Property.week1

\Johnson v. M'Intosh

Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823),[2] is a landmark decision of the U.S. Supreme Court that held that private citizens could not purchase lands from Native Americans. As the facts were recited by Chief Justice John Marshall, the successor in interest to a private purchase from the Piankeshaw attempted to maintain an action of ejectment against the holder of a federal land patent.

The case is one of the most influential and well-known decisions of the Marshall Court, a fixture of the first-year curriculum in nearly all US law schools. Marshall's prosaic and eminently quotable opinion lays down the foundations of the doctrine of aboriginal title in the United States, and the related discovery doctrine. However, the vast majority of the opinion is dicta; as valid title is a basic element of the cause of action for ejectment, the holding does not extend to the validity of M'Intosh's title, much less the property rights of the Piankeshaw. Thus, all that the opinion holds with respect to aboriginal title is that it is inalienable, a principle that remains well-established law in nearly all common law jurisdictions.

Citation to Johnson has been a staple of federal and state cases related to Native American land title for 200 years. Like Johnson, nearly all of those cases involve land disputes between two non-Native parties, typically one with a chain of title tracing to a federal or state government and the other with a chain of title predating US sovereignty. A similar trend can be seen in the early case law of Australia, Canada, and New Zealand. The first land dispute involving an indigenous party to reach to the Supreme Court wasCherokee Nation v. Georgia (1831).

Background[edit]

Thomas Johnson, one of the first Supreme Court justices, bought land from Piankeshaw Native American tribes in 1773 and 1775. The plaintiffs were lessees of Thomas Johnson's descendants, who had inherited the land. The defendant, William M'Intosh(pronounced "McIntosh"), subsequently obtained a land patent, according to the facts as Marshall accepted them, to this same land from the United States federal government. In fact, the two parcels did not overlap at all.[3] Further, there is evidence that the parties were aware the tracts did not overlap and purposely misrepresented the facts to the court to obtain a ruling.[4]

Prior history[edit]

The plaintiffs brought an action for ejectment against M'Intosh in the United States District for the District of Illinois, contending that their chain of title was superior by virtue of Johnson's purchases. The District Court dismissed the claim on the grounds that the Piankeshaw were not able to convey the land.

Opinion[edit]

Marshall, writing for a unanimous court, affirmed the dismissal.

Marshall begins with a lengthy discussion of history of the European discovery of the Americas and the legal foundations of the American Colonies. In particular, Marshall focuses on the manner in which each European power acquired land from the indigenous occupants. Synthesizing the law of nations, Marshall traces the outlines of the "discovery doctrine"—namely, that a European power gains radical title (also known as sovereignty) to the land it discovers. As a corollary, the discovering power gains the exclusive right to extinguish the "right of occupancy"

of the indigenous occupants, which otherwise survived the assumption of sovereignty.

Marshall further opined that when they declared independence from Great Britain, the United States government inherited the British right of preemption over Native American lands. The rlegal result is that the only Native American conveyances of land which can create valid title are sales of land to the federal government.[5]

Legacy[edit]

Law and economics

At least one commentator has noted that Johnson, by holding that only the federal government could purchase Native American lands, created a system of monopsony, which avoided bidding competition between settlers and thus enabled the acquisition of Native American lands at the lowest possible cost.[6]

Role in law school curriculum

Prof. Stuart Banner at UCLA School of Law, writes of the case:Johnson's continuing prominence is reinforced every year in law schools, where it is the very first case most beginning students read in their required course in Property. The best-selling property casebook calls Johnson 'the genesis of our subject' because it lays 'the foundations of landownership in the United States.' Given current sympathies for Native American, the outcome of the case has come to be viewed with disapproval in law school. Johnson has joined Dred Scott v. Sandford and a few others to form a small canon (or maybe an anti-canon) of famous cases law students are taught to criticize. The leading casebook describes the philosophy underlying Johnson as 'discomforting' and quotes with approval the recent view of a law professor that Marshall's opinion 'was rooted in a Eurocentric view of the inferiority of the Indian [sic] people.' Johnson, though, might be the only member of this anti-canon that remains the law, and that is still cited as authority by lower courts several times a year.[7]

Notes[edit]

1. Jump up  Kades, 148 U. Pa. L. Rev. at 1098 ("[T]he basis for the holding in M'Intosh: custom. Phrases like 'understood by all,' 'exercised uniformly,' and 'universal recognition' appeal to long-established practice, not to any specific constitutional, statutory, or common law rule.").

2. Jump up  Davison v. Gibson, 56 Fed. Rep., 443. SEC. 156. Citing the case of Johnson v. McIntosh (8 Wheat.,585), the court quotes: "It has never been doubted that cither the United States or the several States had a clear title to all the lands within the boundary lines described in the treaty with Great Britain of 1783 (8 Stat.L.,80) subject only to the Indian right of occupancy,and that the exclusive power to extinguish that right was vested in the Government, which might constitutionally exercise it."

3. Jump up  Kades, 148 U. Pa. L. Rev. at 1092 ("Mapping the United Companies" claims alongside M'Intosh's purchases, as enumerated in the district court records, shows that the litigants' land claims did not overlap. Hence, there was no real 'case or controversy,' and M'ntosh, like another leading early Supreme Court land case, Fletcher v. Peck, appears to have been a sham." (footnotes omitted)).

4. Jump up  Kades, 148 U. Pa. L. Rev. at 1093 ("M'Intosh did not contest a single fact alleged in the complaint, jurisdictional or otherwise. Perhaps he participated in framing the complaint, which became the stipulated facts of the case. Neither the district court nor the Supreme Court questioned any of these facts. Everyone involved, it seems, wanted a decision on the legal question of the validity of private purchases from the Native Americans." (footnote omitted)).

