Select Page

Property I
University of Toledo School of Law
Chapman, Douglas K.

Property = Rights among people that concern things; a package of legally-recognized rights held by 1 person in relationship to others with respect to some thing or object
Bundle of Rights: (some of the primary rights associated with property)
1) Right to possess
2) Right to transfer
3) Right to use
4) Right to exclude
5) Right to destroy
How does someone come to own property?
First in Time: The 1st occupant owns the land
Labor-Dessert Theory (Locke): By mixing one’s labor with the land, one acquires rights to the land
Utilitarianism: Private property exists to maximize the overall happiness or utility of all citizens
“Property rights serve human values. They are recognized to that end, and are limited by it.” (Shack)
Law & Economics: Property exists to maximize the overall wealth to society 
The law enforces property rights to valuable resources to motivate people to use those resources efficiently
A.    By Discovery
In general, person who discovers land has title to it – a variation on cross-cultural “1st in Time” principle
Locke: The 1st person to improve the land can use it for as long as he likes
Johnson v. M’Intosh (US 1823)
Holding: Native Americans held only a “right of occupancy”; title to lands “must be admitted to depend entirely on the law of the nation in which they lie” (i.e. all property rights derive from the sovereign)
The gov’t gives us the entitlement to own things, and we only own them at the state’s sufferance
Court’s justification for decision:
Int’l Law of Discovery
Lockian – Gov’t can make better use of the land than the Indians
Domestic – Indians can only sell land to gov’t (VA statute)
Fait accompli – Society has settled expectation of how things work (* best argument)
Too many people have invested based on this chain of title; what’s done is done
Ultimately, this Machiavellian decision is the basis for property rights in the US
B.     By Capture
As a general principle, no one owns wild animals in their natural habitat
Under Common Law “capture rule”, property rights in wild animals are obtained only through physical possession
1st person to capture/kill a wild animal acquires title to it
1.                   General Rule
Pierson v. Post (NY 1805)
Holding: Pursuit (probable capture) itself doesn’t give a hunter title/possession of a wild animal; “certain control” (actual bodily seizure/mortally wounding & continuing to chase) is required
Concerned with formalistic approach (use ancient authors as precedent)
Dissent (Livingston): Once there’s a reasonable prospect of taking, then there is occupancy
On side of hunters/policy justifications; goal is to maximize killing of foxes
Custom: Jury of hunters; farmers as well?
Who has reasonable prospect of taking the fox
Hunting technology
Locke’s vi

r Hayashi
Judge looks at cases like Pierson, and determines that balls are different from foxes, and that contact really matters… BUT, ends up creating a sweeping rule for abandoned personal property/pre-possessory interests (rather than about balls specifically)
Holding: Orders ball sold and proceeds split 50/50
Is this an equitable remedy? Does it accord with our ex post intuitions?
C.    By Creation
Int’l New Service v. Associated Press (US 1918)
Holding: News is property in relation to competitors, but not against the public in general
Only protects you against competitors, not against non-competitors
Copyright principles: Can protect expression with property, but can’t obtain property rights in ideas
Lockian view of property: offended that INS was “reaping where it had not sown”
Cheney Bros. v. Doris Silk Corp. (US 1930)
Holding: A design, process, or secret isn’t property except as it is copyrighted or patented
INS only good law in narrow sense (as it applies to news gathering business); in everything else, unless Congress has stepped into the fray, then Cheney rule applies