Discovery, Creation, and Accession Flashcards
(41 cards)
1
Q
Discovery
A
- loosely refers to collection of situations in which someone establishes ownership of an object by being the first to claim it
2
Q
Discovery vs. First Possession
A
- both sources of original title to property, BUT discovery different from first possession b/c relevant act is a claim of ownership, rather than possession
- actual possession isn’t as important in discovery - claiming = form of signaling + focus is more on intention + notice
3
Q
Discovery and Colonization of the Americas
A
- first European power to claim an area populated by non-Europeans would have dominion or sovereignty over it, subject to rights of occupancy in the indigenous population
- indigenous population had right to continue to occupy land, but only until “extinguished” by colonizing power - could basically extinguish at any time + allow European settlers to move in and occupy
- most titles in US trace back to this set-up
4
Q
Johnson v. M’Intosh - Facts
A
- two conflicting titles
- Johnson traced title back to group of white settlers who purchased deeds to certain lands in Illinois from two Nat. Am. tribes (Illinois and Piankeshaw) in 1773 and 1775
- M’Intosh traced title to grant from US in 1818 (US had acquired the land by treaty w/ the tribes)
- Nat. Am.’s not represented in the proceedings
5
Q
Johnson v. M’Intosh - Decision and Reasoning
A
- Marshall invoked principle of discovery - said US traced its claim back to Cabot’s discovery of North Am.-> therefore US had sole right to determine who could make deals w/ Nat. Am to extinguish their rights of occupancy
- said this meant Nat. Am.’s had nothing to convey to Johnson under nemo dat
6
Q
Johnson v. M’Intosh - Evaluation of Nat. A. Rights
A
- Marshall dismissed Nat. Am. rights - said native use and occupancy of the land didn’t count as possession in the Western sense (not intensive or exclusive enough to count as property)
- contrary to this contention, history shows Nat Am’s did have property concepts - mixed private property in implements w/ various mixtures of private property, common property, + open access for agricultural + hunting uses
7
Q
Johnson v. M’Intosh - Underlying Theory Behind Decision
A
- Marshall expressed reservations about morality of principle of discovery, but treated its use as inevitable - many think he only decided the way he did b/c didn’t want to mess w/ thousands of titles in US that depended on validity of acts extinguishing Indian title
8
Q
Impact of Discovery on Colonization
A
- book says lessened potential deadly conflicts between European powers
- for Nat. Am., meant they faced monopsony (monopoly on buyers side) in selling their rights to land (since gov could determine who they could sell to) - further depressed prices (which were already sometimes impacted by deception, coercion, violence, + disease on Nat. Am. populations)
- book says states might’ve imposed harsher policies on Nat Am’s w/o fed gov though
- clarified title
9
Q
Mining Law
A
- relies on discovery - claimant must locate + discover valuable mineral deposit (discovery doesn’t imply full control in possessory sense - just being first to identify + claim the resource is key)
10
Q
Creation
A
- resource can be said to owe its existence at least in part to prospective owner’s act
- most relevant to intellectual property
11
Q
Info vs. Physical Resources
A
- information as a resource is special - nonrival + more nonexcludable than typical tangible resource
- but info is costly to produce - high fixed costs of production are incurred by first producer only (vs. close to zero for others)
- dynamic incentive problem (how do you get people to create the info?) but no allocative problem (one person’s consumption doesn’t interfere with another’s)
12
Q
Why do you need property concept of information at all?
A
- need to give people an incentive to discover and develop stuff
- there’s no problem on the consumption side (the more people that use it, the better - don’t interfere w/ each other’s use at all)
- incentive resolves problem of provision of info, but could create issues on consumption side that weren’t there before
13
Q
INS v. AP - Facts
A
- INS wasn’t reporting on WWI the way Britain and France wanted, so they got kicked out of briefings
- INS started copying or using (with rewrite) uncopyrighted reports from AP’s newspapers for its own newspapers (note that at this time, copyright didn’t attach immediately as it does now - would’ve required registration, impractical for news)
- AP sued INS
14
Q
INS v. AP - Holding
A
- majority held the AP had a quasi-property right in the news it gathered + INS had misappropriated this right
- “quasi” b/c doesn’t bind the whole world - very careful to limit misappropriation of hot news to competitors (didn’t want to declare news a thing from which all others could be excluded)
- distinguishes property right good against the world from rights as between competitors
15
Q
INS v. AP - Brandeis Dissent
A
- Brandeis concerned that majority has functionally created a new property right, beyond those sanctioned by Congress - legislature better suited to handle the complex problem
- default is free competition - unless narrow IP rights apply, info is free to common use (unless there’s a patent, you’re free to imitate)
16
Q
INS v. AP - Custom
A
- holding may have some basis in custom - news orgs generally respected each other’s rights to stealing scoops
17
Q
INS v. AP - Influence
A
- case has come to stand for narrower application of creation as a mode of acquisition - news orgs have right to prevent competitors from free-riding on gathering “hot news”, but hasn’t been extended to other forms of creation (ex: fashion)
- note that news competitors allowed to investigate the story as a lead or use the info after the news value has decreased sufficiently
18
Q
IP and Excessive Rights
A
- people in IP do worry about excessive rights as well as protecting own rights - if you restrict too much, the info can’t really circulate + it doesn’t really benefit people
19
Q
Accession
A
- note that accession is used to refer to both a general legal principle and a more specific doctrine
20
Q
Accession - General Principle
A
- another original acquisition principle
- general concept: the awarding of things that are unowned (or whose ownership is contested) to the owner of the most prominent thing in the vicinity that is owned (the owner that has the most prominent connection to the contested object)
