PropertyOutline - Property Acquisition by Capture First in...

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Property Acquisition by Capture First in Time is First in Right! Pierson v Post o Pierson test - in order to have right to a wild animal you must have occupied it (killed, captured, or mortally wounded). o Possession of a wild animal is not effective even if animal is on your land. But if someone else (trespasser) kills it on your land then you have superior right of possession. Superior right of possession – to have title, or right to possess. Hunter must be in hot pursuit. In favor of public tranquility custom outweighs law. o Ghen v Rich – whalers whale was sold by recoverer. Custom states that whalers would incapacitate the whale and recoverers would bring it to shore when it appeared and notify owner. Whaler had superior right of possession because custom dictated that since he “occupied” the animal he had possession. Keeble v Hickeringill o In the absence of possessory rights, one is still not allowed to interfere with the business of another without penalty. o Ex. A creates decoy duck pond, B shoots his gun to scare ducks away. A has no possessory right over ducks, but B must answer for disrupting A’s business. Intervening Superceding Factors – factors which affect the outcome of the dispute, such as: o Custom o Policy considerations o Animus Revertendi Hypo: O has a fox farm, T and T1 live near. T steals a fox from O, and T1 steals said fox from T. T has SRP over T1 b/c of Fit/Fir. O has constructive possession. o Constructive Possession – where a person has actual control over chattel or property. Hypo: Wild Deer roam on public property during the day, but at night return to private land of O, where O has set up a haven for them. H shoots deer on public property, O has SRP of the deer because of Animus Revertendi. o Animus Revertendi – defacto ownership when animals return to persons property. Applies even to wild animals. Land owner has BOP. Migrating Resources (Oil and Gas) Riparian (Water) o No duty to compensate neighbors because of law of capture. Law of Capture - the first person to "capture" a resource owns that resource. (Prior Appropriation) No one who comes after you can impair your recorded/historical usage, even in times of decreased levels. (water) o Property rights go from above ground to below ground. Owner has SRP and CP unless rights are signed away. Acquisition by Creation/ Intellectual Property There are no possessory rights in intellectual property. o There is a quasi property right in fruits of labor
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Ex. INS v AP – INS was accused of bribing employees and members of AP to get news before it hit the wire. And of copying AP news from the bulletin board and passing it as its own. Held there are no property rights in the news but the quasi right comes from the fruits of their labor, INS cannot come along and ride their coat tail. Once its published its fair game, but to use unfair practices to get news first is not allowed. o
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This note was uploaded on 04/01/2011 for the course CRLP 107 taught by Professor Bretz during the Spring '10 term at Cooley Law.

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PropertyOutline - Property Acquisition by Capture First in...

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