PROPERTY I
I. Acquiring property
A. Acquisition by Capture: un-owned property that is captured (wild animals, fugitive minerals) becomes the property of the person effecting the capture.
1. Generally requires some conflict
2. Un-owned thing must be possessed to become property.
3. What constitutes actual possession of the un-owned thing is usually determined by policy and/or custom.
4. Pierson v. Post: fox hunt.
5. Ghen v. Rich: whale hunt.
6. Keeble v. Hickeringill:
B. Acquisition by Discovery: related to first possession
1. Elements:
a. First in time to discover
b. Physical possession
C. Acquisition by Creation: intellectual property (copyright, patent, and trademark)
1. Degree of exclusivity of creator?
2. International News Service v. Associated Press
3. Cheney Bros. v. Doris Silk Corp.
4. No absolute right to use and exploit
D. Right to Exclude: possession contains a right to exclude others from possession, but the right is not absolute.
1. Owner may be required to tolerate some unwanted incursions.
II. Subsequent Possession
A. Abandoned property: true owner voluntarily intends to give up ownership of property.
1. Abandoned property is un-owned and first possessor becomes true owner unless circumstances of possession are wrongful (finder is a trespasser).
2. Van Valkenburgh v. Lutz
B. Lost property: lost when owner does not know that it is missing
1. Relinquish possession unintentionally
C. Mislaid property: lay property down but forget to pick it back up
1. Relinquish possession unintentionally
2. Factors = place, intent, and value
3. Finder of lost or mislaid property has better claim to title than anyone, but the true owner.
4. Absolute right belongs to original owner
5. Some circumstances where the owner of the property on which the lost or mislaid property is found may have better claim than finder.
6. Finder v. Landowner:
a. If property is lost and finder is not a trespasser, the finder prevails. Finder loses to the landowner if the finder is an employee or invitee of the landowner or the object is embedded in the soil.
b. If the property is mislaid, the landowner prevails, because the owner of the mislaid property is more likely to retrace steps and locate it where it was misplaced.
D. Property in one’s person
1. Moore v. Regents of Univ. of Ca.
III. Adverse Possession:
A. Elements:
1. Actual Entry: adverse possessor must actually enter and take exclusive possession of the property
2. Open and notorious: the adverse possession must be readily detectable to a true owner by being the type of occupation the true owner would make
a. Actual notice: what you do know
b. Constructive notice: what you should know
c. Inquiry: raises questions
3. Hostile or under claim of right:
a. Good faith: adverse possessor actually believes in good faith that he is entitled t
in a THIRD PARTY
Fee Simple (Absolute)
None
None
Fee Simple Subject to Condition Subsequent
Right of Re-entry
Fee Simple Determinable
Possibility of Reverter
Fee Simple Subject to Executory Limitations
Executory Interest
Life Estate
Reversion
Remainder (vested/contingent)
Leasehold
Reversion
A. Fee Simple:
1. Law favors
2. Fee Simple Absolute: has no perpetual duration and no natural end.
a. A -> B
b. No Future Interest
3. Fee simple subject to condition subsequent;
a. IBOP – If, But, On condition that, Pursuant to (words that identify a fee simple subject to condition subsequent)
b. Right of Re-entry (Grantor): may only be created in the grantor
1. Must re-enter the land to regain interest
4. Fee simple determinable
a. WSUD – While, So long as, Until, During (words that identify a fee simple determinable)
b. Possibility of Reverter (Grantor): created only in the grantor
1. Freely transferable or devisable
5. Fee Simple subject to Executory Limitation
a. Example: O to A so long as A uses the property for a gym, then to E.