5. Jump up  Banner, 2005, pp. 178-188.6. Jump up  Kades, 148 U. Pa. L. Rev. at 1189 ("With its customary rule

against private purchases of Native American land, reaffirmed in M'Intosh, the state prevented competitive bidding for Native American lands. It drew on a special cadre of career Native American negotiators to buy land cheaply. . . . [T]he bottom line was the bottom line: acquiring Native American lands at least cost. . . . [M]inimizing cost were not simple. . . . Threats . . . were often not credible, and so the United States pursued all the negotiating tricks . . . .").

7. Jump up  Banner, 2005, p. 11--12.

Further reading[edit]

Robert Williams, Jr., The American Indian in Western Legal Thought: The Discourses of Conquest (1989).

Walter Echo-Hawk , In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided (2010).

Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (2005).

Lindsay G. Robertson, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (2005).

Jean Edward Smith , John Marshall: Definer Of A Nation (1996). Michael C. Blumm, Retracing the Discovery Doctrine, Aboriginal Title, Tribal

Sovereignty, and Their Significance to Treaty-Making in the United States, 28 Vt. L. Rev. 713 (2004).

Eric Kades, The Dark Side of Efficiency: Johnson v. M'Intosh and the Expropriation of American Indian Lands, 148 U. Pa. L. Rev. 1065 (2000).

Eric Kades, History and Interpretation of the Great Case of Johnson v. M'Intosh, 19 L. & Hist. R. 67 (2001).

Blake A. Watson Buying America From the Indians: "Johnson v. McIntosh" and the History of Native Land Rights (University of Oklahoma Press; 2012) 494 pages

Carino v. Insular Government212 U.S. 449 (1909)

U.S. Supreme CourtCarino v. Insular Government, 212 U.S. 449 (1909)

Carino v. Insular Government of the Philippine Islands

No. 72

Argued January 13, 1909

Decided February 23, 1909

212 U.S. 449

ERROR TO THE SUPREME COURT

OF THE PHILIPPINE ISLANDS

Syllabus

Writ of error is the general, and appeal the exceptional, method of bringing Cases to this Court. The latter method is in the main confined to equity cases, and the former is proper to bring up a judgment of the Supreme Court of the Philippine Islands affirming a judgment of the Court of Land Registration dismissing an application for registration of land.

Although a province may be excepted from the operation of Act No. 926 of 1903 of the Philippine Commission which provides for the registration and perfecting of new titles, one who actually owns property in such province is entitled to registration under Act No. 496 of 1902, which applies to the whole archipelago.

While, in legal theory and as against foreign nations, sovereignty is absolute, practically it is a question of strength and of varying degree, and it is for a new sovereign to decide how far it will insist upon theoretical relations of the subject to the former sovereign and how far it will recognize actual facts.

Page 212 U. S. 450

The acquisition of the Philippines was not for the purpose of acquiring the lands occupied by the inhabitants, and under the Organic Act of July 1, 1902, c. 1369, 32 Stat. 691, providing that property rights are to be administered for the benefit of the inhabitants, one who actually owned land for many years cannot be deprived of

it for failure to comply with certain ceremonies prescribed either by the acts of the Philippine Commission or by Spanish law.

The Organic Act of the Philippines made a bill of rights embodying safeguards of the Constitution, and, like the Constitution, extends those safeguards to all.

Every presumption of ownership is in favor of one actually occupying land for many years, and against the government which seeks to deprive him of it, for failure to comply with provisions of a subsequently enacted registration act.

Title by prescription against the crown existed under Spanish law in force in the Philippine Islands prior to their acquisition by the United States, and one occupying land in the Province of Benguet for more than fifty years before the Treaty of Paris is entitled to the continued possession thereof.

7 Phil. 132 reversed.

The facts are stated in the opinion.

Page 212 U. S. 455

MR. JUSTICE HOLMES delivered the opinion of the Court.

This was an application to the Philippine Court of Land Registration for the registration of certain land. The application was granted by the court on March 4, 1904. An appeal was taken to the Court of First Instance of the Province of Benguet on behalf of the government of the Philippines, and also on behalf of the United States, those governments having taken possession of the property for public and military purposes. The Court of First Instance found the facts and dismissed the application upon grounds of law. This judgment was affirmed by the supreme court, 7 Phil. 132, and the case then was brought here by writ of error.

The material facts found are very few. The applicant and plaintiff in error is an Igorot of the Province of Benguet, where the land lies. For more than fifty years before the Treaty of

Page 212 U. S. 456

Paris, April 11, 1899, as far back as the findings go, the plaintiff and his ancestors had held the land as owners. His grandfather had lived upon it, and had maintained fences sufficient for the holding of cattle, according to the custom of the country, some of the fences, it seems, having been of much earlier date. His father had cultivated parts and had used parts for pasturing cattle, and he had used it for pasture in his turn. They all had been recognized as owners by the Igorots, and he had inherited or received the land from his father in accordance with Igorot custom. No document of title, however, had issued from the Spanish Crown, and although, in 1893-1894 and again in 1896-1897, he made application for one under the royal decrees then in force, nothing seems to have come of it, unless, perhaps, information that lands in Benguet could not be conceded until those to be occupied for a sanatorium, etc., had been designated -- a purpose that has been carried out by the Philippine government and the United States. In 1901,

the plaintiff filed a petition, alleging ownership, under the mortgage law, and the lands were registered to him, that process, however, establishing only a possessory title, it is said.

Before we deal with the merits, we must dispose of a technical point. The government has spent some energy in maintaining that this case should have been brought up by appeal, and not by writ of error. We are of opinion, however, that the mode adopted was right. The proceeding for registration is likened to bills in equity to quiet title, but it is different in principle. It is a proceeding in rem under a statute of the type of the Torrens Act, such as was discussed in Tyler v. Court of Registration, 175 Mass. 71. It is nearer to law than to equity, and is an assertion of legal title; but we think it unnecessary to put it into either pigeon hole. A writ of error is the general method of bringing cases to this Court, an appeal the exception, confined to equity in the main. There is no reason for not applying the general rule to this case.Ormsby v. Webb,134 U. S. 47, 134 U. S. 65; Campbell v. Porter,162 U. S. 478; Metropolitan R. Co. v. District of Columbia,195 U. S. 322.

