Module 1: First Possession, Discovery, Conquest

Question 1

Ways to acquire real property without a purchase and the top two that we focus on in class

Answer 1

Discovery (not yet discovered by Christian Europeans)
Conquest/capture
Treaty
Sale (by tribes v. government grants)
Papal Decree (The Pope says it’s yours)
—–
* Labor Theory (by working the land, improving it, it’s yours)
* First in time, first in right (I was there first, I have the rights over someone else)

Question 2

What were the overriding values demonstrated by the Johnson v. M’Intosh case?

Answer 2

1 Certainty > Fairness The US takes away almost all land rights from the First Nations

Question 3

What did Locke mean when he said, “Thus in the beginning, all the world was America”?

Answer 3

usually property rights are transferred through voluntary transaction. However, the formation of America wasn’t this case. It was a land grab, fundamentally unfair.

Question 4

What is legal positivism?

Answer 4

Property rights are defined by law.
Johnson v M’Intosh reflects the approach of legal positivism. Without the law/government, there would be no rights. Mostly by state law, with some exceptions to the federal government.

Question 5

The Three Elements to Possession

Answer 5

1) Manifest an unequivocal intention of appropriation.
2) Must deprive the animal of its natural liberty. Ex: Wounding or capturing.
3) Pursuer must bring the animal within certain control. Similar to above. Most intuitive.

Question 6

How do occupancy and capture relate?

Answer 6

They’re essentially the same. CONTROL = establishing a foundation of property system.

Question 7

What is constructive possession and what doctrine does it serve?

Answer 7

An individual has actual control over chattels or real property without actually having physical control of the same assets. Certainty, the easiest way to make a decision. Recognized in the UK but not in the US regarding wild animals.

Question 8

How did Pierson v Post establish the Capture Rule as the American Standard?

Answer 8

+ If you catch a wild/feral animal, you have made them into your property.
+ Pure, first in time, first in right in nature.
+ Always the default, despite being problematic it’s critical.
+ Grab as much as you can before anyone else does.
+ Not only applies to animals, but also natural resources like mining, hunting, gas

+ The system has a built in incentive to take as much as you can and to get there first to exploit. Being there first means you get the biggest chunk. Maximizing profit as quickly as possible.

Question 9

What is the Doctrine of Accession?

Answer 9

Method of acquiring property by adding value to other property through labor or new raw materials. Through a property law doctrine known as ‘accession’, ownership of property naturally carries with it the right to possess all of the things that are added to or produced by that property, similar to Labor Theory

Question 10

What is the Doctrine of Increase?

Answer 10

Offspring or increase of tame or domestic animals belongs to the owner of the dam or mother… the increase of the increase of domestic animals comes with the rule and belongs to the owner of the original stock.

Question 11

Did ratione soli have any bearing on the final decision in Keeble (the duck pond case)?

Answer 11

At first, maybe. However, the arguments of counsel led Justice Holt to change his mind to the theory of malicious interference with trade (economic efficiency> constructive possession

Question 12

What are externalities and how to they relate to Economic Theory of Property?

Answer 12

Externalities = making a decision without taking into account the full effect of the decision (overlooked possibilities). Consequence is misused/misallocated resources. At the heart of economic theory of property rights, not always a bad thing. At the heart of Tragedy of the Commons.

Question 13

What is the Economic Theory of Property and what are some drawbacks?

Answer 13

Private property exists to maximize the wealth of society. Maximize wealth by “internalizing externalities”, meaning that the costs of the resources use is for the user to bear. Property rights concentrate the costs and benefits of the use on owners, giving them greater incentives to use their own resources more efficiently.

Problems: High transaction costs, external effects of using resources and misused resources. Ex: free-riders,collective/nonexclusive effects, holdouts to a group in order to carry out transactions. Also, controversial to say the least. Tends to favor the rich, think of the “trickle down” approach in economic policy.

Question 14

What is the Utilitarian Theory of Property?

Answer 14

Private property exists in order to maximize the happiness/utility of all citizens. Property is a mere artifact of human invention. Property is allocated and defined in the way that best promotes general welfare of society, aka ECONOMIC EFFICIENCY. Not focused on morality or social justice.

Property and law are born together and die together” - Bentham. Role of legislator was to do “what is essential to the happiness of society” Dominant theory in present society.

Problems of this theory include: It’s difficult to assess happiness. Yes, it’s easy to justify the existence of private property under the theory, but how should the property be allocated?

Question 15

In Popov v Hayashi (baseball case), what were the values demonstrated by the court?

Answer 15

Fairness and Efficiency > Certainty
+ Since we don’t have evidence of Popov’s ability to keep control of the ball (he was unfairly attacked), we can’t side with his conversion claim against Hayashi.

+ Also, we can’t side with Hayashi due to Popov’s pre-possessory claim. Therefore, the court designates equal ownership rights, a “middle ground” to show equity.

+ Sell the baseball, put it out there in the stream of money and be done with it

Question 16

H: Pierson v. Post’s dissent suggested using customary traditions from hunters to form a new role… should the same be applied to Popov v. Hayashi (baseball case)? If so, whose customs should be followed — players or fans?

Answer 16

I don’t agree that customary traditions would hold true in this case. Players and fans have very different customs and I’m not even sure if there’s a way to make that certain. Plus, Ghen v. Rich (aka, the case for using customs to make decisions on possession) was mentioned as an example that didn’t hold true for this case.

