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Property I
Rutgers University, Newark School of Law
Henderson, Taja-Nia


I.            Basic Property Rights – The Sticks in the Bundle
a.            Right to Use
b.            Right to Alter
c.            Right of Transfer
d.            Right to Enjoy its Fruits
e.            Right to Exclude/Include
i.            Jacque v Steenberg Homes, Inc. 
S had to deliver mobile home across J’s land in snow.  Rights are only valid as long as the state will enforce them.  Landowner must haveconfidence in legal system to protect his/her interests, so S is GUILTY of trespass. The right to exclude is an essential right.
ii.            State v Shack
Doc & lawyer treated migrant farm workers; Ownership of real property does not include the right to exclude govt services available to migrant workers.  A man’s right in his real property of course is not absolute. 
f.       Right to Possess

II.            First Possession: Acquisition of Property by Discovery, Capture, and Creation
a.            First in Time Doctrine
i.            Ownership is title, legal right to property
ii.            Possession is proved by showing physical control and the intent to exclude.
1.            Possession is easier to prove than ownership
iii.            Constructive Possession: a person is in constructive possession when the law treats him as if he were in possession although he is not or is unaware of it.
iv.            Why the law protects possessors:
1.            Possession is an efficient way to prove ownership
2.            Protecting possession preserves peace and order by preventing a stronger person from ousting a possessor.
3.            Protecting possession facilitates trade
4.            Gives effect to the expectations of a person who has asserted a right in a thing
5.            In the case of capture of wild animals, it rewards persons for making a useful item available to society.
6.            Possession is an easy and efficient way of allocating resources

b.      Acquisition by Discovery – pg 3
Johnson v M'Intosh
F: P bought land from Indian tribe.  Ds received land from US govt in grant. 
H: Given rts of discovery, Indians had rts to the land as occupants, but no actual ownership.  Only govt has absolute rt of ownership.  Indians thus had no rt to sell the land, and Ds win.
o    Seminal case:  Underscores two ideas: 1) Contingency of possession depends on context, and 2) Property is a bundle of rts, and can be rearranged as such
o    Marshall’s opinion is very problematic.  Finds justification in refusal to assimilate; overwhelming weight to custom; defends colonialism.  Argues that Americans were putting land to better use than Indians.
o    Wayne: Johnson shows how malleable/easily manipulated first possession is.
o    Aboriginal Title: A small victory Indians could take away from Johnson.
o    Cronon: Bounding the Land:  Much of this opinion is based on the notion that Americans put the land to better uses and Indians let it go to waste.

c.       Acquisition by Capture – pg 18
i.      Wild Animals – Wild animals (ferae naturae) in their natural state are unwoned. They become private property upn being reduced to possession.
Acquisition of Title by Capture
a.      Possession – The first person to exercise dominion and control becomes with possession, the owner of the animal.
b.      Constructive Possession – Animals caught in a trap or net belong to the one who owns and has set the trap or net. By setting such a trap, one is said to constructively possess those animals snared.
c.       Mere Pursuit (Pierson v Post – Majority Rule) – Mere pursuit does nto constitute the exercise of domain and control sufficent to give the hunter a property right in the animal. However, where an animal has been mortally wounded so that actual is practically inevitable, a vested property right in the animal accrues that cannot be divested by another's act in intervening and killing the animal.
i.            Minority Rule – Reasonable prospect of capture… this is harder to administer.
Pierson v Post
F: Post was chasing a fox with his hounds when Pierson intervened, shot it and left with it.
H: Mere pursuit of a wild animal is not sufficient for possession.  Must capture or mortally wound/maim animal to establish possession.
o    Fear of flood of litigation by claimants saying they were in pursuit.
o    No regard for immorality of Pierson.
o    Hunters claim rt of ferae naturae (natural animal)
o    Distinguished from ratione soli (animal on the soil of owner): landowner has constructive possession of any wild animals on his land.
DISSENT:  We want animals killed & majority rule discourages hunting; should be “within reach”