Page 212 U. S. 457

Another preliminary matter may as well be disposed of here. It is suggested that, even if the applicant have title, he cannot have it registered, because the Philippine Commission's Act No. 926, of 1903, excepts the Province of Benguet among others from its operation. But that act deals with the acquisition of new titles by homestead entries, purchase, etc., and the perfecting of titles begun under the Spanish law. The applicant's claim is that he now owns the land, and is entitled to registration under the Philippine Commission's Act No. 496, of 1902, which established a court for that purpose with jurisdiction "throughout the Philippine Archipelago," § 2, and authorized in general terms applications to be made by persons claiming to own the legal estate in fee simple, as the applicant does. He is entitled to registration if his claim of ownership can be maintained.

We come, then, to the question on which the case was decided below -- namely, whether the plaintiff owns the land. The position of the government, shortly stated, is that Spain assumed, asserted, and had title to all the land in the Philippines except so far as it saw fit to permit private titles to be acquired; that there was no prescription against the Crown, and that, if there was, a decree of June 25, 1880, required registration within a limited time to make the title good; that the plaintiff's land was not registered, and therefore became, if it was not always, public land; that the United States succeeded to the title of Spain, and so that the plaintiff has no rights that the Philippine government is bound to respect.

If we suppose for the moment that the government's contention is so far correct that the Crown of Spain in form asserted a title to this land at the date of the Treaty of Paris, to which the United States succeeded, it is not to be assumed without argument that the plaintiff's case is at an end. It is true that Spain, in its earlier decrees, embodied the universal feudal theory that all lands were held from the Crown, and perhaps the general attitude of conquering nations toward people not recognized as entitled to the treatment accorded to those

Page 212 U. S. 458

in the same zone of civilization with themselves. It is true also that, in legal theory, sovereignty is absolute, and that, as against foreign nations, the United States may assert, as Spain asserted, absolute power. But it does not follow that, as against the inhabitants of the Philippines, the United States asserts that Spain had such power. When theory is left on one side, sovereignty is a question of strength, and may vary in degree. How far a new sovereign shall insist upon the theoretical relation of the subjects to the head in the past, and how far it shall recognize actual facts, are matters for it to decide.

The Province of Benguet was inhabited by a tribe that the Solicitor General, in his argument, characterized as a savage tribe that never was brought under the civil or military government of the Spanish Crown. It seems probable, if not certain, that the Spanish officials would not have granted to anyone in that province the registration to which formerly the plaintiff was entitled by the Spanish laws, and which would have made his title beyond question good. Whatever may have been the technical position of Spain, it does not follow that, in the view of the United States, he had lost all rights and was a mere trespasser when the present government seized his land. The argument to that effect seems to amount to a denial of native titles throughout an important part of the island of Luzon, at least, for the want of ceremonies which the Spaniards would not have permitted and had not the power to enforce.

The acquisition of the Philippines was not like the settlement of the white race in the United States. Whatever consideration may have been shown to the North American Indians, the dominant purpose of the whites in America was to occupy the land. It is obvious that, however stated, the reason for our taking over the Philippines was different. No one, we suppose, would deny that, so far as consistent with paramount necessities, our first object in the internal administration of the islands is to do justice to the natives, not to exploit their country for private gain. By the Organic Act of July 1, 1902, c. 1369, § 12, 32 Stat. 691, all the property and rights acquired there by the

Page 212 U. S. 459

United States are to be administered "for the benefit of the inhabitants thereof." It is reasonable to suppose that the attitude thus assumed by the United States with regard to what was unquestionably its own is also its attitude in deciding what it will claim for its own. The same statute made a bill of rights, embodying the safeguards of the Constitution, and, like the Constitution, extends those safeguards to all. It provides that

"no law shall be enacted in said islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws."

§ 5. In the light of the declaration that we have quoted from § 12, it is hard to believe that the United States was ready to declare in the next breath that "any person" did not embrace the inhabitants of Benguet, or that it meant by "property" only that which had become such by ceremonies of which presumably a large part of the inhabitants never had heard, and that it proposed to treat as public land

what they, by native custom and by long association -- one of the profoundest factors in human thought -- regarded as their own.

It is true that, by § 14, the government of the Philippines is empowered to enact rules and prescribe terms for perfecting titles to public lands where some, but not all, Spanish conditions had been fulfilled, and to issue patents to natives for not more than sixteen hectares of public lands actually occupied by the native or his ancestors before August 13, 1898. But this section perhaps might be satisfied if confined to cases where the occupation was of land admitted to be public land, and had not continued for such a length of time and under such circumstances as to give rise to the understanding that the occupants were owners at that date. We hesitate to suppose that it was intended to declare every native who had not a paper title a trespasser, and to set the claims of all the wilder tribes afloat. It is true again that there is excepted from the provision that we have quoted as to the administration of the property and rights acquired by the United States such land and property as shall be designated by the President for military or other reservations,

Page 212 U. S. 460

as this land since has been. But there still remains the question what property and rights the United States asserted itself to have acquired.

Whatever the law upon these points may be, and we mean to go no further than the necessities of decision demand, every presumption is and ought to be against the government in a case like the present. It might, perhaps, be proper and sufficient to say that when, as far back as testimony or memory goes, the land has been held by individuals under a claim of private ownership, it will be presumed to have been held in the same way from before the Spanish conquest, and never to have been public land. Certainly, in a case like this, if there is doubt or ambiguity in the Spanish law, we ought to give the applicant the benefit of the doubt. Whether justice to the natives and the import of the organic act ought not to carry us beyond a subtle examination of ancient texts, or perhaps even beyond the attitude of Spanish law, humane though it was, it is unnecessary to decide. If, in a tacit way, it was assumed that the wild tribes of the Philippines were to be dealt with as the power and inclination of the conqueror might dictate, Congress has not yet sanctioned the same course as the proper one "for the benefit of the inhabitants thereof."

