Nemo dat quod non habet No one can give that which he does not have Acquisition by Discovery

ry o Discovery entails the sighting or finding of hitherto unkown or uncharted territory; it is frequently accompanied by a landing and the symbolic taking of possession. o Conquest is the taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror o Neither of above two have much immediate relevance today (hardly any unknown territories on earth. & w/ conquest, it has become banished by contemporary international law as a method of territorial acquisition) o Johnson v. MIntosh Native American inhabitants retained title of occupancythey were incapable of transferring absolute title to others. 1. They saw Indians as savages (aboriginals)having aboriginal titlesexclusive right to use and occupy the land that is it. US therefore possessed sovereign power to grant the soil. An absolute title cannot exist at the same time in different governments over the same land. (title cant be held by 2 parties at same time) Final Holding: It would be incompatible to vest absolute title in the Indians as a distinct nation and country. Therefore they are regarded as merely occupants, to be protected while at peace but to be deemed incapable of transferring absolute title to others. John Marshall was the great chief Justice at the time and he was as good a grabber of power as there came. (marburry vs. Madison for example) This case involved Writ of ejection: a request that a court commands that someone leave the land. o Labor theory/ John Lock Modernized statement of Locks core argument: He who removes out of the state that nature has provided, and left it in, and mixes his labor with it, and joins to it something that is his own, thereby makes it his property. he takes stance that Indians occupancy of their aboriginal lands did not involve an adequate amount of labor to perfect a property interest in soil. o Law of Accession When one person adds to the property of another (ex: A chopping Bs trees and making flower boxes from them) 1. Abandoned property: If a party finds property comparatively worthlessand greatly increases its value by his labor and

expense, does he lose his right if he leaves it a reasonable time to find the means to take it away, when such means are necessary for its removal? (manure case..guy heaps pile of manure together and goes home over night. Comes back with cart to take away in morning, and its gone. Someone else heaped it away) 2. Answer: NO Acquisition by Capture o Pierson v. Post First in time, first in right/to capture/in work (question is just what is first in time?) Fox is ferae naturaeproperty in such animals is acquired by occupancy ONLY. But what acts amount to cooupancy? Man hunting foxother man sees this and goes and kills fox first. Issue: has a person in pursuit of a wild animal acquired such a right ot or property in the wild animal as to sustain an action against a person who kills and carries away the animal knowing of the formers pursuit? First was NObut then now YES. New rule from dissent: 1. ancient sources like Justinian and Bracton: pursuit alone vests NO PROPERTY or right in huntsman. Even pursuit, accompanied with wounding is equally ineffectual. Animal needs to be actually TAKEN. 2. Puffendorf and Bynkershoek: actual personal possession of ferae naturae. A wild beast mortally wounded, OR greatly maimed, CANNOT be fairly intercepted by another WHILE the pursuit of the person inflicting the wound continues. o Ratione soli - according to the soil - assigning property
rights to landowners over resources found on their own land

o Ch. J. Thompkins goes with this opiniondont want hunters running around with guns arguing and suing. So first to kill wins. Period. 3. Barbeyrac: doesnt agree with Puffendorf, but affirms that actual bodily seizure is not, in all cases, necessary to constitute possession of wild animals. 4. In Dissent, Ch. J. Livingston says Barbeyrac is most rational effort of closing in is what was important. (hunters code, Barbeyrac, Locke)

o Property in wild animals may be acquired without bodily touch, provided the pursuer be in reach or have a reasonable prospect of taking the animals. 5. Utilitarian approach says whatever argument produces the best result should win. Practicality 6. NOTE: mere ownership of land that animal happens to be on does NOT constitute property right of animal, ex: if it wanders off landbut does provide right such that trespasser cant go on land for the purpose of taking the animal. o Ghen v. Rich (whaling customs and who gets the whale that floats to surface) When all that is practicable in order to secure a wild animal is done, it becomes the property of the securer who has thus exercised sufficient personal control over the wild animal. Finders keepers would disincentivize the whaling industry which would be bad for society. o Keeble v. Hickeringill (decoy pond) Damages may be recovered for the intentional frightening of game off anothers land. Although no title to the game existed, keeble was using his land in a lawful manner. Thus Hikeringill (one who fired shotgun and scared ducks away) interfered with this lawful use and is liable for damages. Hickeringill deprived Keeble of his right to profit Interference with use of land: an action to recover damages resulting from the wrongful interference with a partys property; otherwise, this is referred to as a trespass. Trespass on the case: indirect harm to someones property. General rule: first in time, first in right/to capture o Wild animals must be captured to be owned If mortally wounded or trapped so that capture is practically certain, then its treated as captured Competitor CAN interfere with competitors chase if he himself also intends to capture animal. Outside of customs (ex. Whaling) capture must acquire physical control over animal o Captured wild animals that develop habit of returning to captors property continue to belong to the captor as they roam at large. Ratione soli: an owner of land has constructive possession of wild animals on their landland owners regarded as prior possessors of any animals ferae naturae on their land until the animals are taken off.

