PROPERTY I OUTLINE
Chad Emerson, Property by Dukeminier, Krier, Alexander, & Schill, 6th Edition
1) What is property?
A. Real property
B. Personal Property
2) Interest in Property
A. Discovery, Purchase, Gift, Inheritance, and Creation
3) Licenses
A. Rarity/Availability = Value. See Moore v. Regents of the University of California (69)
B. You own what is inside your body as long as it remains inside your body
4) Initial Possession
A. No Previous Owner
a. Creation
i. Actual Creator – the one who physically made it
ii. Constructive Creator – the group/persons/person who made it
b. Discovery – The first person to discover and exercise control (acquisition vs. observation)
B. Previous Owner
a. Capture – all previous possessions are, generally, erased. Acknowledgement comes after time
i. Perpetual process of securing the rights through reacquisition (captured trying to be un-captured)
ii. Wild Animals – mobile creatures who have no previous owner. They have no rights
1. Possession – the pursuer must substantially restrict the animal’s liberty (trapping/mortally wounding it)
a. Mere hunting is insufficient. See Pierson v. Post (17)
2. You can domesticate the animal and not cage it – train it to return home periodically
a. No longer a wild animal – Can’t be possessed by another who captures it
3. Upon escape, wild animals return to their original state
a. Can be caught by another
b. Exception: if wild animal is unusual in that area (giraffe in Alabama)
5) Subsequent Possession
a) Acquisition by Find
b) Adverse Possession
c) Gift
6) Finders of Property – when someone finds property, it depends upon how the property is classified as to who get ownership.
4 Classifications:
A. Lost Property – Owner unintentionally and involuntarily parted with the property and does not know where it is.
a. The finder gets possession against all except the true owner.
b. 3rd party who tries to take it because they know it was found is not entitled to possession
c. Generally found in a place you wouldn’t expect (Example – ring at a beach)
d. Even if the finder committed a tort (trespassing), the finder of lost property is entitled to possession against all but the true owner and the owner of the land on which it was found. 3rd parties may not claim it
B. Mislaid Property – Owner voluntarily puts property in a certain place but overlooked or forgot where they put it.
a. Owner of the property on which the mislaid property is found gets possession
b. Generally found in such a place that the owner will come back
C. Abandoned Property – Owner no longer wants it and relinquished their possession
a. Finder gets possession against all.
D. Treasure Trove – Coins or currency of antiquity that have been hidden (usually buried) for such a long time, the owner is probably dead or undiscoverable
a. Finder gets possession against all but true owner.
E. Value and Usefulness – if something is very valuable/useful, there is a good chance that the original owner did
urs after the theft, the statue is tolled until concealment ends
D. Some states incorporate other elements into their consideration of adequate adverse possession:
a. Good Faith – you think it’s yours. If you know you are trespassing and don’t care, you are sometimes not an adverse possessor
b. Improvement/Enclosure/Cultivation – helps to prove your open and obvious possession
c. Pay Taxes – helps to prove your open and obvious possession
d. Color of Title – discussed below
E. Color of Title – the possessor has a legal reason why he thinks he owns the property. If the possessor has color of title, the courts are more likely to award them possession by adverse possession. They MUST have the DEED.
a. privity – mutual or successive right to property from successive owners.
b. tacking – add – to add the time of possession together to satisfy time constraints of a statute.
i. If a possessor buys land from someone they thought had the ability to sell, and the true owner shows up to reclaim their land, the possessor may tack on the time period the person they bought it from had been on the land in order to fulfill the statute of limitations. There must be some relationship between the two, such as a sale.