If the applicant's case is to be tried by the law of Spain, we do not discover such clear proof that it was bad by that law as to satisfy us that he does not own the land. To begin with, the older decrees and laws cited by the counsel for the plaintiff in error seem to indicate pretty clearly that the natives were recognized as owning some lands, irrespective of any royal grant. In other words, Spain did not assume to convert all the native inhabitants of the Philippines into trespassers, or even into tenants at will. For instance, Book 4, Title 12, Law 14 of the Recopilacion de Leyes de las Indias, cited for a contrary conclusion in Valenton v. Murciano, 3 Phil. 537, while it commands viceroys and others, when it seems proper, to call for

the exhibition of grants, directs them to confirm those who hold by good grants or justa prescripcion. It is true that it

Page 212 U. S. 461

begins by the characteristic assertion of feudal overlordship and the origin of all titles in the King or his predecessors. That was theory and discourse. The fact was that titles were admitted to exist that owed nothing to the powers of Spain beyond this recognition in their books.

Prescription is mentioned again in the royal cedula of October 15, 1754, cited in 3 Phil. 546:

"Where such possessors shall not be able to produce title deeds, it shall be sufficient if they shall show that ancient possession, as a valid title by prescription."

It may be that this means possession from before 1700; but, at all events, the principle is admitted. As prescription, even against Crown lands, was recognized by the laws of Spain, we see no sufficient reason for hesitating to admit that it was recognized in the Philippines in regard to lands over which Spain had only a paper sovereignty.

The question comes, however, on the decree of June 25, 1880, for the adjustment of royal lands wrongfully occupied by private individuals in the Philippine Islands. This begins with the usual theoretic assertion that, for private ownership, there must have been a grant by competent authority; but instantly descends to fact by providing that, for all legal effects, those who have been in possession for certain times shall be deemed owners. For cultivated land, twenty years, uninterrupted, is enough. For uncultivated, thirty. Art. 5. So that, when this decree went into effect, the applicant's father was owner of the land by the very terms of the decree. But, it is said, the object of this law was to require the adjustment or registration proceedings that it described, and in that way to require everyone to get a document of title or lose his land. That purpose may have been entertained, but it does not appear clearly to have been applicable to all. The regulations purport to have been made "for the adjustment of royal lands wrongfully occupied by private individuals." (We follow the translation in the government's brief.) It does not appear that this land ever was royal land or wrongfully occupied. In Article 6, it is provided that

"interested parties not included within the two preceding

Page 212 U. S. 462

articles [the articles recognizing prescription of twenty and thirty years] may legalize their possession, and thereby acquire the full ownership of the said lands, by means of adjustment proceedings, to be conducted in the following manner."

This seems, by its very terms, not to apply to those declared already to be owners by lapse of time. Article 8 provides for the case of parties not asking an adjustment of the lands of which they are unlawfully enjoying the possession, within one year,

and threatens that the treasury "will reassert the ownership of the state over the lands," and will sell at auction such part as it does not reserve. The applicant's possession was not unlawful, and no attempt at any such proceedings against him or his father ever was made. Finally, it should be noted that the natural construction of the decree is confirmed by the report of the council of state. That report puts forward as a reason for the regulations that, in view of the condition of almost all property in the Philippines, it is important to fix its status by general rules on the principle that the lapse of a fixed period legalizes completely all possession, recommends in two articles twenty and thirty years, as adopted in the decree, and then suggests that interested parties not included in those articles may legalize their possession and acquire ownership by adjustment at a certain price.

It is true that the language of Articles 4 and 5 attributes title to those "who may prove" possession for the necessary time, and we do not overlook the argument that this means may prove in registration proceedings. It may be that an English conveyancer would have recommended an application under the foregoing decree, but certainly it was not calculated to convey to the mind of an Igorot chief the notion that ancient family possessions were in danger, if he had read every word of it. The words "may prove" (acrediten), as well, or better, in view of the other provisions, might be taken to mean when called upon to do so in any litigation. There are indications that registration was expected from all, but none sufficient to show that, for want of it, ownership actually gained would be lost.

Page 212 U. S. 463

The effect of the proof, wherever made, was not to confer title, but simply to establish it, as already conferred by the decree, if not by earlier law. The royal decree of February 13, 1894, declaring forfeited titles that were capable of adjustment under the decree of 1880, for which adjustment had not been sought, should not be construed as a confiscation, but as the withdrawal of a privilege. As a matter of fact, the applicant never was disturbed. This same decree is quoted by the Court of Land Registration for another recognition of the common law prescription of thirty years as still running against alienable Crown land.

It will be perceived that the rights of the applicant under the Spanish law present a problem not without difficulties for courts of a different legal tradition. We have deemed it proper on that account to notice the possible effect of the change of sovereignty and the act of Congress establishing the fundamental principles now to be observed. Upon a consideration of the whole case, we are of opinion that law and justice require that the applicant should be granted what he seeks, and should not be deprived of what, by the practice and belief of those among whom he lived, was his property, through a refined interpretation of an almost forgotten law of Spain.

Judgment reversed.

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Popov v. Hayashi

Popov v. Hayashi (WL 31833731 Ca. Sup. Ct. 2002) was a California Superior Court case involving scope of ownership between parties and conversion regarding a baseball acquired at a Major League Baseball game. The question present in this case is who has ownership of an item when one acquired it legally, but lost it due to the criminal act of another third party, allowing the other person to, by all standard acquire the item legally.[1][2][3][4]

Background[edit]

At a Major League baseball game, Barry Bonds was about to hit a record-setting homerun and thus the baseball he hit was highly sought after and incredibly valuable. When he hit it, it flew into the stands and plaintiff Alex Popov was there to catch it. The ball entered his glove but he was immediately attacked by a large group of individuals, causing him to drop the ball and fall to the ground underneath a pile of persons.[3][1][4][2]

At that same time, defendant Patrick Hayashi was also knocked over by the same group of wrongdoers. While on the ground the ball rolled towards him and he picked it up claiming it as his own. He did not wrong Popov in any way and had acquired the ball legally. Popov believed the ball was rightfully his and, when Hayashi refused, took the case to court. The whole event was videotaped allowing all parties to view it.[3][1][4][2]

Case[edit]

Popov sued Hayashi for conversion, believing that once it had touched his glove the baseball became his and although Hayashi came about it legally, he still had the duty to return it to its rightful owner.[3][1][4][2]

Before the baseball was hit, it was considered property of MLB and after it was hit was considered intentionally abandoned property. Under this pretext, whoever comes into possession of it first is the rightful owner.[3][1][4][2]

However, in all legal sense, Hayashi had come by the ball lawfully as well. In fact, if Popov had dropped the ball without having been attacked by the group of wrongdoers, it would have still been considered abandoned property that would be acquired by whomever successfully grasped it first.[3][1][4][2]

The court considered that legal possession in this instance requires successfully attaining it and the intent to possess. Popov did both of these and so upon his losing it, it was considered his property. However, simultaneously, the court considered that his loss of it cancelled his possession of it and thus Hayashi was in legal possession. But simply giving Hayashi the rights to it would be unfair as well, as Popov would likely have certainly been in possession of it if not attacked by the wrongdoers.[3][1][4][2]

Decision[edit]

The court eventually concluded that both parties had rights to the ball and neither could be deprived of it lawfully, and the best solution was an equitable division. The two of them would sell the ball and split the proceeds evenly.[3][1][4][2]

For this decision the court set a new precedent of qualified pre-possessory interest allowing for both Popov to claim his property had been converted and it was still his, while also allowing Hayashi legal rights over the ball.[3][1][4][2]

Significance[edit]

This was such an unusual case in property law since if any of the facts were slightly different it would have completely changed the decision of the case and given complete ownership to one party over the other. If Popov had not been attacked and dropped the ball on his own accord, Hayashi would have been the legal owner. Conversely, if Hayashi had been one of the wrongdoers he would have committed wrongful conversion and the ball would legally be Popov’s property.[3][1]

[4][2]

This case sets a precedent for similar scenarios where simple conversion of rightful property is not easy to determine. In cases where rightful ownership cannot be distinguished between parties, it is acceptable and reasonable to split the ownership evenly.[3][1][4][2]

References[edit]

1. ^ Jump up to: a  b c d e f g h i j k "Property: Popov v. Hayashi". Invisible College Press.

2. ^ Jump up to: a  b c d e f g h i j k "Summary of Popov v. Hayashi (2002), 2002 2002 WL 31833731". 4 Law School.

3. ^ Jump up to: a  b c d e f g h i j k "Popov v. Hayashi – Case Brief Summary". Lawnix.

4. ^ Jump up to: a  b c d e f g h i j k "Popov v Hayashi, 2002 WL 31833731, (Cal Superior Ct)". Casebrief.me.

Margaret Jane Radin, Property and Personhood

34 Stan. L. Rev. 957 (1982)I. PROPERTY FOR PERSONHOOD: AN INTUITIVE VIEW

Most people possess certain objects they feel are almost part of themselves. These objects are closely bound up with personhood because they are part of the way we constitute ourselves as continuing personal entities in the world. They may be as different as people are different, but some common examples might be a wedding ring, a portrait, an heirloom, or a house.

One may gauge the strength or significance of someone's relationship with an object by the kind of pain that would be occasioned by its loss. On this view, an object is closely related to one's personhood if its loss causes pain that cannot be relieved by the object's replacement. If so, that particular object is bound up with the holder. For instance, if a wedding ring is stole from a jeweler, insurance proceeds can reimburse the jeweler, but if a wedding ring is stolen from a loving wearer, the price of a replacement will not restore the status quo--perhaps no amount of money can do so. 

The opposite of holding an object that has become a part of oneself is holding an object that is perfectly replaceable with other goods of equal market value. One holds such an object for purely instrumental reasons. The archetype of such a good is, of course, money, which is almost always held only to buy other things. A dollar is worth no more than what one chooses to but with it, and one dollar bill is as good as another. Other examples are the wedding ring in the hands of the jeweler, the automobile in the hands of the dealer, the land in the hands of the developer, or the apartment in the hand of the commercial landlord. I shall call these theoretical opposites--property that is bound up with a person and property that is held purely instrumentally--personal property and fungible property respectively. 

Why refer these intuitions to personhood at all? It may appear that the category I call personal property could be described as simply a category of property for personal autonomy or liberty. Property for personal autonomy or liberty might be a class of objects or resources necessary to be a person or whose absence would

hinder the autonomy or liberty attributed to a person. Bu there is something more in an affirmative notion of an individual being bound up with an external "thing." If autonomy is understood as abstract rationality and responsibility attributed to an individual, it fails to convey this sense of connection with the external world. Neither does liberty, if understood in the bare sense of freedom from interference by others with autonomous choices regarding control of one's external environment.

Once we admit that a person can be bound up with an external "thing" in some constitutive sense, we can argue that by virtue of this connection the person should be accorded broad liberty with respect to control over that "thing." But here liberty follows from property for personhood; personhood is the basic concept, not liberty. Of course, if liberty is viewed not as freedom from interference, or "negative freedom," but rather as some positive will that by acting on the external world is constitutive of the person, then liberty comes closer to capturing the idea of the self being intimately bound up with things in the external world.

