Property I- Davidson- Fall 2005 - Property Acquisition by...

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Property Acquisition by Capture A. Rules: 1. whoever is First in Time is entitled to possession 2. HOWEVER – sometimes Custom trumps First in Time a. Examples: (1) Pierson v. Post – fox hunt [must be captured to be owned – mere chase is not enough] (2) Keebel v. Hickeringill – scaring the ducks (3) Ghen v. Rich – custom of whaling [finding and marking] B. Caves: 1. CLAW – owner of surface controls it to the center of the earth [ ad infernos ] 2. entitled to share of profits below C. Migratory Resources [oil] 1. requires Non-Negligent capture – may withdraw from pool to make own IF Non-Negligent D. Water 1. American Rule: a. Rule of Capture w/ addition: wasteful uses of water IF they harmed the neighbor THEN considered unreasonable and unlawful 2. Prior Appropriation [first in time] – Western States a. One who First captures and puts it to reasonable and beneficial use and a aright superior to others b. Use it OR Loose it 3. Riparian Rights – Eastern States a. Reasonable use [must not obstruct other’s rights] Acquisition by Creation Lockean Argument A. General Rule: 1. IF you Create something [first in time] THEN it is yours to exploit a. PROBLEM: You do NOT Always have full rights of property in your own person [blood, cells, etc.] & Public Policy against monopolies, etc. B. Copy Cats 1. Examples: a. INS v. AP – stealing the news b. Virtual Works v. VW – squatting on a Web domain [ 15 USC §1125(d) – ACPA statute against this] 2. PROBLEMS: a. Myth of the Lone Author b. Most Creation is a Collective Effort built upon the work of Others (1) Current patent system seems to suppress this C. Property in One’s Persona 1. Right of Publicity – right to exploit ones own image [conversely the right to be left alone] a. Evolved out of people who did Not wasn’t their image to be used [remember the Rochester Flour girl case] 2. EXAMPLE: a. Vanna White: right to sell her image which is Divisible and Inheritable 3. Conversion a. Moore v. Regents of UC – a person does not retain sufficient interest in excised cells to support a cause of action for conversion D. Right to Include/Exclude 1. BOTH are Necessary and Sufficient conditions of transferability 2. ABOSULTE?? a. Jacque v. Steenberg Home – right to exclude others from land is One of the Most Essential Sticks in bundle of rights State v. Shack – cannot exclude government services to migrants
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Adverse Possession A. Requirements: 1. Actual Entry giving Exclusive possession a. Shown By: [ Van Valkenburgh v. Lutz ] (1) the premises are protected by a substantial Enclosure [fence] (2) OR Usually Cultivated or Improved 2. Open and Notorious possession a. put Notice on other party: (1) e.g. Enclosure, Clearing of Land 3. Adverse [ hostile ] and under a Claim of Right [ title ] 4. Continuous and Uninterrupted possession for the statutory period B. Color of Title 1. Def.: gives written evidence of attempt to convey land, but not a valid deed.
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