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Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823),
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).
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
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.
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.
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
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.
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.
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.
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.
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
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.
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 Government
212 U.S. 449 (1909)
U.S. Supreme Court
Carino v. Insular Government, 212 U.S. 449 (1909)
Carino v. Insular Government of the Philippine Islands
Argued January 13, 1909
Decided February 23, 1909
212 U.S. 449
ERROR TO THE SUPREME COURT
OF THE PHILIPPINE ISLANDS
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
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
§ 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
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
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
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.
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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.
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.
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.
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
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.
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
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.
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.
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.
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
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.
1. ^ Jump up to:
"Property: Popov v. Hayashi". Invisible College Press.
2. ^ Jump up to:
"Summary of Popov v. Hayashi (2002), 2002 2002 WL
31833731". 4 Law School.
3. ^ Jump up to:
"Popov v. Hayashi – Case Brief Summary". Lawnix.
4. ^ Jump up to:
"Popov v Hayashi, 2002 WL 31833731, (Cal Superior
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
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
, 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.
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.
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.
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.
The trial court was reversed so Pierson did not have to pay any damages. As one commenter
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
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.
Keeble v Hickeringill
Rule of capture
^ 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
B. Berger, "It's Not About the Fox: The Untold History of Pierson v. Post", (2006) 55 Duke
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
Case Brief for Pierson v. Post at Lawnix.com
1. Jump up^ 55 Duke L.J. 1089, 1130, 1133 (2006)
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