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Property I
Widener Law Commonwealth
Moringiello, Juliet M.

Property
2010

Part I.             An Introduction to Some Fundamentals
Chapter 1.      First Possession: Acquisition by Discovery, Capture, Creation
A.   Discovery
¨      Johnson v. M’Intosh 1823 U.S. – Johnson claimed valid title to land granted him by chiefs of certain Native American tribes;
①.        Discovery of Native American occupied lands of this nation vested absolute title in the discoverers, and rendered Native American inhabitants themselves incapable of transferring absolute title to others, though they had title of occupancy;
②.        Necessary to establish a stable title system
甲   Allows to trace title all the way back to the gov’t
乙   New inhabitants began to use the land to its highest economic use.
B.   Capture
¨      Pierson v. Post 1805 NY – Post was hunting fox; Pierson knowing this killed the fox and carried it off;
①.        Property in wild animals is only acquired by occupancy, and pursuit alone does not constitute occupancy or vest any right in the pursuer;
甲   One authority holds that actual bodily seizure is not always necessary to constitute possession of wild animals;
乙   Mortal wounding, trapping, intercepting so as to deprive them of their natural liberty will constitute occupancy;
丙   Here, Post only shows pursuit, so there was no occupancy;
②.        Rule here is to prevent “quarrels and litigation”
甲   Dissent argues property is acquired if pursuer is within reach or have reasonable prospect to take the animal
③.        Mere ownership of the land that an animal happens to be on does not constitute possession to give ownership, except as against a mere trespasser who goes on the land to take the animal.
¨      Ghen v. Rich 1881 Mass. – Rich purchased a whale at auction from a man who found it washed up on the beach; the whale had been killed at sea by the crew of Ghen’s whaling ship which left Ghen’s identifying bomb-lance in the animal;
①.        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;
甲   By usage of trade, the whale had been placed under sufficient control by capturing whaler so that it became his property;
乙   The common law rule for wild animals to be reduced to possession, it must be placed under control;
丙   Here, all that was practicable was done to secure the whale and trade usage was industry-wide, necessary to the survival of the industry and fair to all parties including the finder who received a fee.
②.        While local trade usages should not set aside maritime law, the custom can be enforced when it is embraced by an entire industry and has been utilized for a long time by everyone engaged in the trade.
甲   There is notice to the whole world concerning a claimed property right; bit if custom is too local, no notice to others not local
③.        Three elements: 1) Depriving of liberty; 2) Industry and Labor; 3) Notice
¨      Keeble v. Hickeringill 1701 Eng. – Keeble owned land containing a duck pond; he loaded the pond with decoys to seduce game to come to the pond so he could capture them; Hickeringill discharged a shotgun near the pond to scare away the ducks;
①.        Damages may be recovered for the intentional frightening of wild game off another’s land; no title to the game existed, but p was using his land in a lawful manner, and Δ interfered with this use;
甲   Capture and control, w/ first in time, guides legal analysis of ownership of wild animals.
乙   Ferae Naturae – wild animals
②.        Relative Title
甲   Owner –> T1 –> T2: T1 has better title than T2 and the whole world, except true Owner
乙   Generally cannot exercise “self help” to trespass/regain property
丙   Must use courts to enforce rights
③.        Externalities – side effects of the use of land (either social or economic)
甲   Negative externality – detrimental to others (ex. water pollution); difficult to get group of people to agree since cost of agreement outweighs benefit; difficult to get each polluter individually to stop
乙   Positive externality – beneficial to others (ex. attractive landscaping)
丙   Because of transaction costs, people won’t take externalities into account – creates freerider problem
丁    
[Mystery of Capital – private property rights can unleash the power of property to create capital if rights are stable; this is created by a stable system of land titles as a result of recording systems, and case law and statutes that back up the system; restraints on alienation are not good; land should be able to be sold and be used for collateral]
C.   Creation
¨      A person owns the fruits of his labor in consequence of having a property right in his own person;
①.        Any expenditure of mental or physical effort, as a result of which there is created an entity, vests in the person who brought the entity into being, whether tangible or intangible;
甲   It is yours to exploit (in theory)
2.    Property in One’s Ideas and Expressions: Intellectual Property
¨      Fly on the Wall
¨      Inter’l News Service v. Assoc. Press 1918 U.S. – AP sued to enjoin INS from publishing as its own news storied obtained from early editions of AP publications;
①.        Publication for profit of news obtained from other news gathering enterprises is a misappropriation of a property right;
甲   News itself is a collection of observable facts which obviously cannot be owned;
乙   When two competing for-profit news organizations are involved, the use of such news for profit is a misappropriation of the other’s pro

o migrant workers;
②.        Though an owner has the right to exclude, in this case the court limited that right; there was not unfettered right to exclude; property rights are not absolute
甲   Statutes limit the use of land; there are constitutional limitations;
乙   Some ownership interests are trumped when destruction would affect others’ property rights
丙   Preserved land, endangered species – cannot destroy
丁   Cultural property – a famous painting, can it be destroyed just because I own it.
Chapter 2.      Subsequent Possession: Acquisition by Find, Adverse Possession, Gift
A.   Acquisition by Find
¨      Armory v. Delamirie 1722 King’s Bench – p, a chimney sweep boy, found a jewel which he took to a goldsmith Δ for appraisal; Δ removed the stones and returned the piece to p w/out the stones, and refused to return them;
①.        The finder of lost property, although he does not acquire absolute ownership, does acquire title superior to everyone else except the rightful owner;
甲   Such title is sufficient property interest in the finder superior to others;
乙   Damages are the highest value of the kind of stones, unless Δ can prove otherwise;
丙   Trover – action in money damages; in real property equivalent of Trespass
丁   Replevin – action in equity (return of the property); in real property equivalent of Ejectment;
②.        Finder is in the position of a bailee
¨      Hannah v. Peel 1945 King’s Bench – p Hannah found a brooch at Δ Peel’s home while quartered there as a soldier; Peel had never occupied the home; p handed the brooch over to his commanding officer who gave to the police who gave to Δ; p maintained a claim of ownership of the brooch;
①.        General rule is that a finder of a lost article is entitled to it as against all persons except the real owner;
甲   An occupier of land does not in all cases possess unattached thing on his land even though the true owner has lost possession;
乙   Although a man possesses everything that is attached to or under his land, he does not necessarily possess/own things lying unattached on the surface even though not possessed by another;
丙   In this case, Δ never had prior possession, never having occupied the premises;
②.        Cites case: