#11368 - Acquisition Of Property - Long Merril & Smith Property Outline

Original Acquisition: ways in which ownership can be established other than through voluntary conveyance

First Possession: The first to possess something that is unclaimed by anyone else

Pierson v. Post (look in sup): Post and his dogs were pursuing a fox (fox hunting), they get pretty close and pierson kills it and takes it.

• Both majority and dissent agree that the rule for wild animals is first possession – question in this case is what acts constitute 1^st possession?

  • There are certain degrees of physical control w/r/t animals that can amount to possession (i.e. having it fenced in in your backyard)

  • Post argues that by pursuit he had enough physical control

• 2 Competing Incentives at work:

  1. We want to inventivize people to pursue the fox, so we wouldn’t want to waste their resources

  2. However, if we had a rule based on the above theory, then we have the problem of determining who was the first to begin investing in the fox

     • SO, court adopts a rule that coincide with clarity: first person to grab the fox gets it. “First in Time, First in Right” Courts are not fit to decide who has expended more resources in attempting to get the thing, plus there are no restrictions on what you can use to hunt (bow and arrow will require more time and effort than riffle). So courts just measure it by “first to cross the finish line”.

Ghen v. Rich: Whalers normally killed their whales with exploding harpoons, they would come back the next day or so and pick them up floating at sea or on the beach. Used to be different rules w/r/t/ ownership:

• Iron holds the whale: whale harpooned/in pursuit of kill, first person to harpoon it has the rights to it (unless it “Gets away”)

• Fast fish oose fish: as long as whale is lined to your boat its yours, but it is fair game if it breaks away

• Demonstrates that custom can develop to settle the question of when a possessory interest should vest (custom provides an efficient allocation of resources in this case)

The rule in cape cod, where this case took place, was whoever killed the whale by the standard exploding harpoon procedure owns it. Whale was found the next day by someone else and sold it to defendant at auction

• Holds that this standard procedure must stand because “no person would engage in it if the fruits of his labor could be apportioned by any chance finder”

Keeble v. Hickeringill: Plaintiff owned a duck decoy pond which had decoy ducks that would attract birds so customers could hunt them. Defendant, with the purpose to drive the ducks away and deprive plaintiff of his profit, went to the pond and fired his gun six times, driving away all of the ducks.

• Held to be an unreasonable interference with plaintiffs property (nuisance today)

• Note: if defendant just simply opened a duck pond next to him and took his business that way, there would be no recovery because at common law there is no remedy for loses due to competition. Problem here is all Hickeringill is doing is causing injury [purely destructive behavior to take from someone’s livelihood is actionable]

The Tragedy of the Commons: the degradation of the resource to be expected whenever many individuals have unrestricted access to that resource. Fisheries, public parks, etc.

• Hotels and apartment pools are a different type of commons problem, but it is not open access (not everyone has access)

  1. If one person is going to put an unusually high burden on the commons, i.e. host a pool party, they usually have to pay

• Tragedy of the commons is common in fisheries: if it is just you fishing, you want to leave some fish to reproduce subsequent years. However, if a bunch of people are fishing they will take as many fish as they can because they do not trust everyone else to leave some fish. Thus, the resource gets depleted.

Anticommons: Too many people have the right to exclude

Semicommons: Occurs when a given resource is subject to private exclusion rights in some uses or along some dimensions, but is a commons or open access for other purposes or along other dimensions

Finder: Has a superior right to ownership relative to everyone in the world, except the true owner

Salvor: Often associated with sunken vessels, the salvor has a claim for a generous percentage of the value of the thing, but does not acquire ownership of it or its full value. By gaining and maintaining possession, a salvor would have a right to engage in salvage without interference from other would be salvors, thus preventing yet another instance of tragedy of the commons.

• To enjoy the continued rights of exclusive possession and protection from interference by other salvors, a salvor must exercise due diligence (i.e. you cant just mark a sunken ship and come back to it as you please [eads v. brazelton])and must be capable of actually saving the property. Must deal with it in a manner as to warn other potential salvors of the claimed area

Eads v. Brazdlton: P located a sunk boat and dropped a buoy on top of the boat (though did not actually attach the buoy). When P returned several months later D was engaged in salvaging the boat. P sued D for infringing on his possessory interest in the salvage

• Court says that P has not established a possessory interest in the boat. Court’s holding motivated by an attempt to create incentives towards societally productive behavior (salvaging the boat quickly) and disincentives towards wasteful behavior (claiming title to possessory interest in abandoned property that you don’t have the capacity to salvage).

Sending broadcast signals across someone’s land has never been regulated as a violation of a landowner’s property rights under the ad coelom rile. The spectrum has usually been regarded as a resource unto itself and the object of either private property of administrative regulation.

Tribune Co. v. Oak Leaves Broadcasting Station: One radio station had historically used a wave length. New radio station came into town and either used the same wavelength or one very close to it. Causes both signals to be interfered with

• There is no physical interference that is happening when people send out radio signals

• But, fundamental Coasian/Property idea is an interference with someone else’s use of their property (physicality is irrelevant)

• Tribune Co. was not first in possession because there was nothing to possess, but they were first in right.

International News Service v. Associated Press: AP gathers news from all parts of the world and distributes it daily to its “members” for publication in their newspapers. Main issue in the case was International News was copying news from bulletin boards and from early editions of AP’s newspapers and selling it, either bodily or after rewriting it, to its customers.

• Expression is what can be copyrighted, not the facts. Case was decided in equity on grounds of unfair competition (harm the other competitor without putting any physical harm on that competitor)

  • For example, you can steal a plot of a play, but you cannot reproduce the expression of that play

  • If other people can get your customers for free, a problem arises nobody would want to produce

    • So the arguments for IP rights here, and anywhere, is to provide the right incentives

• However if we say AP owns the news, we give them tons of economic rents: the difference between what you are getting and what it would take you to do...