Property – Wiggins
Spring 2013
1. First Possession
Discovery
– John v. M’Intosh (Discovery)
o Facts
§ Indians transfer land to p, Government gives land to D
§ Hold for D; Indians are occupants, no right to transfer absolute title
o Chain of title
§ Indians (first possessors) à British à U.S. Government à D
Discovery Aspects
– Gives absolute title to government by whose subject it was made
– Necessary to avoid international conflict between competing powers
– Interest in protecting Indian sovereignty and possessor claims
– Protect interest in Federal Government in exercising sovereignty over Indian nations and regulating land claims
– Ultimate Title / Absolute Title
o Power to convey
o Power to grant lands
o Extinguish through purchase or conquest
Capture
– Pierson v. Post (Capture)
o Facts
§ Fox killed and obtained on wild and uninhabited land, owned by someone but treated as un-owned public land
o Court treats as issue of possession, who has property right of fox
§ Does Post by pursuit with hounds of a fox gain property right to sustain action against Pierson for killing him?
o Pursuit does not give right in property of fox
o Need physical taking of fox (actual killing / mortally wounding / catching)
o Policy
§ Certainty / Preserving Peace and Order / Avoid Litigation
o Dissent
§ Can acquire property of wild animal if reasonable prospect of capture
§ Policy to encourage pursuit of foxes
o First to kill or capture vs. first to pursue
– Ghen v. Rich (Custom & Capture)
o Courts will decide cases based on customs of industry
§ If small and specialized, useful service, standard to industry
o Can be counter-productive to society in long run.
– Keeble v. Hickeringill
o Cannot have malicious interference with trade
Policy and Theories
Relative Title
– Have better rights than other
Don’t Want to Encourage Self-Help à Must Use Legal Claim to Get Stolen Property Back
Doctrine of Animas Revertande
– Original owner of animal can prevail if animal has habit to return.
Cohen Theories
– Four Justifications for Private Property
o Occupancy
o Labor
o Economic Theory
o Personality
Formalism
– Mechanical
– Precedent cases
Instrumentalism
– Focus on public policy
Demsetz Essay
– Economic property theory
o Private property is for efficiency reasons / efficient resource allocation
– Tragedy of the Commons
o Open access resource will degrade, no one has incentive to reduce consumption
– Demsetz Externalities
o Externality is an economic consequence of one’s action
– Rule of Capture
o Fugitive resource is common property until you bring into your possession
§ Can lead to overconsumption, overinvestment in capture technology
o Quota system response to this
Policy
– Certainty
– Peace and Order
– No Incentives to Trespass
– Promoting Productive Competition
– Promoting Domestication and Cultivation of Goods
– Reasonable Reliance
Creation
– Cheney Brothers v. Doris Silk Corp.
o Remedy for alleged copying / reap where you haven’t sown
o Argument for Protection of Creators
§ Labor Argument / Reap what you Sow / Property interest in your creation
§ Economic Theory
o Reasons for Not Giving Creator Property Rights
§ Concerned about monopoly
· Support competition / drive price down / too much power to creator
§ Instructional role; only Congress has this power
· Courts should refrain from recognizing new property rights
– Moore v. Regents of the University of California
o Leukemia patient à Cells used for research / to make lots of money
o Conversion
§ Unlawful exercise of ownership rights over the property of another
o No property interest in cells
§ No expectation of retention of ownership when removed
o Policy
§ Would discourage research /
session
– Sleeping Policy
o Lazy, non-working owner doesn’t deserve property
– Earning Policy
o If you use and earn property
– Continuity
o Ensure true owner has time to discover and do something about adverse possession
– Quiet Title / Certainty
o Reduce dispute for title
Policy Against Adverse Possession
– Libertarian
o If an owner wants to do nothing with their property it is their business / law should not involuntarily transfer private property rights.
– Efficiency / Anti-Improvement
o Sometimes the highest and best use of land is non use
– Difficult to Reconcile with First-In-Time Principle
o Legal theft first possessor
How Hard Do You Want To Make Adverse Possession vs. How Easy à Based on Policy
Color of Title / Constructive Adverse Possession
– Title is defective, not pure
– Courts can be sympathetic to those who rely on an invalid deed
– If true owner is in physical possession of property, does not take away claim à Original owner wins
– Must be entry against owner of land in question
o Owner must not be in possession
– Mannillo v. Gorski
o Mistaken belief that you have title satisfies adverse possession
§ Majority
Tacking
– Each adverse possessor who possesses property less than 10 years a piece can tack ownership together to meet 10 year standard if…
– Can show that adverse possessor and predecessors are in privity
– Privity
o Voluntary transfer of estate or possession
Continuity (In Regards to Tacking)
– Get possession if you use property as any owner of property of like-nature would have used it
