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I. Acquisition by Discovery

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Johnson v. M’Intosh (1823)

Issue: Who has valid title to land when competing claims exist - one from Native Americans and one from federal land grant? Facts:
  • Plaintiff Johnson inherited land purchased directly from Native Americans
  • Defendant claimed ownership through a federal land grant from the U.S. Government
  • Both parties claimed valid legal title
Historical Context:
  • Native Americans discovered America first
  • European settlers (Puritans) came to America seeking religious freedom and to practice conservative Christian values
  • The Puritan value system became foundational to early American law and culture
Holding/Rationale:
  • Native Americans were not practicing Christians
  • Because they did not believe in or practice Christianity (the foundational value of the nation), they could not own land
  • Native Americans could only occupy land, not own it
  • Therefore, any purported sale of land by Native Americans was ineffective - they never owned it in the first place
  • The federal land grant prevailed
Note: This case is primarily a history lesson and is not tested. It provides introduction to property concepts.

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II. Acquisition by Capture

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Pierson v. Post

Rule: Acquisition by capture requires either:
  1. Mortally wounding the animal, OR
  2. Trapping/capturing the animal
Facts:
  • Two hunters (Post and Pierson) were hunting a fox on public land
  • Post was pursuing the fox with hounds
  • Pierson intercepted and killed the fox instead
  • Question: Who has rights to the fox?
Analysis:
  • Mere pursuit of wild animal does not create property interest
  • Problems with pursuit theory:
    • How do you know the fox is running because of one specific hunter?
    • Multiple hunters could be pursuing same animal
    • Bears or other animals could also be chasing the fox
Holding: The hunter who mortally wounds or captures the fox has the vested property interest. Important Limitations:
  • Hunters must be on public land (not trespassers)
  • Cannot apply trespass and capture rules to private property
  • Law is imprecise - there will be gray areas and factually distinguishable circumstances
Key Takeaway: If the law was precise, we wouldn’t need lawyers. The law is inherently imprecise.

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Ghen v. Rich (1881)

Facts:
  • A whaler killed a fin-back whale using a bomb lance (specialized weapon with identification markings)
  • The whale sank and washed ashore days later
  • A finder discovered the whale and sold it to Rich
  • Rich sold the whale for oil
  • Ghen sued to recover value of whale, claiming ownership based on the identifying harpoon
Rule: Under local custom and public policy, the fisherman who harpooned the whale has the property interest. Rationale - Local Custom:
  • In this whaling community, harpoons had distinguishing marks identifying which company/individual inflicted them
  • The area offered a finder’s fee to incentivize return of harpooned whales
  • This economy depended on whaling
Rationale - Public Policy:
  • If finders on beach got 100% interest, the whaling trade would die
  • Nobody would engage in whaling if there was significant risk the whale would end up on someone else’s beach
  • Logistical difficulty: Retrieving every whale immediately would:
    • Be physically difficult
    • Interfere with ability to capture more whales
  • Whales often sink after being harpooned - fishermen cannot always immediately retrieve them
Distinguishing Factor: This case relied heavily on local custom and public policy considerations, making it distinguishable from Pierson v. Post.

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Popov v. Hayashi (Barry Bonds Baseball Case)

Facts:
  • Barry Bonds hit his 73rd home run baseball into the stands
  • Popov initially caught the ball in his glove
  • Popov was tackled by crowd, causing him to lose control
  • Hayashi picked up the ball after it was dislodged
  • Ball valued at over 1millioninitially(soldfor1 million initially (sold for 450,000)
Legal Claim: Popov sued Hayashi for conversion (tort - civil wrong involving wrongful exercise of dominion over another’s property) Arguments:
  • Popov’s claim: Had prepossessory interest - took significant but incomplete steps to possess the abandoned ball, but for interference of others
  • Hayashi’s claim: Had full control by picking up the ball and did nothing wrong
Holding: Court could not determine who should get the ball - both had legitimate but incomplete claims. Resolution: Court ordered the ball be sold and proceeds split between both parties.
  • Each received $225,000
  • Note: Popov’s lawyer fees allegedly consumed his share; Hayashi’s lawyer worked for less/free
Key Concept: Prepossessory interest - an interest that arises when someone takes significant steps toward possession before being wrongfully interfered with.

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III. Acquisition by Find - Lost, Mislaid, and Abandoned Property

This is TESTED material - usually appears as a “throw-in” issue worth approximately 10 points on final exam.

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Three Categories of Found Property:

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1. LOST PROPERTY

Definition: Property where the owner did NOT intend to place the item where it was found. Characteristics:
  • Typically found on the ground (suggests it fell/was dropped)
  • Owner did not intentionally place it in that location
Example: Checkbook found on the floor of a grocery store

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2. MISLAID PROPERTY

Definition: Property where the owner DID intend to place the item in that location. Characteristics:
  • Intentionally placed somewhere
  • Owner forgot to retrieve it
Examples:
  • iPhone sitting on a desk in a classroom (resting on surface = intentional placement)
  • Checkbook on checkout counter at grocery store
  • Lottery ticket taped to closet wall
  • Treasure chest buried in sand at beach

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3. ABANDONED PROPERTY

Definition: Property where the owner has relinquished all interest in the item. Characteristics:
  • Owner gave up rights to the property
  • Often found near trash cans or disposal areas
  • Context suggests intentional abandonment
Example: Painting resting near a garbage can in a park

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Critical Analysis Factors:

When characterizing found property, examine:
  1. State of the property when found:
    • Where was it located?
    • How was it positioned?
    • What does the physical state suggest about intent?
  2. Location - Public vs. Private Land:
    • Public land: Finder may have rights
    • Private land: Generally goes to landowner/occupier
    • Rationale: Owner of lost/mislaid property likely to return to location where lost
    • Makes sense to give to landowner who can return it
  3. Trespasser Rule:
    • Law does NOT reward trespassers
    • Cannot trespass on private property, find something, and claim ownership
    • Example: Cannot enter someone’s home, take items, and claim you “found” them

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Exception to Landowner Rule:

There is an exception when the landowner has never been to their own property (case to be covered in Week 2)

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Exam Approach:

Most Important: Focus on articulating the characterization of the property (lost, mislaid, or abandoned). There is often NO single right answer - the key is thorough analysis:
  • You can argue any of the three categories
  • What matters is how well you articulate your reasoning
  • Use facts about the state of the property to support your conclusion
  • Avoid “what if” scenarios - analyze based on what you find at the time
Example - Money in Brown Bag in Bathroom:
  • Could be lost (fell out accidentally)
  • Could be mislaid (intentionally placed while using restroom)
  • Could be abandoned (deliberately left behind)
  • Any answer can earn full credit with proper articulation

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Historical Note: Treasure Trove

Treasure trove is a common law concept from medieval Europe:
  • If you found treasure, it belonged to the King or Queen
  • This concept is NOT followed today in the United States
  • Modern law defaults to lost, mislaid, or abandoned analysis
Note: You will NEVER need to write “treasure trove” on a final exam. It is included only for historical context.

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Key Exam Tips:

  1. First few weeks seem easy - material gets progressively harder around Thanksgiving
  2. Lost/mislaid/abandoned is a “throw-in” issue - usually Question 3 or 4, worth ~10 points
  3. Focus on characterization - the meat of the analysis is properly categorizing the property
  4. Articulation is key - there’s often no single right answer; demonstrate your reasoning
  5. Avoid trespasser scenarios - remember property rights depend on whether finder had legal right to be there
Materials for Next Week: Continue with subsequent possession (gift and adverse possession)