d.      Trespass – While a landowner is not regarded as the owner of all wild animals found on his property, a trespasser who kills game on another's land forfeits her title in favor of the landowner. This is to prevent the act of trespassing from benefiting the trespaser.
e.       Violation of Statute – One who violates a statute forfeits her title in the animals caught pursuant thereto (e.g. failure to have a hunting licesne).
ii.            Custom
Ghen v Rich
F: Ghen killed a wale with a specially marked bomb lance notifying the finder. Rich sold the wale's blubber.
H: Custom prevails; Ghen wins & owes Rich finder’s fee & reasonable costs incurred
o    The rule that the killer of a whale is the rightful owner has been recognized and acquiesced in for many years and embraces an entire industry. The rule requires the first taker to do all that is possible under the circumstances and offers reasonable salvage to the finder for securing or reporting the property.
iii.            Interference of a Non Competitor
Keeble v Hickeringill
F: P had a decoy pond to lure ducks.  D shot off his gun to scare them off.
H: Where a violent or malicious act is done to a man’s occupation or profession or way of getting a livelihood, there is a cause of action.
o    D could open up another decoy next door and be okay.
o    Cf Pierson, which allows conservationist to scare off an animal at the last minute
iv.            Equitable Division of Captured Property
Popov v Hayashi
F: Barry Bonds baseball.  H: Ball auctioned off. 
o    Gray’s Rule: Actor must retain possession after incidental contact w/ people & things.  (Adapted from wild animals, with exceptions for things you cannot grab, like whales, but baseballs are different). 
o    However, to neglect Popov’s potential interest on Gray’s Rule would be fundamentally unfair.  There is a legal pre-possessory interest where the undertaking to gain possession is interrupted by the actions of a mob.
–         A court sitting in equity can fashion its own rules as situation requires.

Conversion: Wrongful exercise of dominion over the personal property of another.  Must be intentionally done but D needn’t know it belonged to another.
Trespass to Chattel: Exists where personal property has been damaged or where D has interfered with P’s use of the property.  (No damage or interference here.)
v.            LABOR THEORY
o     When a person invests time and energy into something, they have a possessory interest in that thing
o     Under this theory it is possible that Barry Bonds may have been able to argue that the ball was his property
·         Popov v. Hayashi (handout):  Barry Bonds hit HR, Popov (P) “caught it” momentarily until (D) Hyashi took the ball from P.
·            Used “Grey's Rule” : Actor must retain control of the object after incidental contact w people & things
·         Jacque v. Steenberg Homes (89): D asked P to cross land to deliver mobile home, P refused, D crossed land anyways bc of bad weather. 
·            “when land owners have confidence in the legal system, they are less likely to resort to “self help”
·         State v. Shack: D entered private property to aid migrant workers.
·            “neccisty, private or public, may justify entry upon the land of another….”
vi.            Reliance Interest
1.            When owners grant right of access to their property to others, they are not unconditionally free to revoke such access.  Non-owners reliance on previous access may be granted partial or full immunity from revokaction when necessary to achieve proper justice.
2.            When people create relations of mutual dependence involving joint efforts, & the relationship ends, property rights (access to or control of valued resources) must be redistributed  among parties to protect the legitimate interests of the more vulnerable person.
3.            Property rights are redistributed from owners to non-owners:
i.            To protect interest of the more vulnerable persons in reasonably relying on the continuation of the relationship;
ii.            To distribute resources earned by the more vulnerable party for contributions to joint efforts; and
iii.            To fullfill needs of the more vulnerable person
Iv.  Limits to exclusion
o    Common law limitations
·         Consent
·         Estoppel
·         Necessity
·         Public policy
·         Prescription
§   (something that's forbidden, i.e. criminally forbidden )
o    Statutory limits on the right to exclude
·         Civil rights act
·         American's with disabilities act
·         State law regarding equal accommodations
·         Federal labor laws
vii.            Fugitive Resources
1.            Oil and gases – under common law they are attributed the elements of wild animals because of their fugitive nature. Gases that are part of another element are considered to be part of that element.
a.            They “belong to the owner of the land and are part of it so long as
1.            they are on or in it and
2.            subject to his control;
3.            but when they escape or go into other land, the title of the formal owner is gone.”
b.            Amoco v. S. Ute Indian Tribe: the court rules that CBM gas was not reserved with the coal rights and therefore the right to the gas belongs to the land owner an

