Property I
Professor Kane
I. Chapter One Elements
I. Acquisition by Discovery: can be done either by actual discovery, or by means of conquest. (Johnson v. Mc’Intosh—Indian land—who can sell land?)
A. Discovery: “the sighting or finding of hitherto unknown or uncharted territory; it is frequently accompanied by a landing and the symbolic taking possession.” (p 10)
1. Res nullius: “a thing belonging to no one”
a. The only thing that could be discovered was a res nullius.
2. Terra nullius: “a territory belonging to no one” (a hitherto unknown territory) (p.11)
a. The only land that could be discovered was terra nullius.
b. European societies used to consider territory (terra) occupied by non-European societies terra nullius.
3. Discovery gave “an exclusive right to extinguish the Indian title of occupancy, either by purchase, or by conquest.” (p 11)
B. Conquest: “the taking of possession of enemy territory through force, and followed by formal annexation of the defeated territory by the conqueror.
1. “Character and religion of [America’s] inhabitants afforded a defense for considering them as people over whom the superior genius of Europe might claim governance over.”
C. Era of discovery (1450-1600)
1. Prior possession of land
a. Land that was occupied by aboriginal populations (natives, or savages) was not considered discovered land.
b. The occupancy of natives was not commonly thought to matter, therefore this land could be “discovered” by another nation, or entity.
D. Occupancy Theory and the principle of first in time:
1. First in time: the notion of being there first that somehow justifies ownership rights
2. Dates back to the Roman Law and Grotius and Pufendorf
a. Grotius claimed that the riches of the earth were initially held in common
b. Scarcity led to the institution of private property to preserve peace
c. Private ownership developed according to agreements
d. Eventually governments formed, and these governments regulated rules of acquisition
II. Acquisition by Capture:
A. Wild animals (ferae naturae) were property acquired by the animals’ occupancy of land
1. To acquire possession of animals:
a. If the first seeing, starting or pursuing such animals, without having wounded, circumvented or ensnared them, so as to deprive them of their natural liberty, and subject them to the control of their pursuer, will not be effective in provin
t classified as a competing business that weakens the market in which the tradesman operates (school house example)
iii. Scares away = action, lures away = no action
d. Rights of Natural Gas and oil:
1. Natural gases/oil are treated like wild animals: the possession of them belongs to ever owns the land on which they are captured, so long as they are on or in it, and are the subject to his control
2. When they escape and go to another’s land and then are captured, the title of the first owner is no longer valid.
3. When they escape and are “restored to their nature wild and free state” the dominion and no individual proprietorship of any person over them exists, and they resume their status as common property.
e. Rights of Water
1. Absolute Ownership: The owner of an aquafier can withdraw freely without regard for neighbor.
2. Water introduced by A’s water pump into B’s well, becomes the property of B while it remains in place. Nowadays, damaged
