Property
Principles change with societal needs. Durability -> Adaptability -> Protection
1. First Possession: Acquisition of Property by Discovery, Capture, and Creation
A) Acquisition by Discovery
¨ How do you begin to own something in the first place?
¨ Johnson v. M’Intosh – Title by discovery or conquest
à European right of discovery was transferred to the colonies
à Indians didn’t settle → only had right of occupancy
à Had to hold this way, or he would undermine US system of land
à Property as a “Bundle of rights”
B) Acquisition by Capture
¨ Pierson v. Post – Pursuit v. Capture
à Property in a wild animal is only acquired by occupancy, which pursuit alone does not constitute
à Need clarity of title
¨ Ghen v. Rich – Industry Custom – Exception to Capture
à Killing of whale marks first possession.
¨ Keeble v. Hickeringill –Malicious Interference v. Competitive Privilege
à Scaring off opportunity (ducks) is a violation
Þ You have opportunity to get ducks, so other should not maliciously interfere
à But there’s competitive privilege, if the means are ok
Þ Luring ducks onto my land
¨ Locke – Theory of Property Acquisition
à Come to own something by working on it
à “as much and as good left for others”
à Value interpretation – think of acquisition as productive process (surplus)
¨ Constructive Possession
à LO’s actual possession over wild animals on property (awareness unnecessary)
¨ Wild Animals
à Animal wanders off → lose rights
à Animal wants to return home → keep rights (animus revertendi)
à Escaped wild animals are free unless non-native
à Universal Custom – Ownership of offspring → owner of mother (nurturer)
¨ Relativity of title
à T trespasses on O’s land to capture a wild animal, and cages it on T’s land.
à Then T1 trespasses on T’s land and steals it for himself.
à T’s title is relatively better than T1, but O’s property is relatively better than T.
¨ Government regulation
à Gov’t acts like a trustee- has ‘police power’ to regulate, control, and prevent exploitation of natural resources
à Not true ownership
¨ Oil and gas
à Rule promotes gas production, but…
Þ Potential inefficiency in encouraging premature capture
à Unproductive Race
Þ If you have everybody drilling for same undergro
Þ Trademark – Right to the mark or name
(i) If I have a brand, consumer can retaliate against all within
(ii) Incentive to produce quality as the brand is hostage
Þ Right to Control Exploitation of One’s Name or Likeness
(i) Protected by Tort Law
(ii) White v. Samsung
1. “Maybe we’ve gone too far…we should allow people to make fun of celebrities without having to pay”
¨ Property in One’s Person
à Moore v. Regents of the UC
Þ UC took P’s tissue and sold it
Þ No property rights to excised cells, so no conversion
Þ Court wanted promote certainty of ownership for medical research
(i) Propertizing tissue would establish liability on anyone in research
(ii) COUNTER: If you were allowed to sell tissue, it would alleviate problems of people waiting for donors.
Þ DISSENT: Conversion should apply- using another’s tissue → Slavery
à Right to Exclude, Even in Absence of Harm
Þ Property Rule
(i) Taking → punitive damages
Þ Liability Rule
(i) You can take, but you must pay