Fugitive resources courts reasoned that ownership of oil and gas should be determined in the same case as wild animals. (like moving animals, oil came from another place and will probably go to another place). So landowner can extract all oil and gas from a well bottomed under her land even if it drains from a neighbors land. However the capture must be non-negligent. (some states have developed capture amount limitations. See common pool problems for ex.) o If animals escapes, original captor loses possession unless 2nd captor has notice that animal escaped from someone with prior possession o Government owns wild animals They may regulate their taking, and may confiscate animals taken in violation of regulations. o The government does NOT own wild fowl and is not liable for damage caused by them. You own earth below surface. o So u own caves below ur property etc. o Entitled to share profits from pple visiting portion of cave under ur property o But slant drilling NOT applicable. Cuz you are drilling under someone elses property line, so you are actually trespassing. Reasonable Use Doctrine o In most western states and some eastern ones, a surface owner can pump water for reasonable uses on her own land in unlimited quantities. She can transport it off her land only if neighbors are not harmed. Western states: surface waters and some ground water are allocated according to first in time called prior appropriation. First person who first appropriates/captures water and puts it to reasonable and beneficial use has a right superior to later appropriators. Eastern States: where water is abundant, have riparian rightseach owners of land along a water source has right to use the water, subject to the rights of other riparians. Right is attached to the land and can never be transferred to a non-riparian owner. Common Enemy Doctrine o Surface water is a common enemy and an owner can expel it. Interference with neighbors must be reasonable; unnecessary or disproportionate harm must be avoided. Common Pool Problem, if you tell everyone just to go and do likewise then there is the problem of storage and the rights of future generations are disregarded, you might spend more money, & you might extract less oil than you otherwise would have. o Texas developed unitization theory: each owner owns an equal amount of the oil and the profits are divided among the owners.

Natural Servitude Doctrine o Owner cant change the natural flow of ground waters so as to injure owners above or below his land. Modern trend is to allow reasonable changes in the flow. Externalities o Positive Externalities: Someone gets watch dog to watch the house/neighborhood. Everyone else in neighborhood benefits. Immunizations. Helps person who gets it and helps others around/society. Shopping centers Disney world comes and builds park and pple come and buy land around park and sell to hotels, motels, etc. or build themselves. They are making monnnney all because park is right there. 1. Disney land didnt internalize/capture this positive externalitiesbut they didnt make the same mistake with disney world. Demsetz: Toward a Theory of Property Rights o Property rights derive their significance from the fact that they help a man form those expectations which he can reasonably hold in his dealings with others. In other words: owner of property rights possesses consent of fellowmen to allow him to act in particular ways. o Property rights specify how persons may be benefited and harmedwho must pay whom to modify the actions taken by persons. o In Robinson Crusoe world, property rights play no role. Variants on The Commons o Open Access Regime: anyone in whole world free to come on land o Public property: not just anyone can come in (ex. Universities, forts, highways, etc.) o Commons: common on the inside, private on the outside Swimming pools in apt complex or gyms (common to members) o Semi-Commons: might be seasonable. o Anti-Commons: property divided into such small fragments it might not be useful (maybe in the eyes of the beholder) Store fronts in Moscow o Private property: something that one person has exclusive rights to. That person is the reclusive claimate of that property (taxes, pple claiming to have been injured, etc.)

I.

Acquisition by creation
a. Publication for profit of news obtained from other news-gathering enterprises is a misappropriation of a property right (Int. News service v. AP) i. AP distributing/creating news, INS buying AP paper in Boston and redistributing the news from it in SF. ii. News is not within the operation of the copyright act. iii. No property rights in newsnews of current events may be regarded as common property. (the issue is the business of making it known to the world) iv. When rights or privileges of the one are liable to conflict with those of the other, each party is under a duty so to conduct its own business as not unnecessarily or unfairly to injure that of the other. v. What is happening here is: an unauthorized interference with the normal operation of complainants legitimate business precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have earned it to those who have not. vi. So holding here is that published news of current events is Quasi property: property right that survives publication vis--vis unfair competition (so no right between publishers and public, but there is a right between two publishers) b. If a person cant obtain a patent or copyright on its product, it cant recover for the copying of it by others (Cheney Brothers v. Doris Silk Corp) i. Pattern copying cant be copyrighted. c. Smith v. Chanel (court held that a perfume company COULD advertise that its product was the equivalent of the more expensive Chanel No. 5--since Chanel No. % was unpatented, they had right to copy it. i. Imitation is the life blood of competition. ii. A large expenditure of money does not itself create legally protectable rightsjust cuz Chanel No. 5 spent lots of money to come up with their perfume, doesnt mean it should automatically be legally protected. iii. Copiers serve an important public interest by offering comparable goods at lower prices. d. Difference between Chattels (tangible goods) vs. intellectual property i. Scarcity vs. one person using it doesnt interfere w/another person using it e. Public Goods i. Non Excludable (potential consumers cant be excluded) ii. Non Rivalrous (use by one person doesnt exclude use by others) iii. Examples

II.

III.