Question 17

What are fugitive resources and how do they apply to the finders rule?

Answer 17

Wandering from place to place, rules apply to animals and resources since they are similar in that they aren’t stationary.
+ So the law of capture applies for both animals and resources - you don’t own the resource until you have possession of it.
+ Encourages the race to grab and competition/fear of others, some states have started regulating and modifying capture rule.

Question 18

Why was the decision in Ghen v Rich (whale case) unique in terms of the rule of capture?

Answer 18

+ The local custom dictates what’s fair and how this should be applied
+ This is a very specific industry that requires an “arbitrary exception” of the Rule of Capture. If we didn’t have this way of determining cases, the whaling industry wouldn’t survive, as no one would enter such a dangerous/difficult job without protection. It’s an issue of economics.
+ More than just saving a particular area of hunting, it is about being able to trust your community and do right by them. Keep the current custom alive.
+ How many people does this decision affect in a year? In 10 years? Not a lot! We can make a very narrow interpretation here

Question 19

Think about the values of property law as fixed (the values don’t change) but they do align with society’s values as time changes. Would Ghen v Rich be decided the same way today?

Answer 19

Probably not. Even though these older cases are mentioned today, they are foundations of law but not totally reflective of how we value land and resources in current times.

Question 20

What are considerations for fairness and cite 1-2 cases from M1 that apply?

Answer 20

Considerations for fairness: Expectations matter for the parties involved. Timing: First in time, first in right example.

Pierson v. Post = wasn’t that fair to Post because he put in all those man hours hunting the fox.

Popov = Since we don’t have certainty, let’s make this a fair decision right down the middle

Johnson v. M’Intosh = COMPLETELY UNFAIR to native Americans

Question 21

What are considerations for certainty and cite 1-2 cases from M1 that apply?

Answer 21

Considerations for Certainty:
+ Easy for the public to understand
+ Easy for a court to administer (judicial economy)
+ Aligns with social norms/expectations

Johnson v. M’Intosh = it was very certain where the line was drawn for property rights in the US

Question 22

What are considerations for efficiency and cite 1-2 cases from M1 that apply

Answer 22

Considerations for Efficiency:
+ Incentivize productive behavior
+ Encourage investment and innovation to protect resources
+ Discourage people from over-investing in anti-trapping or anti-trespassing

Ghen v Rich = We need to protect the local whaling industry, as it affects our entire economy

Keeble v. Hick = We side with the guy who’s capturing animals and using it the way society views as good.

Question 23

H: F has established a herd of deer she keeps for pleasure and venison. The deer roam around on open government land during the day, but return to a large shelter on F’s land in the evening. H, a hunter, shoots one of F’s deer one day during hunting season. F sues H for return of the carcass. Who wins?

Answer 23

F, if H had reason to know about F’s tame deer

Efficiency = we want people to tame wild animals and reward F for doing so. If H knows about F’s tame deer, he should know that she’s their relative “owner”

Question 24

H: ou got to the box office at six in the morning to stand in line to get tickets for The Concert. It is now ten in the morning. You are five people away from the front of the line. The box office is about to open. Do you have any property rights as to your position in line?

Answer 24

No, because the Government (courts, police, etc.) will not protect my place in line

OR Yes, if you are a social science type and believe that social norms govern certain situations

Question 25

H: T, a trespasser, captures a wild animal on the land of O, a landowner. T carries the animal off to her own land where she confines it in a cage. Later, T1 trespasses on T’s land, opens the cage and takes away the animal. In a suit by T against T1 for return of the animal, who wins?

Answer 25

T

Think about ways to determine who has relatively better title (not perfect), but relative title. First in time makes this a certain (easy) rule to follow.

Question 26

H: T, a trespasser, captures a wild animal on the land of O, a landowner. T carries the animal off to her own land where she confines it to a cage. Later, O trespasses on T’s land, opens the cage and takes away the animal. In a suit by T against O for return of the animal, who wins?

Answer 26

O keeps the animal, but may be liable to T for trespass

Question 27

H: F maintains a herd of horses. A mare belonging to F strays onto the land of F1, meets a stallion belonging to F1, and eventually has a colt. Who owns the colt?

Answer 27

F in all cases

The rule of increase gaves ownership rights over offspring of domestic animals to the one who owns the mother. The reason is that you can ascertain the mother (mare) but not the father (stallion). Also, another possible explanation is that the owner of the mother incurred greater expense/labor in caring for the animal during pregnancy.

Question 28

H: P imports two Komodo Dragons to Denver. The dragons usually live on the islands of Komodo and Flores in Indonesia. The Dragons are wild and, once having escaped, have no inclination to return to captivity. P confines them in a secure pen. However, one dragon escapes anyway. Some time later, the escaped Dragon is killed by D in City Park. D skins the Dragon and preserves the hide. P sues D for return of the hide. Who wins?

Answer 28

P

What would the presence of a Komodo dragon loose in City Park suggest to you? This was someone’s pet, not a wild animal running free to capture. Pets = chattle = personal property

Question 29

H: F, a farmer, is bothered by migrating geese on her land and shoots them in violation of fish and game laws. The Government confiscates the carcasses, and F sues for their return. The Government wins, because the Government “owns” wildlife, may regulate its taking and confiscate wildlife taken in violation of that regulation. The geese return the next year. F sues the Government for the damages the geese cause to her corn. Who wins?

Answer 29

The Government, because Government ownership of wildlife does not include an obligation to compensate others for damage caused by wildlife.