Ch. 1 First Possession: Acquisition of Property by Discovery, Capture, and Creation A.

Acquisition by Discovery: entails the sighting or finding of hitherto unknown or uncharted territory; accompanied by a landing and the symbolic taking of possession, acts that give rise to an inchoate title that must subsequently be perfected, within a reasonable time, by settling in and making an effective occupation. Johnson v. MIntosh Facts: *The plaintiffs, natives, claim land to which they were admitted rightful occupants; to posses and use the land at their discretion. *However, they were not to act as independent nation. *The discovery gave exclusive title to those who made it. *TITLE as opposed to Property. Issue: * Whether the chiefs heed the right to sell the land in the first place? *Did trial court error in holding that title to land was rested in Ds who claim title to U.S. given that P 1st purchased land from Indians Holding: NO. Analysis: *The Indian inhabitants are considered only occupants deemed incapable of transferring the absolute title. *The Trial court did not error bc the Ps did not exhibit a title which can be sustained in the court of U.S. *The Indians occupancy of their aboriginal lands did not involve an adequate amount of labor to perfect a Property interest in the soil. ** Doctrine of Discovery: whichever Europeans discovered land first has title Rule: The government honors only titles bestowed upon U.S. citizens. Notes and Questions: TITLE: Right to Transfer, including: selling, gifting, devise - Discover: Acquire via Purchase OR Conquer -Land ownership determines ownership and control of a host of other natural resources, such as wild animals, water and minerals, peace and quiet, clean air and open space. - Acquisition by Discovery: entails the sighting or finding of hitherto unknown or uncharted territory; accompanied by a landing and the symbolic taking of possession, acts that give rise to an inchoate title that must subsequently be perfected, within a reasonable time, by settling in and making an effective occupation. -Conquest: the taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror. Res Nullius : Terra Nullius a thing or territory belonging to no one.

A. Acquisition by Capture Pierson v. Post Facts: Pierson saw the facts being hunted by Post and killed him before Post could do the same and take it. Post on uninhibited ground hunting wild fox Pierson originally sued Post, now vice versa DOGS INDICATE HOT PURSUIT Issue: Whether Post by pursuit with Hounds acquired right property in the fox will sustain action against Pierson Killing and taking away? Holding: YES! Analysis: Posts great pursuit of the animal on unoccupied land confers such right to it that anyone who interferes is the wrong doer Much turmoil would come from laws allowing an interception to the first seeing, pursuing, individual. HOT PURSUIT + CAPTURE. Rule: CAPTURE WILL GIVE YOU TITLE. Property in animals may be acquired without touch or mancupation provided pursuit be in reach and have reasonable prospect. POST WINS in Supreme Court. *PROPERTY ISSUE IS THE FOX. Notes & Qs The law of real property in this country, wherever its materials were gathered, is now formed into a fine artificial system, full of unseen connexions and nice dependencies; and he that breaks one link of the chain, endangers the dissolution of the whole.

Ghen v. Rich Facts: *Finback whale found and auctioned off rather than reported to Provincetown Huntsman/Pursuer. *D sold whale at auction for its appropriate markings Issue: Does killing and marking device on a whales lances give title of the whale to its pursuer? Holding: YES. Analysis: *No person would engage in pursuing the whales if the fruits of his labor could be claimed by chance finder Killing and appropriately marking a whale is sufficient to claim it as property HOT PURSUIT : Exception TRADE CUSTOM Rule: The first taker/pursuer/killer upon appropriate markings claims title to the whale.

Notes & Qs *Whaling customs is what won the case in favor of Ghen. Q: Should customs and the usage of whales have determined the outcome of this case?