It intuitively appears that there is such a thing as property for personhood because people become bound up with "things." But this intuitive view does not compel the conclusion that property for personhood deserves moral recognition or legal protection, because arguably there is bad as well as good in being bound up with external objects. If there is a traditional understanding that a well-developed person must invest herself to some extent in external objects, there is no less a traditional understanding that one should not invest oneself in the wrong way or to too great an extent in external objects. Property is damnation as well as salvation, object-fetishism as well as moral groundwork.

In this view, the relationship between the shoe fetishist and his shoe will not be respected like that between the spouse and her wedding ring. At the extreme, anyone who lives only for material objects is considered not to be a well-developed person, but rather to be lacking some important attribute of humanity.

II. THE ROLE OF THE CONCEPT OF PERSON

The intuitive view of property for personhood just stated is wholly subjective: self-identification through objects varies from person to person. But if property for personhood cannot be viewed as other than arbitrary and subjective, then personal objects merely represent strong preferences, and to argue for their recognition by the legal system might collapse to a simple utilitarian preference summing. To avoid this collapse requires objective criteria differentiating good from bad identification with objects in order to identify a realm of personal property deserving recognition. The necessary objective criteria might be sought by appeal to extrinsic moral reality, to scientific truths of psychology, or to the concept of person itself. Taking the latter route, this Part approaches the problem of developing a standard for recognizing claims to personal property by referring to the concept of "person" itself. If that concept necessarily includes certain features, then those features can determine what personal property is while still avoiding ethical subjectivism.

A. Theories of the Person

The polymorphous nature of the word "person" inevitably creates problems for a moral thesis about property built upon notions of personhood. "Person" stems from the Latin persona, meaning, among other things, a theatrical role. In Roman law, persona came to mean simply an entity possessing legal rights and duties. Today it commonly signifies any human being. But for philosophers the nature of a person has never been reduced to a generally accepted theory. An overview of their continuing debate suggests four main lines of theory.

Perhaps closest to the persona of Roman law, the first conception is of the person as rights-holder. For Kant, the person is a free and rational agent whose existence is an end in itself. I shall call Kantian the view of person focusing on universal abstract rationality. In this view, personhood has no component of individual human differences, but rather by definition excludes the tastes, talents, and individual histories that differentiate one from another.

Another classical view of the person makes its essential attribute self-

consciousness and memory. Locke defines a person as "a thinking intelligent being, that has reason and reflection, and can consider itself as itself, the same thinking thing in different times and places." For Locke, memory signifies this continuous self-consciousness. Locke's theory still holds great appeal for those who puzzle over the mysteries of personal identity. 

These two classical views are compatible with thinking of persons as disembodied minds or immaterial essences. In contrast is the view that persons are human bodies. The sophisticated version is that continuous embodiment is a necessary but not sufficient condition of personhood. To recognize something as a person is, among other things, to attribute bodily continuity to it. Indeed, Wittgenstein says that the best picture of the human soul is the human body.

Last, some theorists find these traditional views too pale, and suggest that the individual's ability to project a continuing life plan into the future is as important as memory or continuing consciousness. Allied with this is the view that what counts in recognizing something as a person is a consistent character structure. Persons are what they are in virtue of their past and future integrated by their character.

Other ways of thinking about persons may not fall within these four rough categories. The thorough empiricist or metaphysical skeptic may say there is no such "thing" as a person. To that end, Hume argues that a person is "nothing but a bundle or collection of different perceptions," and that the feeling of self-identify over time is merely a persistent illusion. The behavioral psychologist might say that the self is nothing separate from the body's processes and activity in the environment. In a similarly empirical and skeptical vein, a positive economist might conceive of a person as nothing but a bundle or collection of tastes and desires, conventionally recognized as a unit; but the economist must borrow enough of the Kantian view to attribute instrumental rationality to this aggregate. Alternatively, non-behavioral psychologists may think of the person as a self, a subject of mental states. This conception relates both to the Lockean self-consciousness theory of the person and to the theory of character structure. Still, the structural postulates of Freudian theory may perhaps be considered a separate theory of the person.

A communitarian would find all of those concepts of personhood wrongheaded because they all derive from the individualistic worldview that flowered in western society with the industrial revolution. In a society in which the only human entity recognized in social intercourse is some aggregate like the family or clan, there could not be such intense philosophical attention to the biological individual and its ontological, psychological, moral and political status. In view of the individualist roots of those theories of the person, it comes as no surprise that thinkers who wish to progress from an individualist to a communitarian world-view are impatient with them. Communitarians see the myth of the self-contained "man" in a state of nature as politically misleading and dangerous. Persons are embedded in language, history, and culture, which are social creations; there can be no such thing as a person without society.

For the sake of simplicity, I shall initially confine my inquiry to the types of the person posited by the more traditional, individual-oriented theories. But the communitarian critique reminds us that the idea of the person in the abstract should not be pushed beyond its usefulness. In what follows I shall on occasion attempt to pay attention to the role of groups both as constituted by persons and as constitutive of persons.

B. Property and Theories of the Person

Bypassing for the moment Kantian rationality and Lockean memory, let us begin with the person conceived as bodily continuity. Locke says that "every Man has a Property in his own Person," from which it immediately follows that "[t]he Labour of his Body, and the Work of his hands . . . are properly his." Though, as we have seen, Locke elsewhere considers the person as reflective consciousness and memory, he may well mean here that one literally owns one's limbs and hence must own their product. If not, perhaps property in one's person should be understood to mean simply that an individual has an entitlement to be a person or to be treated as a person. This would probably include the right to self-

preservation on which Locke bases the right to appropriate.

If it makes sense to say that one owns one's body, then, on the embodiment theory of personhood, the body is quintessentially personal property because it is literally constitutive of one's personhood. If the body is property, then objectively it is property for personhood. This line of thinking leads to a property theory for the tort of assault and battery: Interference with my body is interference with my personal property. Certain external things, for example, the shirt off my back, may also be considered personal property if they are closely enough connected with the body. 

