Property
I. First Possession: Acquisition of Property by Discovery, Capture, & Creation
Acquisition by Discovery
a. Johnson v. M’Intosh – nation vested absolute title in the discoverers, and rendered the Indian inhabitants themselves incapable of transferring absolute title to others.
b. Locke’s Labor Theory – U.S. entitled to land because if not the Indians would just allow it to go to waste and be undeveloped. Productive use of land grants title.
Acquisition by Capture
a. Pierson v. Post – Property in wild animals is only acquired by occupancy, and pursuit alone does not constitute occupancy or vest any right in the pursuer
b. THE GENERAL RULE – under the general rule, whoever is prior in time wins; i.e., the first to capture resources is entitled to them
c. wild animals – Wild animals must be captured to be owned. Mere chase is not enough and an owner of land does not automatically own the wild animals on the land.
i. Wounded beasts – If a wounded animal is trapped so that capture is certain, it is treated as captured
ii. Trained deer – Animals with a habit of returning to the property continue to belong to the captor as they roam
iii. Escaped wild animals – Original captor loses possession of escaped wild animals unless the subsequent captor has notice
d. Ghen v. Rich – When all that is practicable in order to secure a wild animal is done, it becomes the property of the securer who has thus exercised sufficient personal control over the wild animal.
e. Keeble v. Hickeringill – Damages may be recovered for the intentional frightening of game off another’s land
f. Demsetz Theory of Property –
Acquisition by Creation
GENERAL RULE
i. The purpose of recognizing property by creation is to reward labor. However, problems arise in defining “creation,” e.g., one’s labor mixed with goods or labor of another.
Property in One’s Ideas and Expressions: General
i. International News Service v. Associated Press
1. Publication for profit of news obtained from other news-gathering enterprises is a misappropriation of a property right
ii. Cheney Brothers v. Doris Silk Corp.
1. If a person cannot obtain a patent or copyright on its product, it cannot recover for the copying of it by others
iii. Smith v. Chanel, Inc.
1. Douglas v. Baird, Common Law Intellectual Property and the Legacy of International News Service v. Associated Press
2. Notes and Questions
iv. Nichols v. Universal Picture Corp.
v. Diamond v. Chakrabarty
vi. White v. Samsung Electronics America, Inc.
vii. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.
Property in One’s Person
i. Moore v. Regents of the University of California
1. A person whose tissue is used for profitable research and development without his knowledge may not maintain a conversion action therefore.
2. Notes and Questions: Property in One’s Person
3. Note: The Right to Include, the Right to Exclude
ii. Jacque v. Steenberg Homes, Inc.
iii. State v. Shack
1. Notes and Questions: More on the Right to Exclude
2. Note and Questions: The Right to Destroy
Chapter 2. Subsequent Possession: Acquisition of Property by Find, Ad
triggers the cause of action. There must be actual entry; if entry is on part of the land, the possessor is in constructive adverse possession
iii. open and notorious
1. the possessor must occupy the property in an open, notorious, and visible manner so as to give reasonable notice to the owner that the possessor is claiming dominion adverse to the owner’s rights
adverse and under a claim of right
i. a claim of right means that the adverse possessor is acting adversely to the owner
ii. objective test
1. the state of mind of the possessor is not controlling. The possessor’s actions must appear to the community to be acts of an owner. The possessor need not actually claim title, but must be occupying the land without permission
iii. subjective test
1. some jurisdictions interpret claim of right to mean the possessor has a good faith belief that he has title
iv. color of title
1. a few states require an adverse possessor to have color of title (an instrument that, unknown to the possessor, is defective; e.g., forged deed)
v. boundary disputes
if a neighbor occupies adjacent land, mistakenly bleieveing it to be his, the majority holds that he is an adverse possessor. Actual intent is not determinative (objective test). The minority view holds that there is no adverse possession unless the neighbor has an actual hostile intent to claim the land.
