Glancy Property Spring 2011
1) Rule of Capture:
i) General Rule: a person who first captures otherwise unowned resources is entitled to the resources; whoever is prior in time wins.
(a) Wild animals: usually they belong to the captor. (Pierson v Post)
1. Wounded or trapped animals: capture is virtually certain, the animal is treated as captured
2. Custom: if more effective may dictate a different result. Ie whales (Ghen v Rich)
(b) Gas and Oil: analogous to wild animals
1. Negligent driller: responsible for any damages that may ensue
2. Limitations: to conserve resources, statutes regulating the number of acres required for a well and apportionment of the drilling profits among the surface owners
(c) Water: the rule of capture; but Much depends on the source of water.
1. Percolating ground water: ground water deemed to be a part of the soil; can be sold to another; eastern states where underground water is plentiful. Unless negligence or malicious intent, an owner can cause a neighbors well to dry
2. Reasonable use doctrine: pump water for use on his own land for reasonable uses in unlimited quantities-
a. Exception: cannot however divert water from well to noncontiguous land if another owner harmed.
2) Acquisition by Creation
i) General rule: a person can acquire property by creating it,
(a) Intellectual property: IP is the “catchall” label for property in ideas; includes copyrights, patents, and trademarks, but may also cover property in a persona.
1. Common law: allows the copying and imitation of ideas, as opposed to their expression (Cheney Brothers v Doris Silk Corp).
a. Exceptions: right of publicity (Vanna White v Samsung Electronics)
2. Statutes: copyright, trademark, and patent laws enacted by Congress to solve the dilemma of how much protection to give creativity.
a. IP rights are limited in time.
b. A person cannot copyright an idea, but can copyright to expression of it.
3. Unfair competition: news agency has a quasi-property interest in news it has gathered; can prohibit competitors from disseminating the news until its commercial value has news has passed away (International News Service v Associated Press)
4. Rights in body products: in (Moore v Regents of the University of CA) the court held that a man did not have a property right in his spleen
a. The drs who created the cell line thus acquired original ownership.
b. the patient had only the right to sue the doctors for failure to disclose their research and economic interest in the patient’s cells.
c. Although most property is freely transferable, some property is not alienable and some property can be given away but not told (ie items from endangered species such as ivory or eagle feathers)
3) Acquisition by Find:
i) General Rule: An owner of property does not lose title by losing the property; a finder has rights superior to everyone but the true owner; note exceptions
ii) Example Chimney Sweep finds a jewel and takes it to a jeweler to have it appraised. J refuses to return CS, the prior possessor has to superior right (Armory v Delamirie)
(a) Prior possessor wins over a subsequent possession
(b) Relativity of title: title is relative to who the claimants are.
(c) What constitutes possession: finder acquire physical control over the object and intent to assume dominion over it
(d) Constructive possession: owner or occupant of premises may constructively possess something on the premises of which he is unaware. (prior in time)
(e) Finders v Owners of premises:
1. Finder is trespasser: then owner of the premises prevails over the finder
2. Finder is an employee: employee has a contractual duty to report the object to the employer but if guest never claims it, why should duty to report preclude the finder from getting it?
3. Finder is on premises for limited purpose owner is entitled to objects found.
4. Object found under soil: awarded to the owner of the premises not the finder. Obj part of land itself
i. Exception: treasure trove: gold, silver or money intentionally buried or concealed with the intent of returning to claim it-
ii. Exception to exception: this does not include treasure buried with the dead
5. Objects found in private home or other private place: usually awarded to the owner
i. Exception: Owner not in possession (Hannah v Peel)
6. Objects found in public place:
i. Lost property: owner accidentally and casually lost: goes to the finder not the owner
ii. Mislaid property: intentionally placed somewhere then forgotten (ie purse on table): this property goes to the owner of the premises
7. Abandoned property: intentionally abandoned by the true owner, who no longer claims any right to it is awarded to the finder.
i. Multiple finders: may apply the rule of equitable division (order the prop sold and divide the proceeds)
4) Acquisition by Adverse Possession:
i) Elements of:
(a) Actual entry: exclusive possession of the property; exclude the world, except by permission of the possessor
(b) Open and notorious: readily detectible to a true owner
(c) Hostile or under claim of right: three views
(i) Good faith: AP must actually believe, in good faith, that he is entitled to possession
(ii) Objective: AP acts and statements germane to his occupation objectively appear to be claims of ownership
(iii) Aggressive trespass: AP must know that his occupation is wrong but still intended to claim the property
(d) Continuous: as continuous as a true owners occupation would be, without voluntary abandonment
(i) AP may tack his possession onto that of a prior AP so long as the two AP are in privity (they have voluntarily transferred possession from one to the other);
ii) Possessors rights before acquiring title: the AP has all the rights of a possessor: BUT no interest in the property valid against the true owner. The true owner may retake possession at any time
iii) Color of title: refers to claim founded on a written instrument that isis defective and invalid
(a) Color of title not require in most states- in a minority of states it is required for AP;
iv) Boundary disputes:
(a) Objective test-majority view: the possessors mistake is not determinative; acquires title by AP when the statutory period expires.