Keeble v. Hickeringill Facts: *P possessed land & a decoy pond with ducks for hunters to resort & come. *D discharged six guns and fired them on Nov. 8th driving present ducks away *Nov. 11th & 12th, D again set up with guns by the pond and fired them, frightening wildfowl away. KEY FACT: Firing of guns for sole purpose of scaring the ducks away, KEY because it pertains directly to the accusation of malicious interference. Issue: Whether action lies in a violent or malicious act done to a mans occupation, profession or way of getting a livelihood? *{Would P be able to recover damages for the mal interference?} * (Did D maliciously interfere with Ps livelihood given that he fired guns near Ps land and scared ducks off and in which D had no interest?) Holding: YES! Analysis: * This action is not brought to recover damage for the loss, but brought for the disturbance. *Healthy competition is OK if D was firing gun on other property or hunting near P that would be okay. = COMPETITION *Hindering anothers trade or livelihood is liable to he that disrupted it. *Action lies in all cases where a violent or malicious act is done to a mans occupation, profession or livelihood. Rule: The theory of malicious interference with trade: Interference with the capture or killing of wild animals has become such a problem mast states and federal government enacted legislation in outlawing hunter harassment on public land. Notes and Qs *PROPERTY ISSUE IS INTERFERENCE ON PROPERTY. *Doctrine of Abuse of Right is involved: owner abuses her property right when she exercises that right with the subjective intent of harming someone. *Title to an Animal: Mortally would and or capture. * Mere Pursuit is NOT enough. Problems: More on the Rule of Capture and Wild Animals *Trespasser who captures a wild animal on the land of another might still have no rights to the animal as against the landowner, even though the landowner never had actual physical possession or control and even though the trespasser does. Notes, Qs and Problems: The Rule of Capture and Other Fugitive Resources Harold Demsetz, Toward a Theory of Property Rights *An owner of property rights possesses the consent of fellowmen to allow him to act in particular ways. *Property rights convey the right to benefit or harm oneself or others. *LAW AIMS to discourage trespass, should not be allowed to profit from his wrong. B. Acquisition by Creation The foundation of proprietary rights is the expenditure of labor and money. Assertion: If you create something, if in that sense you are first in time, then that something is most certainly yours to exploit.

1. Property in Ones Ideas and Expressions: General Principles of Intellectual Property International News Service v. Associated Press Facts: * Parties are competitors in the gathering and distribution of news and its publication for profit INS filed bill to restrain pirating their news by 3 specific ways The news, being the material both parties are seeking to make profits from must be regarded as property amongst them. The right of the purchaser of a single newspaper to spread knowledge, etc. may be admitted, but to transmit this info for commercial use in comp. with the complainant is precisely what the D is doing. Issue: Whether one may claim property rights to news matter when parties are competing to make money for the purposes of their business? Holding: YES! Judges: There is not property of news, only in the getting of it. Analysis: *Ds conduct differs from the ordinary case of unfair competition in trade in that rather than selling its own goods as theirs, they sell complainants as their own *Relative to the competitor (called to PKG the news) there IS A PROPERTY INTEREST Rule: It is unfair competition in business to take material acquired by individual as result of organization and expenditure of labor, skill and money, salable by that individual. **Copyright laws- creative and literary works stemming from the competition. NOTES: *The property interest is not in the event, its in the wording of it. Keeble | INS __________|___________ Livelihood | Livelihood No elem. of | Competitors Competition | Ghen | Keeble | INS _____|_______|______ *Competition | Comp *Swiping | Swiping *Alleging prop.| *Alleging property was pursuer | was pursuants Pierson | INS __________|___________ Competitors | Competitors Swiping | Swiping Mere Pursuit | Mere Pursuit INS | CHENEY _________|______________ *Competition | *Competition *Commercial | *Commercial *Prod taken before| *Prod taken after results *Labor shortcutted | *Labor shortcutted by misappropriation | misappropriation *In favor of producer| *In favor of consumer

Pierson: Intent behind the pursuit- SPORT. Keeble: NO competition.

