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Property I
Southern Illinois University School of Law
Lindsey, R. Hokulei

PROPERTY I Outline – FALL 2012
General Information:
*Four ways to acquire land (real property)
1) Conveyance: owner conveys title by deed, either by sale or gift
2) Devise: Owner dies w/ a will; owner dies and names others in a will
3) Inheritance: Owner dies w/o a will (intestate); land passes by heirs (see ownership)
4) Adverse Possession: Owner neglects land; someone else takes it over and becomes owner
-Transferable: sell alienate
-Devisable: leave in a will
– Inheritable: if owner dies intestate goes to the heirs
-Possession: controlling or holding of personal property, with or w/o claim of ownership. 2 elements: (1) intent to possess on part of possessor; (2) actual controlling or holding of property
I. First-In Time and Discovery/Capture
1. Pierson v. Post: Post was foxhunting with his dogs on the beach. He stirred a fox and had him in sight pursuing him. Pierson saw the fox and killed it taking it with him. 
            a. Rule: Pursuit alone is not enough to establish occupancy; animal must be captured.
                        b. Rule: Capture Rule – bring under certain control to possess
2. Johnson v. M’Intosh: -Johnson gets deed from Indians; M’Intosh claims title to same land from government. Can the title to land made in 1773 and 1775 by chiefs of certain Indian tribes be recognized in the Courts of the United States? No.
a. Rule: Indian inhabitants were considered occupants (right to live there), deemed incapable of transferring the absolute title to others.
b. Doctrine of Discovery: Discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty.
3. Edwards v. Sims: Edwards’ property contained the opening to the Great Onyx Cave; Edwards did not want the cave surveyed because he wanted to have ownership of the cave (survey might show that the cave was at least partially on Lee’s property)
            a. Rule: Whoever owns the surface, also owns what is below the surface.
b. Rule: In order to establish certain property rights it is lawful to search the parties property in order to decide who has ownership.
c. Dissent: The rule should be he who owns the surface is the owner of everything that may be taken from the earth and used for his profit or happiness. P owns cave through right of discovery, exploration, development, advertising, exhibition, and conquest.
II. Transferring Property by Gift
A. Inter Vivos Gifts and Their Requirements
1. Inter Vivos: “gift between the living”; e.g. birthday, wedding, etc. takes effect immediately upon the delivery of the object and is usually irrevocable by the donor
2. Elements: (three requirements)
                        (a) donative intent (immediate intent to transfer, not promise for future intent)
(b) delivery: donor must hand over object to donee manually if possible, question of law for the court to decide;
-Delivery (modern trend) – if there is overwhelming proof of donative intent, courts will be more likely to accept constructive/symbolic delivery as sufficient
-Exceptions to manual delivery: constructive (keys to a car, combination to safe) usually a gift too big to transfer manually; symbolic: writing that declares gift such as title or deed
(c) acceptance of the gift
3. In Re Estate of Evans: Vivian lived w/ Evans & cared for him; Evans went to safety deposit box, gave Vivian keys told her and others the items were hers; Evans died; court ruled that there was no delivery – Evans could have opened a box in her name or left a will
a. Rule: Intent does not supply delivery, the deceased must execute the intent; a person must have complete control and access to for delivery.
b. Rule: Constructive/symbolic delivery is only sufficient when manual delivery is impossible
c. Dissent: There was no doubt the donor intended the gift; he told many people he was giving her the box contents and she had the keys.
B. Gifts Causa Mortis and Testamentary
1. Testamentary Gift Definition: one the donor intends to take effect only at the time of the donor’s death; had to make gift by will
            a. Written will must be:
1. Executed in the presence of a certain number of disinterested witnesses
2. Witnessed by notary public
3. Acknowledged by notary public
b. Will has no legal effect as long as testator is alive; takes effect (and thus can transfer property rights only at the death of the testator
c. As long as testator is alive, she/he can change mind or give inter vivos gifts of things in the will
2. Causa Mortis Gift: gift in the case of death, needs same elements as inter vivos, plus actual death from perceived peril.
