect property interests?

Advances public order
Advances efficiency
Advances commerce and neighborly conduct
Increases likelihood lost items will be returned to owner
Easier to administer than defending possessions or carrying receipts to prove ownership.