Cheney Brothers v. Doris Silk Corp. Facts: *P manufactures silks each season and only a 5th catch the public eye, impossible to patent only the top sellers *D took advantage and copied Ps most popular design selling it for cheaper *P seeks protection of the designs only during season Issue: Whether it is legal to duplicate the ideas/property of others at their expense (intellectual property)? Holding: YES! Analysis: *A mans property is limited to the chattels which embody his invention others may imitate it at their pleasure. * The copyist free ride serves an important public interest by offering comparable goods at lower prices. Rule: In the absence of some recognized right at common law, or under the statutes A mans property is limited to the chattels which embody his invention. Others may imitate these at their pleasure. Notes: **To prevent imitation of chattel, to set up a monopoly in the plan of structure gives the author a power over his fellows vastly greatly. TOO GREAT! A power which constitution allows only Congress to create. *Law of intellectual property (patent, copyright, & trademark) grants limited monopolies over protected material.

Smith v. Chanel, Inc. *Ct held perfume co. could claim in advertisements that its product was equivalent of Chanel No. 5 *Strong Public Interest in the copying of the unpatented product Imitation is the lifeblood of competition. *A large expenditure of money does not create legally protectable rights. *Appellees are not entitled to monopolize the publics interest for the unpatented product * The copyist free ride serves an important public interest by offering comparable goods at lower prices. Doug G. Baird, Common Law Intellectual Property & the Legacy of INS v. Assoc. Press Others may imitate him and take advantage of the new market by selling their own food processors. Others may imitate him & take advantage of the new mkt by selling their own food processors. Their machines may incorporate their own ideas about how such machines should be made Result: Quality of machines may rise and their price may fall. 1st person may be made worse off. NEVERTHELESS, public as a whole may be better off as long as his freedom to imitate does not destroy the incentive for people to come up with new devices.

2. Property in Ones Persona White v. Samsung Electronics America, Inc. Facts: *P sues D for advertisement invoking/parodying her image in front of wheel of fortune game * Samsung did not use her name, voice or signature * Ad was a gag on Samsung would still be around when Vanna was replaced by a robot. Issue: Is it infringement upon ones right of publicity to appropriate their identity? Holding: YES! A clever advertising strategist could avoid using names and likeness nevertheless remind people of her with impunity. Analysis: * The power to keep others from evoking ones image in the public mind is unparalleled with the 5th Amendment. * Refusing to recognize a parody exception to the right of publicity directly contradicts the Federal copyright Act * The point of intellectual property right is that they only protect certain kinds of appropriation. Rule: The vibrancy of our culture depends on the existence of other intangible rights, the rights to draw ideas from a rich and varied domain and right to mock for profit or fun. Note: An ongoing concern with intellectual property rights -whether patents, copyrights, trademarks or rights of publicity- is that there is a danger of going too far, protecting too much, at unnecessary cost to the public. Every man has a property in his own person. 3. Property in Ones Person Moore v. Regents of University of California Facts: *D confirmed diagnosis of hairy cell leukemia and conveyed to P condition was life threatening and spleen would be removed * P underwent splenectomy, 7 yrs follow ups, tests and procedures believed to be important * Spleen retained for research without knowledge or consent making 100s/1000s $$ *Moore alleged blood and bodily substances were his tangible personal property Issue: Did medical center of U of Cali commit wrongful exercise of ownership rights over personal property of another? Holding: YES! Analysis: * However, enforcement of physicians disclosure obligations will protect patients against harm Moore is threatened by *D invaded a legally protected interest of his client *D failed to disclose extent of research and economic interest before obtaining consent to Medical procedures where cells were extracted ** Reasonable Person would not have engaged in cell use. Rule: A fully informed patient may always withhold consent to treatment by a physician whose research plans the patient does not approve. Notes and Qs: Property in Ones Person *There is property in who you are as a public figure! Intestate: Die without a will. *CONVERSION Strict liability tort where fault is not needed Note: The Right to Include, the Right to Exclude