The idea of property in one's body presents some interesting paradoxes. In some cases, bodily parts can become fungible commodities, just as other personal property can become fungible with a change in its relationship with the owner: Blood can be withdrawn and used in a transfusion; hair can be cut off and used by a wigmaker; organs can be transplanted. On the other hand, bodily parts may be too "personal" to be property at all. We have an intuition that property necessarily refers to something in the outside world, separate from oneself. Though the general idea of property for personhood means that the boundary between person and thing cannot be a bright line, still the idea of property seems to require some perceptible boundary, at least insofar as property requires the notion of thing, and the notion of thing requires separation from self. This intuition makes it seem appropriate to call parts of the body property only after they have been removed from the system. 

Another paradox is whether replacing any of my body parts with fungible plastic makes me a different person, and whether the plastic parts once inserted should be considered personal property or something else. The plastic parts question represents the converse of the problem concerning the sale of natural organs. The natural organ becomes fungible property when removed from the body, but remains purely personal, thus seemingly not property, while it is still inside the body. Conversely, plastic parts are fungible when sold to the hospital, but once inserted they are no longer fungible, and should be considered as the natural organs they replace, hence perhaps no longer property at all.

Next, let us consider the person as individual rationality, the Kantian person. If persons are bare abstract rational agents, there is no necessary connection between persons and property. Therefore, Kantian rationality cannot yield an objective theory of personal property. One might introduce external objects to a population of Kantian persons in the state of nature or in Rawls's original position to see how they divide things among themselves (and so it might be hard to think of justice among these persons without property), but object relationships are still not a necessary corollary to the concept of personhood in this view.

In Locke's view of persons as continuing self-consciousness characterized by memory, the external world may enter the concept of person. Memory is made of relationships with other people and the world of objects. Much of the property we unhesitatingly consider personal--for example, family albums, diaries, photographs, heirlooms, and the home--is connected with memory and the continuity of self through memory. But the pure Lockean conception of personhood does not necessarily imply that object relations (and the expected continuity of those relations that property gives) are essential to the constitution of persons, because that conception is disembodied enough not to stress our differentiation from one another. It is possible to hold the Lockean conception and still believe that memory is part of an immaterial essence of the person that has no inherent connection to the material world. But in a neo-Lockean view rejecting such dualism and making self-differentiation important, it seems object relations are necessary and central to self-constitution. 

Finally, let us consider the view that what is important in personhood is a continuing character structure encompassing future projects or plans, as well as past events and feelings. The general idea of expressing one's character through property is quite familiar. It is frequently remarked that dogs resemble their masters; the attributes of many material goods, such as cars and clothes, can proclaim character traits of their owners. Of course, many would say that becoming too enthralled with property takes away time and energy needed to develop other faculties constitutive of personhood. But, for example, if you express

your generosity by giving away fruits that grow in your orchard, then if the orchard ceases to be your property, you are no longer able to express your character. This at least suggests that property may have an important relationship to certain character traits that partly constitute a person.

This view of personhood also gives us insight into why protecting people's "expectations" of continuing control over objects seems so important. If an object you now control is bound up in your future plans or in your anticipation of your future self, and it is partly these plans for your own continuity that make you a person, then your personhood depends on the realization of these expectations. This turn to expectations might seem to send property theory back toward Bentham, who declared that "the idea of property consists in an established expectation." But this justification for honoring expectations is far from Benthamite, because it applies only to personal property. In order to conclude that an object figuring into someone's expectations is personal, we must conclude both that the person is bound up with the object to a great enough extent, and that the relationship belongs to the class of "good" rather than "bad" object-relations. Hence we are forced to face the problem of fetishism, or "bad" object-relations.

C. The Problem of Fetishism

We must construct sufficiently objective criteria to identify close object relations that should be excluded from recognition as personal property because the particular nature of the relationship works to hinder rather than to support healthy self-constitution. A key to distinguishing these cases is "healthy." We can tell the difference between personal property and fetishism the same way we can tell the difference between a healthy person and a sick person, or between a sane person and an insane person. In fact, the concepts of sanity and personhood are intertwined: At some point we question whether the insane person is a person at all. Using the word "we" here, however, implies that a consensus exists and can be discerned. Because I seek a source of objective judgments about property for personhood, but do not wish to rely on natural law or simple moral realism, consensus must be a sufficient source of objective moral criteria--and I believe it can be, sometimes, without destroying the meaning of objectivity. In the context of property for personhood, then, a "thing" that someone claims to be bound up with nevertheless should not be treated as personal vis-a-vis other people's claimed rights and interests when there is an objective moral consensus that to be bound up with that category of "thing" is inconsistent with personhood or healthy self-constitution.

Judgments of insanity or fetishism are both made on the basis of the minimum indicia it takes to recognize an individual as one of us. There does not seem to be the same reason to restrain a private fetishist as there would be to restrain an insane person prone to violence against others. But the restraint of denying the fetishist's property special recognition as personal is less severe than that imposed on someone deemed violently insane. To refuse on moral grounds to call fetishist property personal is not to refuse to call it property at all. The immediate consequence of denying personal status to something is merely to treat that thing as fungible property, and hence to deny only those claims that might rely on a preferred status of personal property.

A broader aspect of the problem of fetishism is suggested by Marx's "fetishism of commodities." Marx attributed power in a market society to the commodities that form the market. He believed that people become subordinate in their relations to these commodities. In other words, under capitalism property itself is anti-personhood.

Even if one does not accept that all capitalist market relations with objects destroy personhood, it is probably true that most people view the caricature capitalist with distaste. Most people might consider her lacking in some essential attribute of personhood, such as the capacity to respect other people or the environment. If there is some moral cut-off point, beyond which one is attached too much or in the wrong way to property, the extent to which someone may emulate the caricature capitalist and still claim property for personhood is not clear, but is not unlimited. Although the caricature capitalist cannot express her nature without control over a vast quantity of things and other people, her need for this control to constitute herself the complete capitalist could not objectively be recognized as personal

property because at some point there is an objective moral consensus that such control is destroying personhood rather than fostering it.