21
Q
Doctrines Included in the General Principle of Accession
A
- ad coelum
- increase
- accretion
- fixtures
- accession (doctrine)
- ratione soli
22
Q
Rule of Increase
A
- baby animals are owned by the owners of the baby animal’s mother
23
Q
Accession - Doctrine
A
- if you mix your labor w/ something owned by someone else, you get to keep the improved thing (not always - certain factors and tests get evaluated)
- if in good faith someone mixes something w/ and/or physically transforms some less valuable tangible object, then the owner of the more valuable (unique) thing can acquire the other thing by paying damages
24
Q
Accession Doctrine and Original Acquisition
A
- the accession doctrine in a narrow sense isn’t really original acquisition - the thing was owned and you just made a mistake
- just determines which remedies apply in certain actions by owners of personal property to recover the property after it has passed w/o their consent into the hands of another
25
Accession Doctrine - General Factors to Evaluate
- degree of transformation of the object (more difficult to identify original object in the final, more likely courts will award final product to laborer
- comparison of relative values (more value added by laborer, more likely court will find for laborer)
- GOOD FAITH - only those who mistakenly mix labor w/ thing in good faith can claim accession
26
Accession Doctrine - General Results of Court's Decision
- if laborer wins, generally has to pay original owner damages for amount of value of unimproved thing
- if original owner wins, laborer can try to claim restitution for value of labor (supplement book says difficult)
27
Wetherbee v. Green - Facts
- Wetherbee offers evidence he believed he had permission from owner of some black ash trees to cut them down + use to make barrel hoops
- Wetherbee manufactured 158,000 hoops w/ market value (according to his evidence) of nearly $700, compared to standing timber's value of $25
- turns out permission given in error, + original owner sues to recover the hoops (replevin)
28
Wetherbee v. Green - Procedural Posture
- trial judge won't allow Wetherbee to give his evidence of good faith + increased value of hoops vs. timber
29
Wetherbee v. Green - Decision + Reasoning
- court holds that accession is applicable - remands saying that Wetherbee should be allowed to give his evidence on good faith and value
30
Wetherbee v. Green - Accession Doctrine
(i) mental state of improver (good faith is required to get benefit of damages approach)
(ii) degree of transformation of the object (assuming good faith, need substantial difference from the original object to establish possession)
(iii) relative value contributed by the original owner and the improver (disproportionate hardship - would be unjust to improver if owner got to keep product of labor)
31
Accession Doctrine and Relative Value
- according to notes on Wetherbee v. Green, there's an implicit on/off threshold for relative value - improver must contribute at least 50% of the value
- how far beyond the 50% the improver must contribute is a judgment call
32
Wild Animal Cases and Accession
- ratione soli - by reason of the ground - wild animals captured go to the owner of the land where the capture occurs
33
Ad Coelum
- another ex of the principle of accession
ownership of the surface means you own the airspace + the subsurface in a column of space running upward and downward from the surface boundaries
34
Edwards v. Sims - Facts
- Edwardses own mouth of Great Onyx Cave + had explored it - now show as tourist attraction
- there's a dispute in Edwards v. Lee over who owns the portion of the cave under Lee's land (not accessible from Lee's land, but possibly underneath it)
- Lee gets an order from the trial judge (Sims) saying that a survey can be made to see if the Edwardses are actually trespassing on Lee's portion of the cave -> Edwardses sue Judge Sims to prevent this inquiry
35
Edwards v. Sims - Decision + Reasoning
- majority denies the writ Edwards requested - survey can happen
- applies title version of ad coelum (vs. possibly saying you can only own so much of the property as you can exercise dominion over)
36
Law of Fixtures
- deals w/ q of (in case of sale, lease, or mortgage) whether or not certain items (appliances, drapes, mirrors, etc.) go w/ the premises or are personal property belonging to the seller, leasor, mortgagor + can be taken away
- only governs in absence of special agreement (ie. I can put in the sale that I'm taking a special chandelier, etc.)
37
Factors Considered for Law of Fixtures
- custom can be a guide
- whether or not something is bolted in (ex: mirror attached to wall = fixture, especially if would cause damage in removal)
- whether or not something is custom-designed to fit a particular space
- courts may look to identity of improver (ex: owners more likely to "enrich the freehold" than tenants)
38
Strain v. Green - Facts
- Greens sell house to Strains, then strip it of everything they can before Strains move in - chandeliers, mirrors, Venetian blinds, hot water heater
- big q - personal property vs. fixtures (fixtures are merged w/ the real property)
39
Strain v. Green - Decision + Reasoning
- trial court says Venetian blinds (custom-made) + hot water heater = fixtures - Greens don't debate this on appeal
- trial court says chandeliers + mirrors not fixtures -> on appeal, court says chandeliers = fixtures + mirrors are split - the ones attached to wall by hook belong to Greens, + ones attached to wall w/ screws + plywood belong to Strain
40
Trespass by Overflight
- definitions below from Restatement (Fourth) of Property
- an actor who intentionally directs or causes an aerial object to enter airspace possessed by another = subject to liability for land
- an actor who intentionally directs/causes an aerial object to enter an unpossessed airspace that another has right to possess subject to liability for trespass by way of injunctive relief or award of more than nominal damages only if the entry interferes substantially w/ other's use + enjoyment of possessed subjacent space
41
Ad Coelum and Airspace
- Prof Smith talked about his "bubble" theory - idea that owner is in possession of at least a certain amount of space above the surface ("bubble" around the buildings) + we have some social awareness of what this means
- beyond this, you don't possess, though theoretically have the right to possess (Hinman)
