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Property I
Elon University School of Law
Rivers James, Faith

Professor Rivers-James
Property Outline
Fall 2012
Elon University School of Law
Real Property: Land and the things attached to it.
Personal Property: anything that is not real property
–          Tangible
–          Intangible- music, degree, etc.
Fixtures are the things in the middle.
Property: Rights and relationships between people about things
–          Metaphysical Properties – relationships about things.
John Locke – When one uses his labor to make or acquire something, his labor gives him title.
–          Labor theory of Property.  
Hardin- The tragedy of the commons. – Overuse by individuals depleting entire resources. 
Demsetz – Creating personal property of the commons. Parking Meter ex.  
Radin- what a person is willing to pay makes property value; property and personhood- how much the property is part of oneself.
Benthem- Law makes property; no law- no property; the things a person wears might not be his own.
Pollution – Externalities that are not considered in the price of a good. Ex. McDonalds.
I.        First Possession: Acquisition of Property by Discovery, Capture, and Creation
A.  Acquisition by Discovery
Ø  Johnson vs. McIntosh – 1823 (yr. of lawsuit) – John Marshall Opinion.
Johnson buys the land from Piankeshaw nations 1775; McIntosh buys the same land from the US Gov. in 1818
 Court holds for McIntosh. Rule –  the Indians only had the right to possess and use, but did not have power to transfer or exclude. Therefore the transfer of title to Johnson by the Indian chief was of no legal effect.
Indians were rightful occupants, had power of possession and use, but they could not transfer. – Title of occupancy
Rule of discovery- gave an exclusive right to extinguish the Indian title of occupancy by purchase or conquest.
o    The European Countries had established a principle of discovery – the country whose subjects first discovered the land obtained exclusive title to the property; with regards only to the title of occupancy of the natives which could be extinguished either by purchase or conquest.
– The four Sticks in the bundle of rights:  Right to possess, use, transfer, and exclude – OWNERSHIP
B.   Acquisition by Capture 
Pierson v. Post – Rule of Capture – Trespass Case
Fox case – Post In his mere pursuit of the fox did not dispense property rights since he  
Rule of Capture:  1. Must deprive of natural liberty, 2. with intent, and 3. bringing it under certain control
Dissent: Court should encourage sportsmanship, and since foxes are ferocious beasts and society purpose was to kill them. The court of law should by its decisions encourage hunters by giving the rights of this fox to Post.
Ghen (P) v. Rich (D)/Respondent – Libel Case – (admiralty form of trespass case.)
Whale is shot with bomb lance by Plaintiff. Another finds it 3 days later on the beach 17 miles away and sells it to defendant. Custom in this industry is to               report the finding and so the killer can get his whale and pay the finder salvage fee.
–          Could apply the rule of capture by interpreting (bringing it under certain control) – to mean as much as possible. Active pursuit.
Exception of Custom has to be adhered to by everything in the trade.
 Court holds: favor of plaintiff. Whoever affixes the harpoon or other whaling craft to the body of the whale and remains in fresh pursuit  has exclusive right to it. Judge states – “this branch of the industry must necessarily cease; for no person would engage in it if the fruits of his labor could be appropriated by any chance finder”
Rule of Capture: Possession of wild animal:
1.    Intent
2.    Deprive of liberty
3.    Certain Control
a.     Custom
b.    Malicious interference with trade or business.
c.     Animus Revertendi – if the animal has a habit of returning we can't apply the rule of capture because the animal is domesticated.
d.    Out of natural habit – exceptions. (ex. Fox imported from Canada)
e.    Constructive Possession, Ratione Soli – Possession of wild animal because it is located on one’s property. (If you have 50 acres in the woods you are in constructive possession of every animal on the land.)
Keeble (P) v. Hickeringill (D) – Trespass Case
Keeble owned land with decoy pond; Hickeringill shoots into woods to scare ducks and ducks leave. P sues D for damages.
Every man that has property may use it for his pleasure and profit, and it is as lawful to use art to seduce, capture and kill the ducks as it is to kill ones tame cattle. Malicious intent to harm the other party makes the action wrong.
 You can compete but can't get an unfair advantage. Rule of Capture Exception: Can't have a malicious interference with trade or business.
 Example: (Nearby school can lure students to it, but could not do so by standing at the door of the other school with a gun to scare students away)
Problem 1 Pg. 33  O, T, T1 – wild animal on O's Land taken by trespass on part of T. T1 trespasses on T’s land and takes it.
In the case of T v. T1 ( T wins) Relativity of Title – sometimes we don't have the person in real title as a party in the case so the better case wins. 
O has first rights but if O goes back on T's property to recover animal. – SELF HELP. In many jurisdictions, O would lose.