1. National Security 2. Private Goods: a. Bread, automobiles, haircuts, books 3. Toll Goods: a. Theaters, Toll Roads, Cable TV, Electric Pwer, Libraries 4. Common-Pool Resources a. fish taken from an ocean, crude oil extracted from oil pool 5. Public a. National defense, mosquito abatement, public TV f. Incentives promote creativity (info. wants to be expensive cuz its so valuable) g. Marginal pricing promotes use Property in Ones Persona a. The right of publicity extends beyond the use of ones name and likeness to include any appropriation of ones identity (White v. Samsung Electronics Amerca, Inc.) i. Vanna White looking robot in Samsung commercial ii. Judge KoInakia Dissent: 1. Panel is giving White an exclusive right not in what she looks like or who she is, but in what she does for a living. Which is absurd. (If u remove the wheel of fortune game board from the ad, no one would think of Vanna White) 2. This holding impoverishes the public domain, to the detriment of future creators and the public at large. Advertisers will now have to cope with vague claims of appropriation of identity claims often made by pple w/ exaggerated sense of their own fame and significance. (lol) 3. Why is Vanna Whites right to exclusive for-profit use of her persona (one she didnt create, fyi), superior to Samsungs right to profit by creating its own inventions? 4. Plus this directly contradicts federal Copyright act a. Samsung pariodied vanna white appearing in whell of fortunea copyrighted tv show b. Copyright law gives world at large right to make fair use parodiesparodies that dont borrow to much of original. Right to Include, Right to Exclude a. Jacque v. Steenberg Homes (mobile home delivery) i. Right to exclude, property as owners right to do with as they wish. ii. Road very curvy and narrow and weathers bad and they thought they could make the delivery better if they could cut across Jacques land. They asked Jacques, and they said no. But they did it anyways. tresspass

iii. Court orders nominal (in name only) damages of $1. Cuz injury has no ascertainable dollar amount to it. But need to show that there are damages. iv. Court orders $100,000 in punitive damages tho! (chai!) but it couldnt be sustained by court of appeals.cuz said an award of nominal damages not enough to sustain a punitive damage award here. (not rule for all cases regarding nominal damages. Its up to Jury.) v. Right to exclude means nothing without a way to enforce it. b. State v. Shack (attorney/field worker entered farm against wishes of owner to provide assistance to migrant laborers) i. You have an exclusive right to your property except when your rights conflict with the rights of others ii. Law does NOT let you contract away health, dignity, etc. c. Reliance Interest (Joseph Singer): i. When owners grant rights of access to their property to others, they r not unconditionally free to revoke such access. Non-owners who have relied on relationship with the owner regarding access, may b granted partial or total immunity from having access revoked when this is necessary to achieve justice. ii. When pple create relations of mutual dependence involving joint efforts, and relationship ends, property rights (access to or cntrl of valued resources) must be redistributed (shared or shifted) among the parties to protect the legitimate interests of the more vulnerable persons. iii. Property rights are redistributed from owners to non-owners. 1. To protect the interests of the more vulnerable persons in reasonably relying on the continuation of the relationship. 2. To distribute resources earned by the more bulnerable party for contributions to joint efforts; and 3. To fulfill needs of the more vulnerable persons. d. Absolute rights as creating a sphere of individual autonomy (Richard Epstein) i. Nothing wrong with a system of absolute rights that allows individuals to exclude some persons on a whim and admit others only by mutual consent. ii. Cuz absolute rights simply establish the conditions for subsequent market transactions. Buyers and sellers may deal as they see fit, but so long as there are many buyers and sellers market forces will check abuse. 1. Those who exercise absolute rights in a capricious fashion pay for their folly by losing their markets. iii. On occasion however, narrow limitations on the rifht to exclude are appropriate cuz the preconditions that make absolute rights workable are not satisfied.

1. Under localized circumstances, conferring absolute rights to exclude doesnt advance competition in ordinary markets, but rather creates bilateral monopoly, holdout problems, and transaction-cost obstacles, etc. iv. However it is not sufficient to condemn all systems of absolute rights on the ground that they sometimes leave some people out in the cold. Need to consider the dangers of forcing individuals to open their property to persons whom they would prefer, for whatever reason, to exclude.

Subleases and assignments Assignment: a transaction in which a party conveys his or her entire interest in property to another. Right of reentry: an interest in property reserved in the conveyance of a fee that gives the holder the right to resume possession of property upon the happening of a condition subsequent. Sublease: a transaction in which a tenant or lessee conveys an interest in the leased premises that is less than his own or retains a reversionary interest. Under common law rule, if an instrument acts to transfer the lessees interst for the entire remainder of the lease term, an assignment has occurred. Anything less than the remainder, then sublease has been established. Under the modern rule, the intention of the parties governs in construing deeds, leases, and other written transfers of property interests. o In Ernst v. Conditt, agreement tween Rogers and Conditt was an assignment, not sublease. Rogers did not retain any interest in the lease, and he also did not reserve a right of re-entry in the event of a breach of any of the conditions or covenants of the lease by Conditt. (it appears from all of the facts and circumstances and the instrument itself that all of the parties intended an assignment rather than a sublease.

Facts to know: Equitable relief: a remedy that is based upon principles of fairness as opposed to rules of law.