ACQUISITION

Acquisition by Discovery & Conquest

1. Rules

   1. The right of discovery. The first sovereign to find unknown territory, land a craft, and perfect title has the exclusive right to appropriate it or convey this right to other sovereigns or individuals. M’Intosh.

   2. The right of conquest. A sovereign who takes enemy territory through force may annex title to land that its courts cannot deny, regardless of the original justice of the claim. M’Intosh.

      1. Typically, the rights of conquered are preserved, but this comes at the discretion of the sovereign. M’Intosh.

2. Analysis

   1. Franciscus de Victoria, De Indis et de Jure Belli Relectiones (1557) (Supp. I, 115)

      1. Right of discovery not applicable to America. The original justice of the European claim to the Americas was suspect; if property belongs to the first occupant “by the law of nations and the natural law,” then “the barbarians were true owners, both from the public and from the private standpoint.”

   2. Territory inhabited by Indians was regarded as terra nullius (and thus discovered) but converted into conquered territory because Indians could not be “assimilated.”

3. Major Case

   1. Johnson v. M’Intosh (U.S. 1823) (3)

      1. (Marshall, C.J.) Π tried to eject Δ from land. Π’s title came from local tribe; Δ’s from Congress. Since Great Britain discovered/conquered Ohio River Valley and title passed to Virginia then United States, U.S. has exclusive right to transfer title. All Indians have is privilege of occupancy. Δ.

T.1 Basic Actions in Property Law

Acquisition by Capture

1. Rules

   1. Feræ naturæ. Non-domesticated animals (determined by law) and some unowned objects (e.g. manure) are acquired by possession. Possession is vague standard, established by:

      1. Capture. A possesses if A deprives ferae naturæ of its “natural liberty” by doing all possible (in context) to keep it, e.g. wounding or capturing it. Pierson; Ghen; Haslem.

         1. Custom. This may be established by custom, especially when custom is reasonable and an industry depends on the rule. Ghen. The court may, however, ignore custom. Pierson.

      2. Ratione soli. A constructively possesses if A owns the land on which the feræ naturæ (or any chattel) is captured. Keeble; Hannah.

      3. Government. Government may own any wild animals in jurisdiction. Visser.

   2. Interference. If A maliciously interferes with B’s lawful employment (e.g. hunting), A is liable to “an action for hindrance.” Keeble. Exceptions:

      1. Competition. When A competes with B for feræ naturæ. Keeble; cf. Pierson.

      2. Privileged Right. If A uses his own land to do something he has a privileged right to do (e.g. start a fire), interference is okay even if A has a malicious intent to interfere with B. Bradford v. Pickles (Eng. 1895).

2. Analysis

   1. Interference.

      1. The court in Keeble did not want to sanction disruptive behavior with no productive purpose; made distinction between A who opens school that competes with B’s school (A lawfully lures) and A who shoots at B’s students (A unlawfully scares).

1. Major Cases

   1. Pierson v. Post (N.Y. 1805) (18)

      1. (Tompkins, J.) Π was on wasteland and chased fox. Δ caught fox and sold it. Since “mere pursuit” is not enough to establish occupancy, Δ did not damage Π. Δ.

      2. (Livingston, J., dissenting) Fox is enemy of human race. Therefore any policy should reward killing them. This decision will deter hunters, as foxes may be intercepted. Hunting custom has “reasonableness” standard, and court should follow.

   2. Ghen v. Rich (D. Mass. 1881) (26)

      1. (Nelson, J.) The custom in Mass. was when whaler W kills a whale with a harpoon, finder F reports the beached whale, and W pays F a finder’s fee. Here, Π killed, but F sold the whale to Δ.

   3. Keeble v. Hickeringill (Eng. 1707) (30)

      1. (Holt, C.J.) Π set up decoy pond for ducks on own property. Δ disrupted by purposefully shooting at pond. Since this was unproductive scaring rather than productive competition, Δ owes Π for disruption.

2. Squib Cases

   1. Haslem v. Lockwood (Conn. 1871)

      1. Π raked manure from street and left in pile. Δ sold it. Since Π added value to manure, Π was reasonable first possessor and is entitled to remedy.

   2. State ex rel. Visser v. State Fish & Game Comm’n (Mont. 1968)

      1. Π shot a goose that few over her property; government confiscated so she sued for trover. Court: government owns wild animals, regardless who captures. But see . . .

   3. Sickman v. United States (7th Cir. 1950)

      1. Π sued government for geese eating land. Court: government is not responsible for property damage conducted by wild animals.

Acquisition by Finding

1. Rules

   1. Lost, mislaid, and abandoned personal property. There are different rules for found personal property, depending on its condition. Simplified: the finder of a mislaid object acquires no rights in it; the finder of lost property has title against all but its true owner; and the finder of abandoned property may keep it. Michael v. First Chicago Corp. (Ill. App. 1985).

   2. Lost property. The prior possessor of an object generally prevails against subsequent possessors, even if the object was unlawfully obtained. Anderson. “Generally” because the “finders, keepers” rule may conflict with ratione soli.

      1. Finders, keepers. An old categorical rule states that a finder does not acquire absolute ownership, yet may “keep it against all but the rightful owner.” Armory.

      2. Conflict with ratione soli. The possessor of land, however, is entitled to all chattels found on land. Hannah.

      3. Hannah synthesis. Hannah synthesized these categorical rules: landowner possesses everything attached to or under surface of land, but not necessarily unattached things on surface. Hannah.

         1. Finder v. land owner. The Hannah standard is more subjective for chattels above ground. The court awarded the brooch to the finder because the landowner (A) never occupied the premises, (B) did not have or know of the brooch,...

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