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Property I
Wayne State University Law School
Bartell, Laura B.

Property with Laura Bartell
Wayne State University Fall 2009
Property by Dukeminier
Property Outline (Midterm)

When something is previously not owned, how is ownership determined?

I. Creation of Property

A. Discovery – the sighting or finding of uncharted territory. Think the cliché of person landing and placing flag. “I claim this land for…”

Johnson v. M’Intosh (pg. 3):
Facts: Johnson got his title from Indians in 1773 and 1775. M’Intosh got his title from the US Government, after the sale of the land to Johnson. Johnson was not recognized as the owner, he subsequently brought suit to District court of Illinois. Since there was no Circuit court of Appeals, Johnson filed a writ of certiorari, which is a document asking for judicial review. This meant going directly to the Supreme Court. He brought a cause of action for ejectment against M’Intosh.
Issue: Did the Indians own the land? If yes, were they able to transfer title to Johnson?
Holding: Courts said no. British discovered the land, which gave them title. Title is the right to gain possession, not to actual possession. They, and only they, could then gain the possession by conquest or purchase. US gained title to land from British in Treaty of Paris. Indians have right of occupancy, not right to convey. The Indians could only convey to the country with title, in this case being the US.
Commentary: The court upheld the actions of the executive branch, despite reservation from the bench (John Marshall), because he was caught in the tide of nascent property law. He couldn’t fight the tide. Marshall thought the policy was pretentious. Currently, Discovery is out of date, but the idea persists.

First in time and European principles of discovery: Historically, first in time gained title. This only applies to Europeans. This concept was very important in the exploration of the new world. It was a way of keeping the peace between the nations of Europe.

Pros to first in time:
Obvious, clear, easy to ascertain
Encourages discovery
Prevent conflict
Historical precedent
Low cost

Cons to first in time:
Rewards those with resources to discover
Doesn’t give rights to natives
Doesn’t help people who need land
Ambiguous boundaries
Subjective – “first”? “Possession”

Alternatives to First in Time:

Labor Theory: John Locke proposed labor theory, which is seen as an alternative to first in time. The notion is a very problematic one. Possible questions and considerations: How much labor is necessary? What is labor? What if multiple people labor? This line of thinking nevertheless influenced the Johnson decision. The Indians were not seen as owners because they didn’t perform the requisite labor.

Conquest: This method is obviously problematic.

Occupancy: concomitant to it are many of the same problems as labor theory.

B. Capture – At what point have you established right to something by capture?

Pierson v. Post (pg. 17):
Facts: Cause of action is trespass on the case. Trespass on the Case (Writ of Trespass on the Case), as defined by Wikipedia, is one of the two catchall torts from English common law, the other being general Trespass (Writ of Trespass). The latter deals with trespass against person and the former with all other actionable offenses. Post was hunting a fox. Pierson came in, killed the fox, and then claimed it as his own. Post sued Pierson and won at trial. Pierson predictably appealed.
Issue: Who owns the fox?
Erratum: Occupancy is the term used to describe means of property interest.
Holding and Analysis: Having no analogous case law in New York, nor any analogous case law in any other jurisdiction – including English law, they referred to writers of antiquity. The courts (erroneously) determined that all English cases dealt with ratione soli. Writers of antiquity agree on one point, physical corporeal possession is unquestionably occupancy. Some writers contended that mortally wounding the animal with continued pursuit also qualify as occupancy. Barbeyrac describes the notion that deprivation of natural liberty is also valid. Court combines the last two together slightly. Injured to the point that there is a deprivation of its natural liberty – my observation. The court believes that this ruling would encourage competition. Same as dissent, we want foxes dead. Also, ruling that mere pursuit qualifies would create lots of litigation.
Dissent: Judge Livingston wouldn’t look to ancient writers; he would refer to the custom of sportsmen. He also claims a policy issue; courts ought to encourage destruction of animals. Majority’s ruling may dissuade hunters from hunting – public good. His position: a pursuer who is within reasonable pursuit or in a position to likely capture it may retain property rights.

Occupancy: 1 – Corporeal possession. 2 – Mortally wounding and continued pursuit.
3 – Deprivation of natural liberty rendering escape impossible.

Ratione Soli: The notion that owner of property owns the animals on his/her property.

Popov v. Hayashi:
Facts: Popov caught Barry Bonds’s ball. He was overwhelmed by a mob engaged in violent and illegal behavior. Popov intended to establish and maintain possession of the ball but at some point it left his glove. Hayashi was standing near. While on the ground Hayashi saw the loose ball and took it. Popov sued Hayashi for conversion.
Issue: Did Popov have an interest in the ball, despite never having possession?
Holding: Kinda. He never had it fully, so replevin is inappropriate. But he had some interest. Thus the ball was sold and the proceeds split. Neither man’s share covered their attorneys’ fees.

