Not a fact, but a legal conclusion.
To posses something, in legal sense, is to have the legal relationship to it that constitutes ownership.
made based on customs of the time, vicinity, or industry
Customs of trade or industry - not always be something that should be made in to law
May not be what is beneficial to society as a whole (ie: endanger species hunting)
Certain customs beneficial to both sellers and buyer, but not necessarily to all of society.
Acquisition of Property by Discovery
(Johnson v. M’Intosh)
find land that is unoccupied. Discovered, unoccupied land went to sovereignty nation of discoverer.
Johnson v M’Intosh
In this case Marshall says that we just can’t look at the abstract concepts of right and wrong.
has to make judgment following the established state of real estate and titles of property.
Demands of justice weighted against the demands of law
Legal Rule: All legal title of land ultimately lies with the sovereign party.
Cts only have power to the extent that we treat them as if they do.
Title by conquest cannot be obtained today because it is prohibited by international law.
Prop By Capture
Pierson v. Post; Ghen v. Rich; Keeble v. Hickeringill
Pierson v. Post
– P (Post) was on wild, uninhabited, un-possessed waste land where, accompanied by
dogs, he was in pursuit of a fox, intended to kill fox. D (Pierson), seeing Post and knowing he was
hunting the fox, and within Post’s view, killed the fox and carried it off.
Property in wild
animals is only acquired by occupancy, and pursuit alone does not constitute occupancy or vest any right
in the pursuer. -This rule is important b/c it will lead to the destruction of more foxes-according to
-rules v. standards
Rules vs. Standards:
Rules lead to more clarity / Standards can be vague (Examples of Standards: “Beyond a
Reasonable Doubt”: there is no formal definition of this term; “Take Due Care”; Negligence standard)
Possession of wild animal
Deprive that animal of its natural liberty by mortally wounding it or trapping it.
-Possession of an animal shows property of that animal.
: argues this case based on what the majority says they are doing. Look for a rule that is out there
somewhere that will tell how to decide suit.
: What seems like the appropriate outcome of the case.
Other ways of deciding case:
Community customs, wise elder, bureaucratically (have an expert tell you),
decide by ordeal (battle), by chance (coin flip), etc.
What are the relative advantages and disadvantages of rules, which will have less gray area, and standards,
which will provide less gray area for cases.