Chapter 2. Subsequent Possession: Acquisition of Property by Find, Adverse Possession, and Gift A. Acquisition by Find Armory v. Delamirie Facts: * P found a jewel and took it to Ds goldsmith shop to learn what exactly it was * CLASSIC case of subsequent possesion * Ds apprentice removed the stones from the setting under the belief it was to be weighed. * D offered 3 half pense for stones, P refused. Issue: Can P sustain legal action to recover the jewels value from goldsmith regardless not having legal title to it? Holding: YES! The jewel would have been property of the premises owner where it was found. Analysis: * The P has ownership over the jewel as the finder, and over everyone else except the absolute owner. D is liable as hes responsible for all actions of his apprentice. Ownership of the jewel entitles him to legal action against anyone, but the absolute owner. RULE: * Any finder has title to/ownership and may maintain legal action over anyone, but the rightful owner. Notes and Qs: The title of the finder is good as against the whole world, but the true owner. PROPERTY as referring to relationships among people with respect to things, not to a relationship between a person and a thing. Prior possessor prevails over a subsequent possessor. Rule that prior possessor prevails over a subsequent possessor applies in cases involving land as well as in cases involving personal property. Trespasser v. Subsequent Possession Thief v. Subsequent Possession | | | Chimney Jeweler Sweeper Boy = Finder True Owner = 1st Possession Jeweler = Subsequent Poss. #2

Hannah v. Peel Facts: *Ds home requisitioned by military, P found brooch in bedroom and gave to commanding officer 1 month later. Police relayed brooch to D who sold it (brooch from crevice of bathroom with cobwebs and dirt) P bringing suit over damages of loss of brooch because brooch was not Ds in the first place, D had never lived in the house P refused reward offer claiming right of possession to brooch Issue: *Did the P have title to brooch, given that D owned house in which brooch found never occupied it and brooch found in cobweb and dust encrusted window frame? Does the finder of a lost item on someone elses home, whod never lived there, gain title to that item? Holding: YES! Analysis: * The finder is entitled to property of item over all persons other than true owner D never in possession of brooch, it was lost for a long period of time. Brooch was never his. D had no knowledge of Brooch until P brought it to attention A man does possess something unattached to his property simply because it is no one elses. The brooch was lost and then, found by P, true owner never found and owner of the premises and had his notice drawn to matter by P, who found brooch. Rule: *Lost items are the property of the finder over all individuals except the absolute owner. Prior Possessor v. Subsequent Possessor | | Finder- Officer Owner of the house McAvoy v. Medina Facts: * P, customer of Ds barbershop, found wallet lying on a table P pointed out where wallet was found and demanded its return (plus cash) to the owner D promised to do so, but later refused after 3 demands Another customer had placed the wallet on the table, true owner was never found Issue: Does the finder of lost items on another persons property obtain title to the item? Holding: NO! Analysis: *Property owner of the premises which lost items are found are deemed owners of the items for true owner *When items are misplaced finder has no original right to the item * Securing rights of the true owner, premises owner gains property to item over everyone but true owner. Rule: Items left/misplaced and found are the property of the owner of the property item was found. Notes and Qs: Mislaid 1) intention to place at the location 2) intention to retrieve from location 3) forgot * A finder of property acquires no rights in mislaid property, is entitled to possession of lost property against everyone except true owner, & is entitled to keep abandoned property.*

B. Acquisition by Adverse Possession 1. The Theory and Elements of Adverse Possession Powell on Real Property Adverse possession functions as a method of transferring interest in land without the consent of the prior owner and even in spite of the dissent of such owners. Restricted duration for assertion of aging claims, and that the passage of a reasonable time period should assure security to a person claiming to be an owner. Adverse possessor may acquire title at such time as an action in ejectment (or other action for possession of real property) by the record owner would be barred by the statute of limitations. Henry W. Ballantine, Title by Adverse Possession Statute of limitations is to reward those using land in a way beneficial to the community

Oliver Wendell Holmes, The Path of the Law * It is said, if a man neglects to enforce his rights, he cannot complain if after awhile the law follows his example Notes and Qs The possessor has come to expect continued access to the property and the true owner has fed these expectations by her actions (or FAILURE to act). To allow a relationship of dependence to be established and then cut off the dependent party. Adverse Possession requires: 1) an entry that is 2) open and notorious, 3) continuous for the statutory period, and 4) adverse and under a claim of right.

