-Property Outline-
**Fundamentals**
Acquisition by Discovery
v Whoever discovers land gets title to it, and this absolute title excludes all incompatible titles.
v Justification – To the Europeans, the Indians were not prior possessors – they were occupants.
v Landowners in America trace their ownership back to “patents” (land grants) from the government, which traces its right to the discovery of America by the white man
v Terra Nullius – whereby a nation may assert control of an unclaimed territory and gain control when one of its citizens (often an exploratory and/or military expedition) enters the territory.
v First-in-Time vs. John Locke and the Labor Theory
Johnson v. M’Intosh – Consistent w/ European thought. This ruling allowed the US to establish its legal right/claim to the land with out using force.
Acquisition by Capture
v General Rule
o To acquire a right to a wild animal, there must be:
o Actual possession; or
o Mortal wounding accompanied by continued pursuit; or
o Trapping with nets, toils, etc.
v Mere pursuit ≠ legal right to animal
o Note: sufficient step “to possess”may have stronger claim.
v Ferae naturea “of a wild nature” it is a “fugitive resource”
o Compare w/ natural resources
Pierson v. Post: Post was chasing after a fox when Pierson, knowing that fox was being chased, interceded, killed and carried it off. Holding: ownership to Pierson b/c Post did none of the above.
v Exception to Rule
o Placement of a distinguishable mark on wild animal and impossibility to do more, ownership belongs to 1 who has license to special mark.
Ghen v. Rich: ∏ is a whaler. The trade custom is to shot a whale w/ a bomb-lance that has the whaler’s special mark; once the whale floats to the surface or wash ashore, word is sent to whaler who removes it. However, in this case, the finder sold whale to ∆. Holding: ownership to ∏
v Reasons for Rule
o Preserves peace and Certainty
o Physical possession avoids the ambiguity of ownership (2 people may be chasing the animal; 1 may not know that there is someone else pursuing the animal); also, placing a distinguishable mark on the animal eliminates uncertainty.
v
Find
v Finder – Doesn’t have absolute ownership. But, he/she prevail against all but the rightful owner. Rightful owner can file tort claim for conversion or enrichment.
v Prior finder prevails against all subsequent finders.
v Protecting ownership (property rights) encourages the use of resources productively.
v Policy Issues
o Reward honesty through the reporting of a find; people otherwise wouldn’t report lost items which hurts society and true owners.
o Discourage wrongdoing; do not reward trespass and thievery.
v Bailments (Personal Property Only)
o Voluntary – Often contractual way of legally and temporarily giving away possession (e.g. laundry to a dry cleaners or valet parking).
o Involuntary – Assuming responsibility you didn’t ask for, finder is the bailee. You have certain rights to this item, but still a duty to return to the true owner.
