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Property II
South Texas College of Law Houston
Ortiz, Francesca

Property I
Ortiz – Spring 2001
I. Exam
A. Essay
1. Issue, state rule with elements; application to facts. Arguments are what is important not conclusion
B. Question on test about what these mean:
1. Vest – ascertained or met condition precedent
2. EI – vests like a Rm
3. Fail – not become ascertained or not met condition
4. Destroyed – Rm, destructibility of CRm, destroyed before it vests or fails (cant pick up gun at all analogy)
5. Void – RAP, void at moment of created – like never existed (never made gun)
C. Format:
·         1 hour 30 mc @ 4pts each scantron
·         1 hour for 1 multi part short answer FI question
·         1 hour essay
·         No penalty for incorrect answer – guess
·         If think two answers write in answer book
·         Short answer, the first time use a term write it out then abbreviate, fee simple absolute (fsa)
·         Write answers in blue book not on exam write out work like in class
·         Essay read whole essay first (bottom affects top)
·         Credit for clear concise state rule once but may have to apply multiple times
·         Outline answer first
·         Anything in course can be on exam
·         FI card is in the exam
·         If skipped in class not on exam but everything else is
·         Don’t talk to Ortiz about the exam after exam
·         Ortiz gone weekend before exam
·         Ortiz home 832-252-6560 til midnight if busy on computer so call office and leave message
·         Cell 713-213-1421
II. Acquisition of Property Without Purchase
1. Possession – domain and control over property; asserting ownership over something no one owns.
2. Priority of possession – first in time, first in right; gives legal possessor stronger right to someone who comes after
3. Johnson v. M’Intosh: (Indians) Discovery gives title to discoverer; taking possession of un-owned things is the way to acquire ownership of them
4. Rules for Initial Land Acquisition
a) Btw Different Discoverers
(i) Rule of discovery = first in time
(a) NA were just occupants, did not have title
(b) NA as occupants were moved at governments choice
b) Btw Discoverers and Natives
(i) Decide amongst themselves how to deal with land title
(ii) Options:
(a) Purchase – recognizes ownership by Natives
(b) Conquest – might is right
(1) what’s wrong with first in time?
(2) Wont work in every situation (next)
Pierson v. Post (fox): In order to have occupancy/ownership of a wild animal, it is necessary to have actual possession; first person to take actual physical possession has title. [Manucaption – actual physical possession] 1. Rule of Capture – to gain title, must kill, capture, mortally wound, or trap so that is within your certain control (majority) [ferae naturae – wild animals] a) Advantages
(i) easy to administer
(ii) if hunting, make sure technology good enough to get job done
(iii) won’t sue if don’t bag
b) disadvantages
(i) someone else can expend a large amount of labor, time, & money & still lose animal
c) Constructive possession – possession not actual, but assumed to exist; The law will treat a person as if he has possession even if that person is unaware of the fact that he has possession. (mortally wounded so capture is virtually certain)
d) Ratione soli (by reason of the soil) – ownership by virtue of owning the land; soil and everything in real property on it belongs to the owner of the property; includes animals, minerals, oil, fixtures on property. (first in time — occupancy) [ray-shee-oh-nee soh-lI] 2. Rule of Sportsmen (in hot pursuit – dissent in Pierson(minority)):
a) no touch required
b) prey must be within reach or pursuer must reasonable prospect of taking
c) intent to convert to own use is required
3. Both Rule of Capture and Rule of Sportsmen follow first in time (first pursue/first capture) so first in time not mean anything unless define what first in time means.
4. Other Rules and Principles
a) Locke Labor Theory – adding labor creates ownership (how much labor is required – that is the question). Mix labor with something from nature and it is yours…
b) Custom of industry can alter rule of capture:
(i) Ghen v. Rich: (whale)
(a) Where actual manucaption is not possible, pursuit, under trade usage/local customs, can constitute

operty leads to failure of owners to take care of property
(i) Ex: time share, break furniture, don’t worry bc know will share cost…and so on….
(ii) LE, owner can sue for waste
(iii) JT and TC cant agree then can partition or sever which creates private prop
(iv) L and T law: illegal lease, quiet enjoyment, habitability – all make internalize externalities b/c of community relationships (T cant waste)
3. Fugitive Resources
a) Initially rule of capture used (like ferae naturae)
b) Modern trend is to move away from rule of capture with fugitive resources
1. essence of private property is the right to exclude others, the right to exclusive possession over whatever things the law of property assigns to a person.
2. Possession of property is conditioned only by the restrictions that society legitimately puts upon private property rights (Fair Housing Act, FELA infra)
a) State v. Shack: (migrant farm workers) The ownership of real property does not include the right to bar access to government services available to migrant workers; a person’s property rights do not give him the power to control the destiny of the people who he allows on his land.
b) State action – right is asserted only against government
3. Right to exclude – right of property; limitations are based on reliance interests of property the court willing protected the chattel but not the idea.
a) At common law only the chattel is protected, if want to protect idea need to go through statute or patent, copyright etc.
4. No absolute right of property; Rights in property are not unlimited
a) Rights cant go against public policy
b) Property protected up to a certain point
1. Property that can be found