Van Valkenburgh v. Lutz Facts: * For many years Appellee had traveled over land adjacent to land he owned. Appellants purchased land. Appellee used for travel and put up a fence obstructing Appellees right of claimed way, a portion of his garage and built disabled bros home 1947, bad blood arose Appellee charged with criminal assault for threatening Ps children in his garden additional lots purchased and fence put up Issue: Whether title was acquired to subject premises by virtue of adverse possession? Holding: YES! Analysis: * If an owner doesnt take action to eject a possessor who claims adversely to the owner, within the statutory period, title is in the possessors hands Title by adverse possession results from operation of the statute of limitations for trespass. Rule: To acquire title to real property by adverse possession must be shown by clear and convincing proof for 1st years there was actual occupation under claim of title (Essential elements of proof- cultivated improved property. Notes and Qs: Lutz admitted that he didnt own the property (likely due to bad counsel) & the court held it against him though hed met all requirements under adequate possession. Maine Doctrine- if by mistake or in ignorance, land is not your property *American decisions- State of mind 2) I thought I owned it.

Acts v. | CT Doctrine

State of mind | ME Doctrine

Statutory Period: 15 to 25 years Exclusive and actual possession Subs enclosure OR Usually cultivated or improved -Exclusive -Open & Notorious * A claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner; as the case may be. Note: Color of Title and Constructive Adverse Possession * Color of title refers to a claim founded on a written instrument (a deed, a will) or judgment or decree that is for some reason defective and invalid (as when the grantor does not own the land conveyed by deed or is incompetent to convey, or the deed is improperly executed). Doctrine Acquiescence provides that long acquiescence though perhaps for a period of time shorter thatn the statute of limitations is evidence of an agreement between the parties fixing the boundary line. Doctrine of Estoppel when one neighbor makes representations about or engages in conduct that tends to indicate, the location of a common boundary, and other neighbor then changes her position in reliance on the representations or conduct.

Mannillo v. Gorski Facts: * D & husband gained lost No. 1007 in block 43 under agreement to purchase Upon compliance seller conveyed lands on 4/16/1952 * Ds husband died, property = rectangular lot with frontage of 25 feet, 100 feet depth P owners of adjacent Lot 1008, block 42 like dimensions acquired title 53 46 Ds son made additions and changes to Ds house, Ds additions encroach upon Ps lands to extent of 15 inches, however, contends to have title to this land by adverse possession Issue: Does entry and continuance of possession under mistaken belief of title exhibit require hostile possession to sustain title by adverse possession? ~ Whether Ds actions meet necessary standard of open and notorious possession? Holding: Analysis: * Permitting presumption of notice to arise over minor border encroachments would require constant alert This would place an undue and inequitable burden on owner No presumption of knowledge arises from minor encroachment Innocent trespasser of small portion land cant without great expense remove encroachment true owner may be forced to convey land upon payment of fair value without regard to whether owner had notice of encroachment Rule: Persons having right or title of entry to real estate is entitled so for 20 years after accrual or barred from entry thereafter. Notes, Qs:

* Such possession was exclusive, continuous, uninterrupted, visible, notorious, and against right and interest of the true owner 2. The Mechanics of Adverse Possession Howard v. Kunto Facts: *Ds deed describes 50 ft wood parcel, these 50 feet in the deed not the same as where the house stood Ds house stood on land adjacent to land in deed description Dock late rebuilt by new owner used for summer recreation Ps held land east of D to convey undivided interest and pursued a surveyor Gov. survey, deed description and land occupancy did NOT coincide Ds in occupancy for less than a year Pg. 144 Issue: Whether a claim of adverse possession is defeated because physical use of premises restricted to summer occupancy? Holding: Analysis: * Occupancy of tract B during summer months for 10+ year by D and continued exist of improvements on land/beach constitutes uninterrupted possession with in its rule * It is unreasonable for every purchaser to engage in a survey ascertaining beach home with in boundaries in deed * Their claim of Rt. is no less persuasive than the purchaser believing hes purchasing more land than deed describes Rule: Continuity of possession may be estab. although land used regularly for only certain period of time each year Notes: Continuous (in the summer) for statutory period {roll over previous possessors time lived there & new owner to satisfy statutory period} - exclusive - open & notorious To hold otherwise is to completely ignore the nature and condition of the property Fact vol. convey privity estates tracking statutory period Problems: Disabilities

