Property I Outline

1)       undamentals of Property
a)       Acquisition by Discovery
i)        Johnson v. McIntosh:Plaintiffs, mostly British subjects and their heirs, claimed title to property conveyed to them by the Piankeshaw Indians prior to the American Revolution. Plaintiffs contended that their title ran directly from the Native Americans who owned the property and therefore it was superior to defendants’ title. Defendants’ land grant came directly from the United States government and the district court held that defendants’ claim was superior. The court based this decision on the idea that the Piankeshaw were not actually able to convey the land because they never “owned” it in the traditional sense of the word. The Court agreed and upheld the defendants’ title by land grant.
ii)      Boxes: Efficiency arguments: Europeans cultivate, preservation of Indian goals; Instrumental Ends: order-control v. extinction of Indians; Fairness: settlers know better vs. Indians had first possession;
iii)    Ownership/ property are conclusions but not end alls
b)       Acquisition by Capture
i)        The first person to kill or capture a wild animal gains control over it. Mere pursuit does not provide person with property or right.
ii)      Pierson v. Post: Post, a hunter, found and pursued a fox over vacant land. Pierson, fully aware that Post was chasing the fox, killed it himself. When Post sued Pierson for the value of the fox, the court held that Pierson was the true owner, because he had been the first to actually kill or capture the fox, however rude his action may have been
(1)     Boxes
(a)     Instrumental Ends: Post encourage pursuit and elimination, Pierson encourage better hunting techniques
(b)     Certainty: Post reason argue the facts; Pierson eliminate ambiguity
(c)     Justice and Fairness: Pierson first to convert fox for productive use; Post discovered, used resources to corner
(d)     Labor: Pierson: gun/bow; Post pursuer
(2)     Hypo: Post owns the land. Likely to be a different outcome. Argument for same result is that the fox is still mobile. The argument for a different result is that there is trespass, it is unfair, and it could create conflict. Trespass would introduce new rules/public policy.
iii)    Keeble v. Hickeringill: Keeble had a decoy pond that was used to capture wild ducks for profit. Hickeringill, discharged guns purposely to drive away ducks from the decoy pond. The court held that because H purposely hindered K’s trade H was responsible for damages. H would not have been responsible for lost ducks if he set up his own pond. The fact that the ducks were on K’s property had no weight, only that the pond was K’s livelihood and H was interfering with business.
iv)     Wild Geese example, pg 32. Farmer shoots geese, gov’t confiscates them, F sues for their return and gov’t wins. Next year farmer sues for the damage done by the geese. Gov’t wins again. In terms of policy the gov’t should win because they have a responsibility to protect resources but they shouldn’t be held responsible.
c)       Acquisition by Creation
i)        International News Service v. Associated Press: Valuable property in news can not be maintained by keeping it secret. So the matter of property in news does not pertain. The courts decision was decided upon the question of unfair competition in business. The injunction was held because INS took the bulletin board and early edition news from AP and sold it for profit. By doing so they were interfering with the normal operation of AP business. Thus, they were diverting the profit from those who deserved it (AP) to those who did not (INS).
ii)      Cheney Bros. v. Doris Silk: D copied silk designs, and then undercut price, plaintiff analogized case to INS v. AP but the court rejected it, holding that congress had indicated differently that there should not be a general rule based on INS v. AP
iii)    NBA v. Motorola: NBA sued Motorola for an injunction on NBA scores pager, court outlined narrow “hot news” claims, 1) P generates or gathers info at some cost, 2) information is time sensitive, 3) D use of info constitutes free-riding upon P’s investment, 4) D is in direct competition w/ P, 5) free-rider problem will so reduce incentives to produce info that existence of quality of info is threatened
iv)     Downey v. General Foods Inc: Downey held no property rights to his submission of “mr. wiggley” because it was neither original nor novel. Absent any contract there was no property right.
d)       Bodies and the Right to Exclude
i)        Moore v. Regents of the University of California: court held under the current law that Moore did not expect to retain possession of the cells and he did not have an ownership interest in them
(1)     Rationale
(a)     Possession/Ownership
(i)       No judicial report/analogy supports Moore’s claim of ownership
(ii)     California Law drastically limits continuing interest of a patient in excised cells
(iii)    The derived subject matters of the patent, aren’t Moore’s property
(b)     Inappropriate to impose liability
(i)       Fair balancing of relevant policy counsels against extending the tort (can’t punish societal benefiting actions ie; chilling research, inventive efforts)
(ii)     Problems are better suited to legislative resolution
(iii)    Tort of conversion isn’t necessary for patients rights (fiduciary duty, informed consent)
(2)     Dissent: property in the body and persons therefore deserve benefit
(3)     Concurring: moral concern over “free-market” or human tissues
ii)      Exclusion
(1)     Jacque v. Steenberg Homes: individuals have strong interest in exclusion and punitive damages may be awarded to deter intentional trespass
(2)     State v. Shack: Farmer was exluding migrant aid workers, workers were acquitted of trespass
(a)     Property rights
(i)       Serve human values and are limited by it
(ii)     Concerned w/ the disadvantaged
(iii)    Right in real property is not absolute cannot use property to injure others
(iv)   Migrant workers may see visitors of their choice
(b)     Hypo: Sister of the migrant workers comes to stay and find job. Farmer objects. How do you argue based on State v. Shack?
(i)       For Sister
1.       Broad interpretation
2.       Tenants have rights (migrant farmworkers are protected)
3.       Visitors cause no harm
(ii)     For Farmer
1.       Narrow Interpretation
2.       State v. Shack limited to aid/service workers
3.       temporary visitors are a distraction
e)       Demsetz: Theory of Property Rights
i)        See notes, and pg 35
2)       Subsequent Possession
a)       Acquisition by Find
i)        Finder acquires