60 years for public property such as state forests, and wetlands
ii.      Doctrine:  Just like there are Statutes of Limitation that bar bringing of criminal prosecutions or suits for breach of contract after a certain period of time, there are also Statutes of Limitations that eventually bar the owner of property from suing to recover possession from another who has wrongfully entered the property. The cause of action against a wrongful possessor is known as an ejectment. The Statute of Limitations varies by state. Running of Statute of Limitations not only bars an action from 1st owner but also vests a new title in adverse possessor.
Twoways Adverse Possession (AP) comes into being: 
a.       True Owner (TO) moves for ejectment
b.      Adverse Possessor (AP) may go to ct independently after statute expires.

iii.            Elements of Adverse Possession:  CHANCE Acronym given by Professor.
1.            C – Continues Possession
a.            Van Valkenburgh v Lutz – court found that D had failed to establish actual occupation for purposes of adverse possession) 15 years of “actual possession” is needed for adverse possession; actual possession can be shown by substantial inclosure of land, improvement to land, occupation outside of junk debris left on premises, and claim of title
b.            Howard v Kunto – Tacking is permitted.  Historically not permitted to prevent problems of brief tenancy and frequent trespass, not to prevent a family who spent many years there in good faith.
a.Tacking Rule: To allow tacking from one AP to another, there must be privity b/w them, but privity exists when there is transfer of land from 1 AP to another AP.
1.      Privity: Privity is satisfied if the subsequent possessor takes by descent, by devise, or by deed purporting to convey title. Tacking is not permitted where one adverse claimant ousts a preceding adverse claimant or where one adverse claimant abandons and a new AC then goes into possession.
c.            Intermittent Periods of Occupancy Not Sufficent – This rule applies however, constant use by the claimant is not required so long as the possession is of the type that the usual owner would make of the property. For example, the fact that the adverse possessor is using the land for the intermittent grazing of cattle will probably not defeated contiunity if the land is normally used in this manner. Summer homes also apply.

2.      H – Hostile – in order to be hostile, a possessor must seek to not have the owners permission.
a.       There are 3 views in analyzing the intent of the AP, when seeing if they where hostile.
a.      Objective Standard (Majority) – state of mind is irrelevant (firmly held in England)
b.      Good Faith Standard – I thought I owned it (voiced in U.S. decisions from time to time)
c.        Aggressive Trespasser Standard – I thought I didn’t own it, but I intended to make it mine (one way to deal with this is to make adverse possessor pay fair market value)
3.      A – Actual Entry – It has to be an actual entry onto the land ( can't be hypothetical, or a threat)
4.      N – Notorious  – (Open and notorious; land is used as if the actual owner); is landuse similar in kind to surrounding land use?
a.       True owner must have had knowledge or should have had knowledge of the actual encroachment, so that she could defend her rights.
a.       Mannillo v Gorski –  The defendant encroached 15 inches onto the plaintiff’s land. Whether plaintiff should have noticed the encroachment is a question for the jury.
5.      C – Claim of Title/Right – If a deed is mistaken, hostility can be presumed or shorten the statutory period. There are other instances where the court actually requires the adverse possessor to believe they own the property.
a.       If a deed says they own the entire property, but they only have settled on the portion than they own the entire lot if they meet the other common law elements.
a.       Color of Title: if you are conveyed a defective deed and you hold the property believing the deed to be valid for the statutory period (which is often less than that for claim of title) then you have perfect title to the whole property conveyed by the deed, regardless of the part you are using.
1.      In some states, color of title is required to get adverse possession.
2.      Under color of title, the statute of limitations may be different.