Ghen v. Rich (pg. 23):
Facts: Ghen shot whale. Three days later Ellis found it. He auctioned it off instead of notifying Provincetown. It was sold to Rich, who shipped off the blubber and tried the oil. Ghen hears of the whale and goes to claim it. From the marking, it was able to be determined that it was killed by Ghen. He brings action against Rich.
Issue: Does Ghen retain the right to ownership of the whale despite not having possession?
Holding and Analysis: The court refers to both precedent and custom of the industry. Ghen has a right to the whale, despite not having corporeal possession.
Policy: The customs of the whaling industry are there to help incentivize whaling. If people could just take the whales, then the whaling industry would die overnight.

Custom and Usage: applies when the custom embraces the entire industry, has lasted a long time, and has a very limited application, e.g. Ghen applies only to whaling.

Keeble v. Hickeringill (pg. 27):
Facts: Keeble had a decoy duck pond. Hickeringill went there and fired rifles into the air in order to scare the ducks. Keeble brought suit.
Issue: Was Hickeringill’s interaction inappropriate and did they make him liable to pay damages?
Holing and Analysis: Hickeringill was interfering with Keeble’s livelihood. This is unacceptable. Fair competition is allowed, interference with livelihood is not. Does not rely on ratione soli at all.
Policy: This protects the industry but doesn’t bar unfair competition.

Problems with common ownership: Community owned property has consequences. There are some problems. Assume we have a community of 100 people who own a thousand goats. Each person owns 1/100th of 1000 goats. Person A takes a goat for own use, then you have 100 people in the community and only 999. Person A then has 1 and 1/100th of 999 the goats. Everyone else has lost 1/100th of a goat. This doesn’t mean that were you to have this setup, that people would go out and take all of the goats. This system is really thrown out of whack by introduction of outside market. A person outside the community comes to the group and says it wants to buy goats. A suddenly has an advantage.

Holdout – someone who doesn’t agree with everyone. Ways to solve: pressure, either economic or social. Social has no cost, economic obviously has a cost.

Free rider – someone who doesn’t give their share because of a belief that others will cover it adequately.

Externalities: when the costs are external to the person and are thus thrust upon others. Only an externalities as long as it’s unaddressed. If A is engaged in an activity that costs B $100, B might suggest another method that could reduce his cost and would offer A $50 to do it. It ceases to be an externality once B goes to A. Even if A doesn’t accept B’s proposal, it’s not longer an externality.

Solution to common ownership problems: Other solution is to privatize. Everybody gets 10 goats. If each person has 10 goats, then they’ll internalize the costs. You don’t have to worry about any o

niversity hospital. He agreed thinking that it would be destroyed. When it was used for profitable research, he sued for conversion. In order to prove conversion, Moore had to argue that the spleen was his property. Defendant made a motion to dismiss. They claimed that the cells are not his property. Appeals court overturned district court. Supreme court overturned appeal courts decision.
Holding and Analysis: Once they extracted he had no right to possession. First thing, they said no cases deal with this. Privacy doesn’t involve cells. Distinguished the two. Second, California has laws that deal with the disposal of potentially hazardous material. It strips tissue of its property vestiges. The fact that the state regulates it makes it not property. Not the strongest argument because the state does regulate private property. Cars, guns, etc. Finally, the court commented that Moore’s cells weren’t what was being used, but his cell line. Nothing to distinguish it from any other cell line.
Policy: A different holding would threaten medical research. Conversion is a strict liability tort, meaning that you are liable even if you’re unaware of the lack of consent on the patient’s part. Going back to the Learned Hand notion, courts shouldn’t set up a common law copyright. Leave it to the legislature.
Mosk’s dissent: One part, he describes the “the legislature should deal with it” as being a cop out. He equates the exploitation of person’s tissue for personal gain. That is like slavery. Scientists are unjustly enriching themselves in this situation. Both sides in this case are very driven by policy. Majority opinion is factually very shaky.
Erratum: Is it improper for the judge to base decisions on policy? Judges can’t be blind to the consequences of their decisions. Policy considerations

The Bundle of Rights: Property rights have been described as a bundle of rights – possession, use, exclusion and disposal.
Major right in bundle of sticks (property): right to exclude. Determine who may use them and for what purpose. Even if courts ruled favorably for Moore, either the court or the legislature could still impose limits on their right of property.

Limitations on the right to exclude: One has the right to exclude another (Jacque) so long as the exclusion does not interfere with the rights of another (Shack).

Jacque v. Steenberg Homes (pg. 87):
Facts: Steenberg Homes used Jacque’s land to move a manufactured home. They knowingly trespassed. District court said, yes trespass occurred but no damage was done so nominal damages ($1). Jury also awarded punitive damages ($100,000). Punitive damages: damages that are to punish someone rather than to compensate person who brought suit. Judge set aside punitive damages. Thinking: If there was no harm (nominal damages) then there can be no punitive damages. The Appellate Court restored damages, thus reinforcing the right to exclude.

State v. Shack (pg. 88):
Facts: This is a criminal case because it’s State v. Shack. Charges are criminal trespass against Shack. Shack wanted to visit migrant workers but was barred by owner. They visited anyway and owner pressed charges.
Holding and Analysis: Judge came out and said that there was no right to bar entry. This was not trespass. Farm workers, living on the property, had a right. Who decides whether or not something is trespass? In this case there was state law allowing government to go into the property. This is a clear policy decision.