Jones Law School
Property
Spring 2016
Professor MacLeod
1) POSSESSION
a) Discovery
Johnson v. M’Intosh – Acquisition by conquest results in superior title to land over natives à Title from US Government is superior to title from Native Americans
Natives have right to occupation but not right to ownership
Policy – Objectives of property system
Promote productivity
Minimize fighting – Lower transaction costs
Promote “fairness”
b) Capture
Pierson v. Post – Rule of capture à pursuit alone is insufficient
Physical possession
Intent to possess
Mere pursuit?
Mortal wounding – Would that will objectively prove fatal – deprive animal of liberty/subjectively manifest intent to seize the animal
Dissent – Custom hunters may argue pursuit constitutes possession sometimes
Policy
Outcome promotes certainty and is administratively cheap
Tension between peace and order vs. promoting productive activity
2) RELATIVE OWNERSHIP
Generally
Replevin – Return of taken good
Trover – Damages
Lost Property – Unintentionally misplaced property
Goes to finder
Mislaid Property – Property intentionally placed but forgotten
Goes to owner of premises
Abandoned Property – Property intentionally relinquished
Goes to finder
Exceptions
Land owner > Trespassing finder
Land owner > Guest finder
Employer > Employee
Tenant > Landowner
b) Rule of First in Time
Armory v. Delamirie – Chimney sweep trover action for jewel stolen by jeweler’s asst
Holding: Finder has title better than all the world but True Owner (TO)
Damages: Max value of a jewel that fits in the setting
NOTE: If TO shows up, TO only collects from jeweler if jeweler has not paid damages to finder à If jeweler bought jewel, TO wins, if jeweler stole the jewel and lost judgment, TO loses
Anderson v. Gouldberg – Π trespasses on TO’s land, cuts trees which Δ-mill steals
Holding: Π’s possession is lawful and superior WRT Δ
Policy
Protect prior possessor encouraging people to invest in goods
Relative ownership is simpler to implement than absolute title
Absent true owner, thief wins against subsequent finders
3) ADVERSE POSSESSION
Analysis
Hostile possession under claim of right
Objective – State of mind irrelevant (West v. Tilley, Przybylo)
Difficult for purchaser to know whether AP was possessing in good-faith
Bad Faith – Intentionally take when property is not yours (Van Valkenburgh)
Good Faith – Must think you owned the land (Van Valkenburgh)
Disincentive to trespassers
Negating Hostility
Admission of inferior title during SOL negates AP (Van Valkenburgh/Tonawanda)
Seeking permission from TO negates hostility (Tonawanda)
Presumption of Hostility
When all other elements are proven, hostility is assumed (Tonawanda)
Actual Possession
Triggers the COA for trespass
Color of Title – Partial occupancy is deemed complete occupancy
Open and Notorious
Notice to TO – sufficient to provide notice to reasonably attentive TO
Acts typical of owners of similar property in the area (Kunto/Przybylo/Tubolino)
Actual knowledge trumps reasonably attentive standard
Minor Encroachment – Does not create presumption of notice (Manillo)
Innocent encroachment results in forced sale if great hardship would result
New York – Substantial enclosure or usual improvement or cultivation when not under color of title (Van Valkenburgh/Tonawanda) à burden to demonstrate usual use
Color of Title – Ordinary use under COT is sufficient for cultivation/improvement (Tubolino)
Minor Encroachment – Forced property rule in favor of TO
Exclu
Van Valkenburgh v. Lutz – VV acquired land by tax foreclosure occupied by Lutz
NOTE: If VV gave notice of foreclosure to L, AP claim would automatically fail
Not under color of title, must show “actual” occupation substantial enclosure or usually cultivated or improved
Brother’s house – Cannot concede that land was not AP’s
Garage encroachment – No AP if unaware it is not AP’s land
Farm – Had to be enclosed or completely developed
West v. Tilley – Distinguishes VVv.L à land is enclosed by sea wall
City of Tonawanda – Used/replaced dock, Light pole, retaining wall, mowed grass
When all elements are established, hostility is presumed
Not under color of title – cultivation, enclosure, improvement kicks in
Seeking permission from TO negates hostility
Tubolino v. Drake – Paid property tax, Cut down trees, built foot bridge, posted no trespassing sign
Color of title – Use of land as an ordinary owner is sufficient to establish cultivation/improvement
AP trumps good title
Walling v. Przybylo – Bulldozed, deposited fill/topsoil, dug trench and installed pipe, watered and mowed lawn
Manillo v. Gorski – 15in encroachment
Minor encroachment does not create presumption of notice
Innocent encroachment that can’t be removed without great expense results in forced sale irrespective of notice
Howard v. Kunto – Deed to property adjacent to the one AP’s house was on
Taking with privity, and summer occupancy is continuous in summer home
