Property Cases and Tests

Johnson v. McIntosh (1823)

Facts: Johnson got title from the chiefs of two tribes, chain of title; occurred before the American Revolution. McIntosh got it from the US gov in the 1800s, and the US gov stole it from the natives.

Holding: The exclusive right to extinguish Indian title, either by purchase or conquest, resides with the government.

Takeaways: Begins to answer how property is justified -> property law tries to get stable outcomes. The outcome here is justified by creating stability, predictability, and peace.

Pierson v. Post

Facts: Lodowick Post was hunting a fox on a beach with his hounds. Just as he was closing in on the animal, Jesse Pierson (who knew Post was in pursuit) swooped in, killed the fox, and carried it off.

Holding: Property in animals ferae naturae is acquired by actual physical possession - pursuit alone does not constitute occupancy or vest property rights in the pursuer.

Reasoning:

• Easier to prove with evidence - the person with the dead fox is the one who owns it, rather than spurring conflicts between who was pursuing

• Concern with what property rule will produce the least lawsuits - must take physical possession or be reasonably likely to take possession (Goal of property law- to create incentives for something)

Dissent: go with hunter’s custom; Focused on incentives/economic rationale to encourage the killing of foxes

Ghen v. Rich

Facts: Ghen shot the whale. Ellis found it and sold it at auction. Ghen sued for the lost profit

Holding: A whale, being ferae naturae, becomes property when firm possession is established by the taker. Local usage, if reasonable and long-standing, can establish ownership rights in specific industries, such as whaling.

Contrast to Pierson - finds the local custom to be valid and reasonable; necessary to maintain the whaling industry

tragedy of the commons

1. It is in an individual’s interest to exploit a collective resource, but it is in the community’s interest that the collective resource be managed sustainably

   1. Example - the whaling industry declined due to overfishing, it was a common resource (and limited) and the large group of US whalers did not cooperate in keeping the numbers up to a replacement level.

tragedy of the anti-commons

• many people have power to veto use of a resource, leads to underconsumption

  • A solution is to concentrate ownership of resources, but that leads to other problems

  • Property rights and legal claims are a "Goldilocks problem"

International News Service v. Associated Press (19)

Facts: The International News Service (INS), a rival news agency, obtained AP's news through various means, including copying from publicly posted bulletins and early editions of AP member newspapers, and then sold it to its own clients.

Holding: A quasi-property interest in news exists between competitors in the same business, protecting the news-gatherer's investment against unfair competition.

Reasoning:

• News is less of a physical possession than a fox (compare Pierson), so without a legal remedy, it is very easy for the news to disseminate and therefore lose its value

• news, while not property in the absolute sense, is a product of significant labor and expense, and INS's appropriation of it for commercial use constituted unfair competition

• Quasi property: they do not own the news itself, but control profit and means of publication

  • Property-like transaction; the AP can't stop everyone from using the news, but can stop INS

  • It is a right to exclude against a particular other person

Moore v. Regents of the University of California

Facts: John Moore got treated for cancer, the doctors kept his cells for research purposes and made money off patenting the resulting cells.

Holding: property interest in excised human cells for purposes of conversion liability.

Reasoning:

• existing law does not recognize a property interest in excised human cells

• Statutes say that the excised cells from your body are required to be destroyed by the state; an inherent part of property is being able to control what you do with it, and when statutes are enacted preventing your right to exclude/control the object, it is not property

• It would hinder medical research if the property rights had to be acquired from each patient

Armory v. Delamirie

Facts: Plaintiff found a jewel and brought it to defendant. Defendant removed stones and kept them, pltf sued.

Holding: the finder has a right to the property and its value against all but the true owner

Reasoning:

• The prior finder has a better claim than a subsequent finder -> all but the true owner

• "the title of the finder is good as against the whole world but the true owner"

Hannah v. Peel

Facts: Defendant owned a house, but did not occupy the house. Soldiers stayed there, and one found a brooch. Gave to police, who returned to owner of house, finder sued.

Holding: the finder of an object who has first knowledge of it can claim possession from all but the rightful owner even if on another's premises

Reasoning:

• The court found that the brooch had been lost for a very long amount of time, the defendant had never physically possessed the premises, and he had no knowledge of its existence.

• court says it is clear that the discussion of the merits (the entire discussion section) does not help, and the brooch was lost and found by the plaintiff, and the true owner was never found

Acquisition by Gifting - Three part test

• Donative intent

  • May be shown by oral evidence

• Delivery of possession

  • Considerable overlap with intent but requires objective act

  • Symbolic transfer of symbolic object (from feudal times)

  • If manual delivery (preferred) is not practicable, constructive (handing over a key or object that gives access) or symbolic (something symbolic or a written instrument)

• Acceptance by donee

  • Seldom an issue, presumed on delivery if no express refusal

Gruen v. Gruen