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Property I
Vermont Law School
Loder, Reed Elizabeth

Reed Loder Property Spring 2012
 
Property Outline
 
            •           First Possession: Acquisition of Property by Discovery, Capture, and Creation
            •           Acquisition by Discovery
            •           Rule: Discovery of land in America by a European power gives absolute title subject only to the Indian right of occupancy. Johnson v. M’Intosh
            •           Acquisition by Capture
            •           Wild Animals
            •           Chasing:  “Mere pursuit” gives π no legal right to the animal and that ∆ had the right to interfere.
            •           Rule: A hunter must either trap or mortally wound a wild animal in order to acquire title to it.  Pierson v. Post
            •           Custom:  In a close case, the court may look at the customs or usages prevailing in the activity or trade involved.
            •           Rule: Title to a wild animal is acquired when a hunter apprehends the beast in accordance to custom.  Ghen v. Rich
            •           Business Competition:  The courts are more likely to be sympathetic to the interfering ∆ if he acts out of business competition rather than out of spite or malice.
            •           Rule: A person may not maliciously prevent another from capturing wild animals in the pursuit of his trade.  Keeble v. Hickeringill
            •           What is Property?
With respect to a thing, in legal institution… a relationship among people in relation to things.  3 way relationship, b/c state is a 3rd party/
            •           Lockean Proviso:
            •           You can do what you want as long as it doesn't affect others around you
            •           Waste as spoils: limited in property interest, because it diminishes someone else's ability to have the property – if you exhaust the common and take all of the water, you would be violating the Lockean Proviso
            •           Appropriated things through labor does not need to be run by gov't
            •           Locke’s Labor Theory
            •           Self-ownership thesis: man’s body → labor → objects mixed with labor (right’s based)
            •           Limitations: spoilage & sufficiency (Locke’s proviso)
            •           Problems: only theory of initial appropriation; no guidance as to scope of right
            •           Radin
            •           Personal property v. Fungible property
            •           Personal property is something “bound up” with a person
            •           Can't be replaced
            •           Family heirlooms
            •           Pets
            •           Sometimes houses
            •           People can go overboard with their personal attachments- obsession, fetishism
            •           Cars, electronics, etc
 
            •           Bentham (positivist)
            •           Law reformer- evaluating laws that were duly created
            •           Believed in changing law to protect treatment of animals
            •           Fighter for rights of women
            •           Educational reformer
            •           Law authorized by humans creates property
            •           Pain v. pleasure, pleasure for the greatest amount of people
            •           Only LAW creates property
            •           Until there's a legal system, there's really nothing that amounts to property at all.
 
            •           Acquisition by Creation
            •           Property in One’s Ideas and Expressions: Intellectual Property
            •           Patent: (Diamond) property interests in inventions “non-naturally occurring manufacture or composition of matter”
            •           Rule: Can't be purely natural
            •           Can't be something invented before (must be original enough to call novel)
            •           Has to be socially useful
            •           At most you get 20 years of property claim- prevents someone from copying what you made and marketing it. (relates back to the day you applied patent)
            •           Can't renew patent, unless you've added something novel to the property interest in the patent
            •           Policy: 
            •           Encourage discovery
            •           Balance incentive against the right of society to have the right to access it (widely available)
 
            •           Copyrig

      •           Rule: Punitive damages may be imposed for the intentional trespass to property.  Jacques v. Steenberg Homes, Inc.
            •           Policy: Nominal damages would be insufficient to deter trespassers and would in effect strip property owners of their rights
            •           Rule: Property rights may not be exercised so as to endanger the well being of others.  State v. Shack
            •           Adverse Possession
            •           Rule:  In order to acquire land by adverse possession, possession must be actual, it must be under the claim of title, and the land must either be enclosed or sufficiently improved. Van Valkenburgh v. Lutz (COAH= continuous, open and notorious, actual, hostile)
            •           Policy:
            •           “rewarding” AP's productivity
            •           “sleeping on your rights”
            •           Stability and order- quiets title
            •           Connecting
            •           Color of Title: refers to a claim founded on a written instrument (deed, will) or a judgment that is for some reason defective and invalid (as when grantor does not own the land conveyed by deed, etc)
            •           English Law: claim under color of title was not required.
            •           American Law: mostly not required
            •           Some states: color of title is essential to acquiring title by adverse possession.
            •           Some other states: not required… but has advantages for AP:
            •           Sometimes SOL is shorter for AP w/ color of title than those w/out.
            •           Actual possession under color of title of only a part of the land covered by defective writing is constructive possession of all that the writing describes.