Pierson v. Post

Pierson v. Post, 3 Cai. R. 175, 2 Am. Dec. 264 [1]  (N.Y. 1805)[2], is a Supreme Court of New York case about a disagreement over a dead fox that serves as an important cornerstone in American legal education.

Background[edit]

Lodowick Post, a fox hunter, was chasing a fox through a vacant lot when Pierson came across the fox and, knowing it was being chased by another, killed the fox and took it away. Post sued Pierson on an action for trespass on the case for damages against his possession of the fox. Post argued that he had ownership of the fox as giving chase to an animal in the course of hunting it was sufficient to establish possession. The trial court found in favor of Post. On appeal after the trial, the issue put to the Supreme Court of Judicature of New York was whether one could obtain property rights to a wild animal (Ferae naturae), in this case the fox, by pursuit.

Ruling[edit]Majority opinion[edit]

The majority opinion was written by future Vice President of the United States Daniel Tompkins. The Court cited ancient precedent in deciding the case:

If we have recourse to the ancient writers upon general principles of law, the judgment below is obviously erroneous. Justinian's Institutes, and Fleta, adopt the principle, that pursuit alone vests no property or right in the huntsman; and that even pursuit, accompanied with wounding, is equally ineffectual for that purpose, unless the animal be actually taken. The same principle is recognized by Bracton.

Puffendorf defines occupancy of beasts feræ naturæ, to be the actual corporeal possession of them, and Bynkershoeck is cited as coinciding in this definition. It is indeed with hesitation that Puffendorf affirms that a wild beast mortally wounded, or greatly maimed, cannot be fairly intercepted by another, whilst the pursuit of the person inflicting the wound continues. The foregoing authorities are decisive to show that mere pursuit gave Post no legal right to the fox, but that he became the property of Pierson, who intercepted and killed him.[Citations omitted]

The court reasoned that given the common law requirement to have control over one's possessions, merely giving chase was not sufficient. Something more was needed, otherwise law would create a slippery slope.

If the first seeing, starting, or pursuing such animals, without having so wounded, circumvented or ensnared the animal, so as to deprive them of their natural liberty, and subject them to the control of their pursuer, should afford the basis of actions against others for intercepting and killing them, it would prove a fertile course of quarrels and litigation.

The majority opinion found that though it may have been rude for Pierson to have killed the fox, there was no reason to object as only the person to mortally wound or seize the animal can acquire possession of it.

Among the authorities cited by the court in its opinion were the works of William Blackstone, Fleta, Jean Barbeyrac, Samuel von Pufendorf, Hugo Grotius, and Justinian I.Dissent[edit]

The dissent was authored by future Supreme Court Justice Henry Brockholst Livingston.

The dissent was not satisfied by the authorities used. Instead it was argued that pursuit should be considered sufficient, as it serves a useful purpose of encouraging hunters to rid the countryside of that "wild and noxious beast" known as the fox. The dissent further acknowledged that possession can be seen in relative terms where the continued chase may merely be a formality of the pre-existing control already exerted by the hunter.

Conclusion[edit]

The trial court was reversed so Pierson did not have to pay any damages. As one commenter wrote:

Jesse Pierson, son of Capt. David, coming from Amagansett, saw a fox run and hide down an unused well near Peters Pond and killed and took the fox. Lodowick Post and a company with him were in pursuit and chasing the fox and saw Jesse with it and claimed it as theirs, while Jesse persisted in his claim. Capt. Pierson said his son Jesse should have the fox and Capt. Post said the same of his son Lodowick and hence the law suit contested and appealed to the highest court in the Statewhich decided that Post had not got the possession of the fox when Pierson killed it and that he had no property in it as against Pierson until he had reduced it into his own possession. This became the leading case often cited because it established; and I think, for the first time, by the court of last resort in the State, that to give an individual right in wild animals, the claimant must capture them. To the public the decision was worth its cost. To the parties who each expended over a thousand pounds, the fox cost very dear.

-James T. Adams, Memorials of Old Bridgehampton 166 (1916, 1962)

On the other hand, Bethany R. Berger notes in It's Not About the Fox: The Untold Story of Pierson v. Post[1] that the dispute may have really been about use of the land on which the fox was caught, part of the commons in which Pierson's family, like other descendants of the original settlers of Bridgehampton, had special rights.

See also[edit]

Roman law Keeble v Hickeringill Rule of capture

Notes[edit]

 3 Cai. R. 175 is an abbreviation for volume 3 of Caines' Reports, page 175, which was in turn named for George Caines, who reported New York cases in the early 19th century.

 Full text of the opinion

Further reading[edit]

B. Berger, "It's Not About the Fox: The Untold History of Pierson v. Post", (2006) 55 Duke L.J. 1089

D. Dharmapala & R. Pitchford, "An Economic Analysis of 'Riding to Hounds': Pierson v. Post Revisited" (2002) 18 J.L. Econ. & Org. 39

A. McDowell, "Legal Fictions in Pierson v. Post" (2007) 105 Mich. L. Rev. 735 J. Krier, "Facts, Information, and the Newly Discovered Record in Pierson v.

Post" (2009) 27 Law & Hist. Rev. 189 R. Partain, "Moerman versus Pierson: The Nexus of Occupancy in Animals

Ferae Naturae and Liability in Tort", (2012) 28 Soongsil L. Rev. 241 D. Ernst, "Pierson v. Post: The New Learning", (2009) 13 GREEN BAG 2D 31

External links[edit]

The opinion Case Brief for Pierson v. Post at Lawnix.com

References[edit]

1. Jump up  55 Duke L.J. 1089, 1130, 1133 (2006)