(b) The Maine Doctrine: a minority of jurisdictions possessor mistaken as to the boundary then no intention to claim title and adversity is missing
(c) The New jersey view: encroachment of an adjoining owner is small area a not clearly and self evidently apparent to the naked eye the encroachment is not open and notorious. SOL will run only if owner has actual knowledge
(d) Agreement on boundaries: no oral agreements because Statute of Frauds:
1. Doctrine of Agreed boundaries: if uncertainty between neighbors, an oral agreement to settle uncertainty is enforceable
2. Doctrine of acquiescence: long acquiescence-but shorter period of time than SOL-is evidence of agreement between the parties fixing the boundary line.
3. Estoppel: neighbor makes positive representations or conducts himself to indicate, location of common boundary, other neighbor substantially changes position in reliance on conduct. estopped to deny the validity of his statements or acts. Or sometimes when remains silent
(e) Mistaken improver: encroachment has not exited for the SOL so no AP claim. common law right to force removal of encroachment
1. Modern law: good faith improver of a neighbors lot gets some relief (if stat) in equity may let encroachment remain if damages paid, or a award the building to neighbor if pays its value just sell land at FMV
2. Intentional encroachment: in must remove the encroachment if the neighbor demands.
v) Tacking: parties must be in privity
vi) Disabilities of owners: must be in existence at the time the AP first enters; and if disabilities exist, the owner or her successor in interest has 21 years or 10 years after the removal of the disability (whichever period is longer) to bring an action.
5) Extent of land acquired by AP:
i) Without color of title: claim extends only to such part of the land as she actually occupied
ii) With color of title: in AP of the entire property described in the instrument provided the land described in the deed is recognized in the community as one defined parcel of land.
6) Interests that are not affected by AP:
i) Future interests;
ii) liens, easements, equitable servitudes: AP remains subject to such interests.
iii) Government land: a governmental entity is exempt from operation of statutes
s: created by happening of some event owner loses, or may lose, the property.
1. Fee simple determinable: automatically end when some specified event happens. (words commonly used “so long as” “until” “while” or language providing on the happening of a stated event the land is to revert to the grantor)
i. Motive or purpose: do not create a determinable fee;
ii. Transferability: may be transferred or inherited so long as event has not happened
iii. Correlative future interest: grantor has a future interest called a possibility of reverter
2. Fee simple subject to condition subsequent: does not automatically terminate but may be cut short when a stated condition happens. (words of condition include “but if” “upon condition” “provided however”) does not automatically end on the happening of the condition. continues until grantor exercises power of reentry
i. Transferability: may be transferred or inherited until the grantor is entitled to and does exercise the right of reentry.
ii. Correlative future interests: grantor retains a right of entry.
iii. Construction of ambiguous language (determinable or subject to condition subsequent): fee on condition subsequent is preferred
iv. Automatic v optional termination: SOL starts when grantor elects to declare a forfeiture; some modern cases hold that SOL begins to run from the time the condition is broken.
v. Restraints on marriage: sometimes violations of PP ie if the purpose of the restraint is to penalize marriage; if the prupsoe is to give support until marriage, when the new spouse’s obligation of support arises, the restraint is valid.
3. Fee simple subject to an executory limitation: on the happening of a stated event, is automatically divested in favor of a third person (not the grantor).
ii) Fee tail: has the potential of enduring forever, but will cease if and when the first fee tail tenant has no lineal descendants
(1) created by O granting the property “to A and the heirs of his body.”;
(2) Fee tail has two principle characteristics: (i) it lasts as long as the grantee or any of his descendants survives and (ii) it is inheritable only by the grantee’s descendants.
(a) Two important Characteristics:
1. During tenant’s life: can do nothing to defeat the rights of the tenant’s lineal descendants. On the death of the tenant in fee tail, the land automatically goes to his lineal descendants.
2. On tenant’s death: if the blood descendants of the original grantee run out, property is returned to the original grantor (or his heirs), or to any holder of the remainder named in the grant creating the fee tail. The fee tail cannot be devised by will.
(b) Future interests following fee tail: father could direct that the land go to another upon the fee tail’s expiration. following future interests are possible to become possessory upon the expiration of the fee tail.
1. Reversion: O conveys fee tail; O has a reversion to become possessory upon expiration
2. Remainder: O conveys “to A and the heirs of his body, and if A dies without issue, to B and her heirs” A has a fee tail; B has a vested remainder to become possessory on the expiration
(c) Disentailing: judges invented a fictitious lawsuit, known as a common recovery, tenant in fee tail in possession goes to court paying court and lawyer fees-walk out with a fee simple absolute.
1. Disentailing by deed: in the nineteenth century disentailing permitted by a deed from the fee tail tenant to another.