Note: Adverse Possession Against the Government 3. Adverse Possession of Chattels OKeeffe v. Snyder A note on Georgia OKeeffe Notes and Qs Note: The Native American Graves Protection and Repatriation Act of 1990 4. Acquisition by Gift Acquisition by gift requires intent of donor to make such gift and delivery of such. Actual manual delivery is needed if item capable of being given and is in presence of donor and donee. Constructive Delivery of item is deemed sufficient if item incapable of being manually delivered because of its size or it is not in presence of donor and donee. Gift of Causa Mortis Gift made in contemplation of and expectation of immediate death Must be an intention to make a gift, but it must be clear that the donor knew what he was doing and that he intended the gift Actual manual delivery must occur when articles are present and capable of manual delivery

Constructive delivery may occur when things intended to be given are not present or when present are incapable of manual delivery because of weight or size Newman v. Bost

Facts: P claimed D in last sickness gave all furniture and other property as causa mortis Also claimed $3k policy insurance and valuable papers in drawer P alleged D collected all these and sold house and property/furniture P received keys to everything in the house including drawer with life insurance policy claiming owner gave them all to her *Intent * Delivery * Acceptance -manual -letter with intent to give -constructive -symbolic Issue: The issue is whether the deceaseds action in handing private keys to P and instructing she have everything in the house including life insurance policy constitute as a gift causa mortis? Holding: Life Insurance- NO. Furniture & bureau- Yes. Analysis: * There is no ground upon which the P can recover the insurance money; if the piano was not hers P did not receive life insurance policy or important papers in bureau drawer as deceased been capable of delivering these items to her and did not. Thus, actual manual delivery did not occur Rule: Gifts of causa mortis, made in contemplation of and expect, of immediate death, there must be an intention to make gift and actual delivery of that gift. Notes and Problems: Intent Delivery- *Manual Actual Giving * Constructive Access ~ Key *Symbolicwritten letter Acceptance * Must be 2 subscribing witnesses *Statute is to require that there is consistency between gift & will - - Facts surrounding delivery must feed into intent

Gruen v. Gruen Facts: * P seeks declaration that hes rightful owner of painting P never had possession, but asserts father made valid gift of title reserving life estate in 63. Ps stepmother has painting and refused to give it up P has letters from father designating to painting to him so that he may use it for the rest of his life D contends even if present gift was intended, fathers reservation of a lifetime interest in painting defeated it Issue: Can a valid intervivos gift of chattel be made where donor reserved life estate in chattel and donee never had physical possession of it before donors death? Holding: YES Analysis: * Valid intervivos gift made as donor intended to make gift to his son and only constructive delivery was needed. Donee received title to property immediately upon making a gift, but possession/enjoyment of subject was postponed to future time P receieved not all rights to painting, ONLY title to it with no right of possession until his death

P not only presumed his acceptance, but presented clear and convincing proof of it, statements acknowledging gift to friends and 17 year old letter of gift from father. Rule: There must be intent to make gift or delivery, delivery by donor to donee and acceptance of donee in order for an intervivos gift to be valid. Notes and Qs: Ownership v. Possession Step mother claims you never possessed it Life Interest- Dad to son, giving painting to son reserving it for himself until death Intervivos gift made during life not while theyre dying -Intent -Delivery -Acceptance P must have clear and convincing proof