Property I
John Dernbach
Fall 2007
1) Acquisition by Discovery Or Conquest
a) Acquisition by discovery entails the sighting or finding of hitherto or uncharted territory accompanying frequently a landing and a symbolic taking of possession
b) Conquest is the taking of enemy territory by force, followed by a formal annexation of the defeated property.
c) Neither are relevant today but show the problem with the Indians
d) Occupancy Theory and Principle of first in time
i) First in time used to be prevalent in early cultures. According to Grotius (Roman law) initially everything was held in common but avarice led to men claiming things and was generally accepted.
(1) Originally it was the ‘right to grab’ and whatever someone grabbed was believed to be their property
(2) English common and civil law claimed the taking of possession of unowned things is the only possible way to acquire ownership of them
e) Labor Theory and John Locke
i) In John Locke’s “Two Treatises of Govt” he claimed that “labor of his body and the work of his hands we may say, are properly his. Whatsoever then he removes out of the state that nature has provided, and labor in it, he has mixed his labor with, and joined to it something that is his own, and thereby makes it his property
f) Locke and Johnson v M’Intosh
i) Locke argued that the Indians occupancy of their aboriginal land did not involve an adequate amount of labor to perfect a property interest in the soil.
ii) For a time American lawyers viewed Indians as owners. Now they argue that the Indians had a right solely to occupancy and the land had was owned by them due to occupancy claims.
g) Property and Power
i) Property confers & vest power
ii) When you own property it comes with it the idea of soverenty of that land.
h) Johnson v. M’Intosh (Acquisition by discovery): Indians sold land to private individuals in contrast with the land the states were selling. The courts ruled that even though the Indians had occupied the lands, when the lands were discovered by the British, they took control over it. The Indians were allowed to remain on the land as peaceful occupiers but had no right to transfer the property because it belonged to the U.S. The only other way they could take the land was to fight them or have them sell it to the United States. They were the only people the Indians were allowed to sell to.
2) Acquisition by Capture
a) RULE: Mere pursuit does not vest title in the pursuer, unless accompanied by bodily seizure, mortal wounding, or physical capture.
i) Pierson v. Post- Post was hunting a fox with dogs and hounds. In pursuit of the fox he went through uninhabited wasteland. Pierson saw the fox past and that Post was pursuing, Pierson killed and took the fox. The courts ruled that under acquisition by capture, since it was open land and that neither person had been a trespasser and Pierson would’ve had to mortally wound the fox to own it. Inherent in this case is the idea of constructive ownership, if the fox had run onto the land of another person, the fox would have been the property of the landowner, this was to guard against trespassing.
(1) “mortal wound” approach: (1) is objectively likely to deprive the fox of his natural liberty; (2) shows a subjective “manifest intention” to seize the animal (i.e., not just for the enjoyment of the chase)
(2) “socially useful enterprise”—majority accepts that killing foxes is a socially useful enterprise; dissent elaborates that it protects activities of chicken farmers (wants to protect pursuit as possession to encourage more hunting; intruder should not gain from labor of first person)
b) American v. European rules of capture
i) The European rule of capture, in relation to groundwater says that if it is on your land use as much as you want, whereas the American rule of capture used is a fair use principle, where you should use as much as you need without impeding onto the rights of your neighbors.
(1) Sipriano v. Great Springs- In a case where a company was pumping 90,000 gallons of groundwater a day from a residential area and causing detrimental effects to neighbors in Texas (under European rule) the court held true to precedent, claiming that it was the responsibility of the legislature to regulate this area. They held that under the rule of capture, the bottling com
nd papers, etc. that is networked all around the world to gather stories quickly. They are paid by newspapers to publish their stories. INS is a NJ company that took AP stories form bulleting boards and early articles and reproduced them to compete with West coast additions, they had not paid the AP for the use. The Court held that is was solely a quasi-property right and the AP’s words were protected but news reporting was not, and this was considered an unfair trade practice but found no property right in the news.
ii) When it comes to personal property and there is not a copyright or patent in place, it is fair to copy the ideas of others in order to compete in the free market economy
(1) Cheney Bros v. Doris Silk- Doris Silk company produce a number of silks for the season and by nature, not all the silks do well when tested in the market and it is not feasible to get a copyright for the ones that do well. The Cheney brothers watch the market, see which silk does well and produce it at a cheaper cost and compete. The court held that it is a god thing for the marketplace and competition yields cheaper prices and it only sucks for the original creator w/o the copyright.
(a) RULE: Absence of common law or statute you must look somewhere else. A mans property is limited to the chattels which embody his invention. Others may imitate at their pleasure.
Smith v. Chanel-Court held that a perfume company, smith, could claim in advertisements that its product was the equivalent of the more expensive Chanel no. 5. The court held that imitation is the lifeblood of competition. It is the unimpeded availability of substantially equivalent units that permits the normal operation of supply and demand to yield the fair price society must pay for a given commodity.
