Property Outline_kelsi - Chapter One: First Possession:...

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Chapter One: First Possession: Acquisition of Property by Discovery, Capture, and Creation I.Fundamentals a. Natural v. Positive Law i. Natural = implicit by nature, principles of law ii. Positive = legal prescription of law from govt. b. Property i. Property right = power to control ii. Value of property law = power to control c. Possession i. Europe = add value to ii. John Locke’s labor theory = have property right in person, join this with land by mixing labor with land – makes it a right d. Who ever is prior in time wins II.First Possession of Property e. Acquisition by Discovery i. Title of Property 1. If first, discovery gives title of property 2. Gives ownership rights a. Extinguish possessor b. May sell ii. Title of Occupancy 1. Right of possession only (Johnson v. McIntosh [one purchased from the tribe, another from an Indian tribe, the tribe’s title of occupancy did not give them the right to sell] B3, N1-6) 2. Cannot sell 3. Want to encourage improvement to property 4. Hypo: What if you are a congressman and you pass the rule that citizens cannot purchase land from Indians? Why should it be the rule? If it wasn’t, U.S. wouldn’t have title that it claims – absolute right f. Acquisition by Capture i. Wild Animals 1. Captor owns the animal a. Must actually take possession of the animal (Pierson v. Post [where one hunter was in pursuit of a fox and another hunter, knowing that, killed and took the fox; no right to fox until it is in your possession] B19, N6-19) b. Mere pursuit is not sufficient c. Policy considerations i. Certainty – hard to decipher pursuit ii. Efficient hunters – will make certain
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have animal completely iii. Peace and order – definite rules 2. Theories of Capture a. Justinian i. Must actually take ii. Policy consideration 1. Certainty 2. Labor of Hunting b. Tompkins i. Mortal wound and cont’d pursuit c. Livingston i. Reasonable prospect of taking ii. Policy considerations 1. Encourage hunting d. All 3 further the principle of first in time 3. May follow industry custom a. Whalers, waiting = pursuit (Ghen v. Rich [whaler killed whale, tagged it and left it as was the custom, another found it and sold it at auction, when killer found out, wanted to claim] B26, N10-13) b. Policy considerations i. Growth of industry ii. Follows first in possession rule 4. Interference a. One who does not want to capture may not interfere with capture (Keeble v. Hickeringill [duck decoy pond, D came and fired gun to scare away the ducks] B30, N13-14) b. Policy consideration i. Want animal dead c. Hypo: Animal rights group scares deer away as hunter is about to kill it i. Pierson – no claim to deer, not possessed ii. Keeble – interference ii. Domesticated Animals 1. Laborer owns animal a. Hypo: If cow is loose, neighbor kills and takes it, owner wins b/c has invested labor in cow b. Policy considerations i. Encourage labor 2. Mother with child a. Do not separate mother from child b. Mother labored c. Policy consideration i. Easier to ascertain the mother
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3. Animus reverteriari
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This note was uploaded on 04/30/2008 for the course PROPERTY 101 taught by Professor Lew during the Fall '08 term at Florida Coastal School of Law.

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Property Outline_kelsi - Chapter One: First Possession:...

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