PROPERTY OUTLINE
I. First Possession: Acquisition of Property by Discovery, Capture, and Creation
A. Acquisition by Discovery
1. Johnson v. McIntosh (p. 3) U.S. 1823
a. Indians sold land to plaintiff and U.S. sold land to defendant. Plaintiff sues to eject defendant from land and Supreme Court rules in favor of defendant. Application of the discovery rule over the first in time rule. Indians can’t convey land because their interest in it is not absolute, only possessory. Absolute title originated in Europeans who discovered America (U.S. now has ultimate title and can grant land and eject Indians from the land). Indians only have possessory title (they can occupy the land, possess the land, and use the land, but they cannot transfer the land). Discovery rule (Europeans have ultimate title and can extinguish Indian title) is recognized internationally. An alternative to discovery rule is acquiring title by conquest — title acquired and maintained by force (Marshall held that the Europeans, and subsequently the U.S. acquired title by discovery).
1. Underlying policy of the case
a. Importance of certainty in property system.
b. All of US property is founded on discovery principle – increasing weight of history could not be overcome. Claim of US trumps Indians as prior possessors b/c Indians were not a sovereign nation (no valid claim to discovery), Indians were occupants, not possessors (title and possession are not the same thing).
c. Possession affected by cultural understanding (Indians never possessed the land under the European understanding of the term).
B. Acquisition by Capture
1. Pierson (defendant) v. Post (plaintiff) (p. 20) NY Supreme Court 1805
a. Action of trespass against defendant. (Action of trespass is a direct wrongful act against plaintiff’s property and action of trespass on the case is an indirect wrongful act against plaintiff’s property). Plaintiff was in pursuit of fox when defendant came up and shot it before plaintiff could. Plaintiff alleges interference. Fox is not plaintiff’s property. Rule: Mere pursuit does not give title to a wild animal. Must exercise dominion and control over it (capture, mortal wounding, or trapping). An animal mortally wounded or trapped so that capture is virtually certain is treated as captured. An animal only in the process of being trapped without the door being snapped shut has not been captured (it is not
Hickeringill (p. 31) Queen’s Bench 1707
a. Action of trespass against the case (indirect wrongful act against plaintiff’s property). Plaintiff had a duck trap set up on his pond and defendant shot at the ducks to scare them away. Theory of malicious interference with trade – a person has the right to perform his or her trade (plaintiff was engaged in a lawful and profitable act and defendant interfered with that). Judgment favored plaintiff. This opinion suggests that possession doesn’t matter, only malicious interference with trade matters. Ordinary competition is not malicious interference with trade, but defendant’s attempts to scare fowl away from duck pond by firing gun were malicious interference with plaintiff’s trade.
1. Underlying Policy of the Case
a. Promote competition in the industry (if a person is in the process of trapping animals, a competitor who also wants to capture the animals can interfere with the other person’s activity and try to capture