Problem 2. pg. 33  F Has domesticated deer graze on Gov.  land in day. H Shoots the deer while on Government land. F might be the owner because of the exception to the rule of capture, Animus Revertendi. However; Competing customs here – The custom of hunters? The custom of animal domestication.  
Problem 3. Paula has imported special foxes from Canada. After doing her best to secure the fox from escape, he escapes anyway. Hunter shoots and Paula sues. Animus Revertendi nor Racion Soli apply but, Out of natural habit – exception. The fox should belong to Paula.
Oil and Gas Laws.
–          Under the common law system oil and gases are treated as wild animals.
They belong to the owner of the land as long as: 1) they are on or in it 2) subject to his control 3) If they escape, title is lost.
–          B drills on B's property – draining the shared pool of oil btw. A & B. Does A have any right. He can drill his own, but otherwise the rule of capture applies here.
–          B's well starts on his land but angles down on A's land below. Property line goes from the sky to the depths of the earth. B can't cross the property line. Can't trespass below or above the ground.
I.           Water Laws
a.        Flowing Water
o    English System: Rule of Capture and No apportionment
o     American System- Reasonable Use and Administrative Regulation
b. Surface Water
o     Eastern States – Have access to the water – riparian rights.
o     Western States: Prior Appropriation (1st)  Limited by reasonable and beneficial use
Remedies of a Possessor:
1.       Replevin – suit for recovery of chattel (personal possession)
2.       Trover – suit for recovery of damages
3.       Trespass – Punitive damages may be awarded for an intentional trespass.
II.      Subsequent Possession: Acquisition of Property by Find, Adverse Possession, and Gift
A.      Acquisition by Find
Pre-owned Property  – Lost, mislaid, or abandoned.
   Classifications of Property – determined by location of find.
1. Lost – Finder has rights against the whole world except for the true owner
    – Accidental placement and done involuntarily
    Exceptions to Lost Rule:
§  If the finder is an employee or in agency relationship – Locus owner has ownership rights
§  If the finder is a trespasser.
§  If it is a private locus
§  Embedded in the soil (goes to own

op. State of NC — 30 yrs for adverse possession. …….21 yrs if color of title.
Once Adverse possession elements have been met title passes automatically
Ø  Van Valkenburgh v. Lutz – (Hostile to True Owner element)
Lutz has garden, makes pathway, 100 ft boundary of logs, has shack, garage encroachment all on neighboring lot for statutory amount of time.
1st law suit – Lutz sues V.V., alleging V.V. is owner, for easement across property – court grants, V.V. refuses
2nd law suit – V.V. sues for removal of Lutz possessions and Lutz replies to have title by adverse possession.
Rule: possessor must actually occupy premises “under claim of title” hostile to true owner. This is shown by: substantial enclosure of premises, usual cultivation, or improvements.
Holding: cultivation was not enough to justify, nor was there substantial enclosure. Shack does not prove substantial improvement
The garage encroachment title not claimed hostile to the true owner – mistake; Other part: Lutz admits it was not his land.
Dissent: Was significant cultivation; Claim of title hostile to true owner satisfied (simply must have intent to make yours. Substantial enclosure
Ø  Mannillo v. Gorski
Gorski Entry – improvement are made and Steps cross the line upon neighbor’s property by 15 inches
Issue:  1. Does acquiring title by adverse possession require hostile possession? 2. What evidence is required to prove open and notorious?
Rule: With small encroachments there must be actual knowledge to satisfy adverse possession.
Rule: The court may also force the party to convey the land anyway for the fair value if:
1.  There was an innocent and mistaken belief of title 2. Undue hardship would be created to tear down structure. The court will balance the harm between the parties.
 Exceptions to running full S/L period.
o    Doctrine of agreed Boundaries – if there is a boundary uncertainty between neighbors, an oral agreement settling the matter may be enforceable if the neighbors accept the line for a long period of time.
o    Doctine of Acquiescence – long acceptance without protest but less than for the statute of limitations  is evidence of the parties fixing the boundaries.
o    Doctrine of Estoppel – one party makes representations about the location of a boundary line and then another neighbor changes her position in reliance upon the representations.
Color of Title/ Constructive Adverse Possession –
o    Defective deed that gives color of title but not real title. – (if you have a bad deed you can make a claim for color of title)
o    May have shorter Statute of Limitations Period
o   Actual possession of a part of land described may give constructive adverse possession of all property described in the writing
§  Except: When actual owner is in possession of part of property; color of title may only be received for occupied portion.
o   But you still have to meet all components of adverse possession
o   If invalid title is given as one tract to a person, but it is owned by two people, the possessor must possess each person’s part individually to adversely possess.