Sovereignty And Indigenous Land; First Possession Cases

Question 1

D and P own different parts of land. P sue to eject D from land. D claims who have gotten land from a government grant, Weil P claims have gotten it from the Piankeshaw tribe. Over the course of 200 years the Bianca shot sold the land of Virginia and the US later required the same to territory, which then sold to D.

Who gets the land?

Answer 1

D (M’Intosh) because US had the ultimate right through discovery doctrine

Marshall bracket the chain of the title around the tribes describing their property right as different than anyone else would be able to claim, pushing the title back to the crown

1. Crown’s dominion trumps indigenous ownership
2. Discovery brings dominion (no actual possession required)
3. Obtaining title from tribes
4. Indigenous tribes’ cultural incompatibility
5. Necessity/prudence/pragmatic argument

Discovery doctrine: whoever discovers the land has the right to possess it and right to extinguish (native) occupancy at forcible removal (or natives concede right by treaty).

Johnson v. M’Intosh (1923)

Question 2

Indian Nation of NY sued the Coubty seeking rent offer occupation of 100,000 acres of land— they brought claims for possession of all their original treaty land as in other tribes in the 70s.

Answer 2

Many claims settled usually with agreements that the tribe would cede most of its original land in exchange, for the guarantee of some publicly own lands as a reservation and funds to purchase additional lands from willing sellers in a specified area

• in order to secure settlements the tribes agreed to significant state jurisdiction over new lands
• New York and Haudenosaunee nations did not settle. In Cayuga Indian Nation of NY v. Cuomo, found the ejectment of private land owners would potentially just placed thousands of private landowner and said ”two wrongs don’t make a right”

Oneida Indian Nation of NY v. Oneida County

Question 3

P was fox hunting on a possessed wasteland at the beach with certain dogs and hounds. D captured and killed the same fox P was hunting.

Who has possession?

Answer 3

D. Post did not have the right to the fox before Pearson killed it. First actual possession is what matters.

Mortal wounding with continued pursuit as necessary for possession for the sake of certainty and to preserve peace, order in society.

1. Certainty
2. Promotes investing in methods for more efficient capture
3. Authorities raise questions
4. Want to confine possession of beasts

Dissent: pursuit rule
1. Supports investment
2. Moves timeline forward
3. Preserving the pastime

Pierson v. Post (1805)

Question 4

Barry Bond was going to hit a record of 73 baseballs at the San Francisco Park in 2001. He hit it went into the arcade landed in upper portion of P’s glove— but it wasn’t secure and he lost his balance. Thrown into the ground as a mob descended on him. D, not part of mob, saw the ball and put it in his pocket. The general rule is at a ball goes to the first person who has a firm grip on it. D argued nothing to indicate the ball was “at rest” or that P would have caught it. P didn’t argue, but we all can infer that the ball = $ so he doesn’t care about bringing a tort climb against the mob. He wants the ball.

Who gets it?

Answer 4

They both do. Court doesn’t say whoever ends up with the ball gets the ball. Both have an equal interest in the ball. Popov had prepossess interest.

When a person completes a significant portion of the steps to achieve possession, but is sorted by illegal action (being attacked), that person is entitled to pre-possesory interest. Hayashi had an interest because of actual possession.

• Custom? Defy custom if split between monsters

Remedy: sell ball and split proceeds

Popov v. Hayashi (2002)

Question 5

Neighboring properties and underneath land, there’s an oil reservoir. P owns half and Driscoll’s own the other half. D drilled for Driscoll’s negligent drilling —> fire and wasted oil from reservoir

Is d liable?

Answer 5

Yes. Texon’s waste and destruction was not legitimate drainage and LS are entitled to damages.

Texans drilling was negligent and not in the spirit of conservation status for the railroad commission . I still had the right title and interest to the moved gas/ distillate

Rule of capture, not applicable to legitimate acquiring of oil and gas

Potential consequences:
1. Short term less gas but long term more
2. Lead to a wasteful race
3. Maybe parties contest around rule or “drill baby drill”
4. Promotes investment in actual capture technology

Eliff v. Texon Drilling Co. (1948)