Property I Outline

 
Property I Outline – Finnegan – Spring 2014
 
 
Acquisition by Capture
A.      The Capture Rule – As a general principle, no one owns wild animals in their natural habitat. Under the common law “capture rule”, property rights in wild birds, fish, and other animals are obtained only through physical possession. The first person to capture or kill a wild animal acquires title to it.
a.       Elements to the Capture Rule –
I.        Intent to appropriate (taking something for one’s own use).
II.      Deprive of liberty and;
III.   Control
IV.    *Test is of general applicability. [There is a difference between wounding an animal on land as opposed to wounding an animal at sea.] i.         For example, hunting a whale and depriving it of its liberty suffices the title of first in time. Must convince the Trier of fact that there was control over the animal. Like state above, there is a difference between hunting an animal by land and hunting one by sea.
B.      First Occupancy Theory – “First in Time, First in Right” (Wild Animals)
a.       There may be many claimants to the wild animal, and there may be more than one to possess the wild animal, but it is the first to possess the wild animal that will claim title. Hence, “first in time, first in right”.
b.       For the purposes of Pierson v. Post and the capture of wild animals ownership equals possession.
c.       Example: F finds and pursues a deer, only to have it escape; F has no rights to the deer. If G now traps the deer in a net, he “owns” the deer. But even G’s ownership rights are limited. If the deer escapes from the net, G loses his rights and another hunter may acquire title through capture.
d.       Rationale: The logic behind First Occupancy Theory is to keep order in society, and that by using a “first in time, first in right” principle, it is easier to prove a claim – the first person to possess will win title and no one else.
C.       Constructive Possession – ratione soli
a.       Most courts will take the view that the landowner possessed the animal by virtue of owning the land, in other words claiming constructive possession, because what is important is who was in possession first. (Landowner has control over the animal without having physical control.)
I.        The claim of possession is only while the animal is on the land. Once the animal leaves the land, there no longer is a claim for constructive possession.
Acquisition by Creation
A.      The assertion is that if you create something – if in that sense you are first in time – then that something is most certainly yours to exploit because, “the foundation of proprietary rights is the expenditure to labor and money (which merely represents past effort)” – The trouble is that the fruits of your labor are not always yours alone to exploit, and you do not always have full rights of property in your own person.
B.      Quasi Property
a.       Some rights similar to ownership may accrue to a party who does an act, which benefits society as a whole.
I.        For example, the news of current events is common property. The facts coming from a news event are not a creation. Facts are created independent. As between competitors, fruits of labor will be entitled to one certain competitor. [AP asserting relief against its competitor INS will allow relief, but not against anyone else – relativity.] b.       Intellectual Property Law
I.        The law of intellectual property – primarily patent, copyright, and trademarks – grants limited monopolies over protected material. The point of the monopolies is to promote creative activity; the point of the limits is to advance competition (which in turn facilitates consumption by holding prices down).
II.      Patents
i.         Granted for processes or products that are novel, useful, and non-obvious. The laws of nature cannot be patented, nor can physical phenomena, nor abstract ideas. The law protects applications. No patent will be issued for the discovery of a new plant or mineral – although it might for the invention of one.
ii.       Once issued, patents last for a period of 20 years from the date of original application.
iii.     Patents are not renewable, and when they expire the process or product in question enters the public domain, where it can be exploited by anyone.
III.   Copyrights
i.         Protect the expression of ideas in books and articles, music, artistic works, and so forth.
ii.       Protection begins as soon as the work in question is set down in a tangible medium, and it lasts for a long time – in the ordinary case, until 70 years after the death of the author or creator, subject to a right in others to make “fair use” of the materials (such as relatively brief quotations in books, for example).
iii.     In order to qualify for a copyright protection, the material in question must be original, but (unlike patent law) need not be novel. For example, an author could gain a copyright on the Romeo and Juliet story as long as he made it up [originated it] himself and did not copy it from Shakespeare. Anyone who thereafter copied the author’s story would be infringing on his copyrights.
iv.     Facts narrated by an author are not protected by copyright, because the facts did not originate with the author; on the other hand, compilations of fact are protected (must include a minimal trait of creativity).
IV.    Trademarks
i.         Words and symbols indicting the source of a product or service; owners of marks are protected against use of similar marks by others when such use would result in confusion.
ii.       The marks arise out of use in commercial activity; they are lost, among other ways, when use is abandoned, or when they become generic, as in the case of aspirin.
c.       Unless a copyright, patent, or trademark has been obtained the common law is the default, and the design or idea may be imitated by the pleasure of others. (Doris Silk Corp. case)
Acquisition by Find
A.      The meaning of the phrase true owner depends upon who the other claimants are. Title, or ownership, is relative.
a.       B can have title as against C but not as against A.
B.      When a plaintiff sues a defendant in trover, meaning a common law action for money damages resulting from the defendant’s conversion to his own use of a chattel owned or possessed by the plaintiff. An action similar to trover is an action for damages (trespass).
C.       Replevin
a.       A lawsuit to obtain the return of goods not damages.
b.       The action similar to replevin in real property cases is an action for possession (ejectment).
D.      Bailment
a.       Is the rightful possession of goods by a person (the bailee) who is not the owner. A voluntary bailment occurs when the owner of the goods (the bailor) gives possession to the bailee, as when you leave your clothes with a laundry or check your coat at a restaurant or turn over your car keys to a parking lot attendant or deposit mail in the post office.
b.       In the case of found goods, the bailment is involuntary from the standpoint of the owner but not from that of the finder, who has, after all, chosen to take possession; by doing so, the finder assumes the obligations of a bailee.
E.      Definitions:
a.       Abandoned Property
I.        Property is abandoned when the owner intentionally and voluntaril