Property Outline - Jordan

Property Outline - Jordan - Property Outline Spring 2005 A...

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Property Outline Spring 2005 A. Acquisition of Property – Capture, Find, Creation, Adverse Possession ACQUISITION BY CAPTURE Rule : Under the Rule of Capture, the first person to take possession of a thing owns it. Actual capture is required and not just pursuit. A corollary of this rule is that a prior possessor prevails over a subsequent possessor. Majority : If animal mortally wounded/trapped so capture is virtually certain (i.e., hot pursuit), then animal treated as captured (But not if trap hasn't closed) Note : This rule is only useful in forest for instrumental reasons In other settings, such as the ocean, those reasons disappear. Pierson v. Post (1805, CB 19) : Post fox hunting, Pierson intercepts fox and captures. Ct: Insufficient to simply manifest intention. Must deprive animal of liberty. Physical possession or death of animal is what creates ownership. PRO ]Majority]: Peace and tranquility: prevent disputes about who saw it first, due to clarity of rule [contra : first chaser might sue more often saying he had mortally wounded] Easier to administer : easier to prove ownership by who captured than by pursuit, which is hard to define (ambiguous even if fox mortally wounded) Reward success as incentive for effort E.g., 2 people researching computer program, one who finishes 1 st gets patent Technology/Investment Incentive : Giving fox to “capturer” gives incentive to the “chaser” to improve tech. Foster Competition : Assumes that this will bring more persons into pursuit, resulting in more capture Encourage trade : Buyer knows that seller has a strong claim to item if it is in his possession CON [dissent]: Fairness: o Labor : not really rewarded (can pursue up until last minute and X can still capture) o Reward success : Reward effort that's prelude to success Incentives: first in pursuit should be rule if trying to eradicate foxes (since gives labor incentive) Custom: Since most people operate by hunting custom, introducing a new legal rule will lead to MORE conflict. Also: Since it's a sport, hunters know what makes it more fun—leave it to them. Problem: Treating wild animals as unowned property may lead to extinction, over- hunting, endangered species o Fishing : in high seas people try to get as much fish as possible on one trip = overfishing Problem with applying these cases : You may not know longterm effects of incentives, etc., b/c many of the facts are not available to the court. 1
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Exception #1: But a custom that is thought to be more effective in getting animals killed or preserving industry may dictate a different result (actual possession is not always necessary for ownership) Ghen v. Rich (1881 CB 26) : Custom was to shoot whale w/ bomblance, whale sinks, reappears on shore, finder would call port, tell them whose bomblance it was….whoever shot it got whale, finder gets finders fee. But in this case finder sold whale to R instead violating custom ( Court ruled for custom and Whaler
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Property Outline - Jordan - Property Outline Spring 2005 A...

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