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Property I
Elon University School of Law
Rivers James, Faith

Property Outline: Faith Rivers-James, Property I & II, Spring 2016

Defining Property:

Personal property: tangible things that you can pick up and move (stuff)

Tangible versus intangible property

Real property: things that you can’t pick up and move (homes/land)

Fixtures: things attached to real property


4 Sticks in the “Bundle of Rights”:


You don’t get all the sticks in all ownerships

Principle of First Possession: by virtue of first possession, one can make an un-owned thing, or a thing enjoyed by all in common, one’s own.


Allocating Property Rights (to something not yet owned):

1) Acquisition by Discovery

Principle of First in Time: “the notion that being there first somehow justifies ownership rights.”

Property Right Maxim: “first in time, first in right.”

Flows throughout entirety of property and ownership

(AKA) Principle of First Possession: by virtue of first possession, one can make an unowned thing, or a thing enjoyed by all in common, one’s own.

Principle of Discovery: discovery gave title to the person who discovered the land—the only ways to gain title to land are:

1) Conquest
2) Purchase

Principle of Discovery Rule: (Johnson)

1) Discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.
2) Discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or conquest.

2) Acquisition by Capture

Rule of Capture: the rule of capture follows directly from the principle of first in time; therefore, “first in time, first in right” is always the first rule of capture.

A person gains right/possession to a wild animal through occupancy, or, possession, by 1) intending to intercept the animal in such a manner so as to 2) deprive them of their natural liberty, and to make their 3) escape impossible, or, keep it under a certain control.
Exception: there are two exceptions to the rule of capture, including: 1) the role of custom, and 2) interference with trade.

If there is sufficient capture, as well as a role of custom at play, then the role of custom will be followed as the valid exception to the rule.
If there is sufficient capture, but interference with trade at play, then the interference with trade will be followed as a valid exception to the rule.

Escape: if a wild animal has been captured, and it escapes, it is a wild animal again and anyone has claim to it.

Exception: if the hunter is put on notice because:

1) The animal is not native to the area—the hunter should infer that the animal is someone else’s property; OR
2) There is some tag or brand on the animal—the hunter should infer that the animal is not native to the area.

Rule of Increase (Offspring): the offspring of animals belong to the owner of the mother.

Doctrine of Ration Soli: the doctrine of ration soli provides that you are in constructive possession of all wild animals on your land—constructive possession provides that the law deems the landowners to be the possessors of any animals ferae naturae on their land until the animals take off.

Animus Revertendi (exception): even if the animal “takes off,” the original possessor does not leave his title if the animal is in the habit of returning to his property.

Fugitive Resources: “first in time, first in right.”

Oil and Gas: ownership of oil and gas should be settled in terms of the rule of capture of wild animals—both oil & gas, and wild animals, have the ability to “escape without the volition of the owner.” Therefore, oil and gas belong to the owner of the land, and are part of it, so long as they are 1) on or in it, and are 2) subject to his control; but when they escape and go into another’s property, or come under another’s control, the title of the former owner is gone.
Water: “first in time” is equivalent to “prior appropriation;” therefore, the person who first appropriates (captures) water and puts it to reasonable and beneficial use has a superior right to later appropriators of that water.

3) Acquisition by Find: the primary concern of the law of finders is to protect the true owner.

Maxim: “the title of the finder is good as against the whole world but the true owner”—the finder who comes in possession of a thing has good title against the whole world except those having a better title (true owner or prior possessor.)
Acquisition by find in property refers to relationships among people with respect to things, rather than relationships between a person and a thing.

Relative Title: relative title provides that one person has a “better” relative title than another—it is possible to maintain an action if your title is relatively better than the other’s even if you are not the true owner. The meaning of the phrase true owner depends upon who the other claimants are—title, or ownership, is relative.

Possession: a prior possessor prevails over a subsequent possessor—this rule applies to cases involving both land and personal property. The rule of prior possession is generally invoked only in support of honest claimants, but there are cases to the contrary, where some courts allow a wrongdoer possessory interest.

Where an actor takes significant but incomplete steps toward full control, but is interrupted by a wrongful act, he has a prepossessory interest—a qualified right of interest.

Possession of Personal Property: when determining the possession of property acquired by find, the categories to examine are the 1) intent of the true owner, 2) the category of the property, and 3) the relativity of title (who really has possession/better title.)

* You can often tell from the placement of the thing whether it was intentionally or unintentionally placed.

Categories of Property: there are three categories of property, including 1) lost property, 2) mislaid property, and 3) abandoned property—“a finder of property acquires no rights in mislaid property, is entitled to possession of lost property, against everyone except the true owner, and is entitled to keep abandoned property.”

1) Lost Property: property that was unintentionally/accidentally placed somewhere

Rights: lost property goes to the finder (

d 2) where the things intended to be given are not present, OR where present, are 3) incapable of manual delivery from their size and weight.

Where the articles are 1) present and 2) capable of manual delivery, this must be had.

Symbolic Delivery: handing over something symbolic of the property given.

The usual case of symbolic delivery involves handing over a written instrument declaring a gift of the subject matter.

Three types of gifts: a gift causa mortis is a gift made in anticipation of death—if you don’t die, then it revokes the gift (must redeliver the gift if you don’t die.) A gift inter vivos is a gift made during life—gifts made inter vivos cannot be revoked. A conditional gift is made upon the condition of some future event—if the gift was made upon a condition, and the condition is not fulfilled, then the donee must return the gift (including engagement rings.)

Courts are conservative about gifts causa mortis due to fraud occurring in the midst of the death of the donor—manual delivery is still required because the court will not allow you to “skirt around the statute of wills” just because you’re on your death bed.


Adverse Possession:

Adverse possession occurs when you don’t have title to property, but you use it, and if you use it long enough, you get title by adverse possession—adverse possession can be reconciled with the principle of 1st in time by looking at the property as abandoned—the first finder is entitled to make effective use of the property.

There are three main functions reflected in the theories of adverse possession, including 1) protecting the person that does the work—improves or cultivates the land (earning theory); 2) punishing the person “sleeping” on their property rights (sleeping theory); and 3) protecting the integrity of the record system (quiet title.)


Earning Theory: the earning theory seeks to reward the industrious person who moves onto the empty property and makes beneficial use of it.
Sleeping Theory: the sleeping theory provides the idea a property owner is “sleeping” on his rights to the property if he doesn’t realize that someone is using the property—not paying enough attention to it—it is up to the owner to regularly check on his land to make sure that someone is not using his property (squatter.)
Quiet Title: quieting title is a reasoning behind the theory of adverse possession, which “quiets the titles” of other possible possessors and protects the integrity of the record system.