                                    a. Must be made in context of donor’s expected immediate death
b. Ownership is passed to donee as soon as delivery and acceptance even if donor still alive
            1. Donee’s ownership conditional under following conditions:
                        a. donor might change mind and revoke gift
                        b. donor might not actually die
3. Scherer v. Hyland: Scherer lived w/Wagner; Wagner depressed, suicidal, receives settlement check; signs check, write note leaving it to Scherer, leaves apt. locking door and jumps off apt. roof; courts ruled gift causa mortis – she anticipated her death and left a gift where only Scherer could find
a. Rule: A gift causa mortis can be validated if intent is evidenced by a constructive/symbolic delivery and if acceptance benefits the donee
III. “First-In-Time” and Finding
1. Armory v. Delamirie: P found a jewel and took it to D’s shop (who was goldsmith) to know what it was; D offered boy money, who refused to take it and insisted to have the jewel again. Apprentice gave him back the socket w/o the stones
a. GENERAL Rule: One who finds an object that is not in someone’s possession at the time, does not have absolute property, but can keep the object from all except the owner. Exceptions: Finder’s rights may depend on how the “rightful” owner parted w/ the property (what type of property is it?), where the object was found (public/private) and the status of the finder
b. Rule: A finder has possessory claim superior to everyone except the true owner, unless there is another finder with a prior possessory claim.
c. Just tertii defense: allows second possessor to assert rights of the true owner as a defense to an action by first fraudulent possessor.
A. Finder’s Law
            a. 4 Types of Found Property
1. Abandoned – property is abandoned when the owner no longer wants to possess it
a.  Shown by proof that the owner intends to abandon the property and has voluntarily relinquished all right, title, & interest in property
b.  Belongs to the finder of the property against all others, including the former owner
2. Lost – property is lost when the owner unintentionally and involuntarily parts with its possession & does not know where it is
a.  Stolen property found by someone who did not participate in theft is lost property
b.  Belongs to finder against all except true owner once the statutory procedures are followed
3. Mislaid – Mislaid property is voluntarily put in a certain place b

ues are not known, but are greatly feared – the effect on human dignity of a marketplace in human body parts, the impact on research and development of competitive bidding for such materials, and the exposure of researchers to potentially limitless and uncharted tort liability; “the most important thing we do, is not doing”
Dissent: patients should be allowed to decide the future of their body tissues, organs, etc.; liability under conversion to researchers will be low since most of the cells that are used for research are used by consent of patients who want to use their organs for scientific research; patients should have a right to sell/make a profit on body parts
            B. The Right to Exclude
                        1. The most important stick in bundle of sticks – right to exclude
                                    a. Property Rule: 2 parties they decide what has to be paid to use the land
                                    b. Liability Rule: courts decide what should be paid
                                    c. Policy: rule for people, don’t let courts get into people’s business
2. Jacque v. Steenberg Homes, Inc.: C granted damages to Jacque as D trespassed over his property to deliver a mobile home; to prevent land owners from taking matters into their own hands, series of trespasses could lead to adverse possession. Protect property owners.
3. State v. Shack: Atty. and field worker for nonprofit orgs. (Ds) entered upon P’s farmland/private property to offer government aid to migrant workers living there; P demanded they talk to the workers in his office w/him present; Ds declined saying they had the right to meet w/the workers in their living quarters alone
a. Rule: Ownership of real property does not include the right to deny access to government services offering help to migrant workers.
V. Adverse Possession
-Process through which a person who uses property for a statutorily determined period of time becomes the owner of the property and defeats all rights of true and rightful owner
-cause of action exists when adverse possessor meets all elements of POACHER
            A. Basic Elements – POACHER
1.Open and Notorious: ap’s use of property is so visible and apparent that it gives notice to true owner that someone’s trying to take possession
c. Minor encroachment Rule: the occupation or possession of the land claimed in AD must be of that nature that the real owner is presumed to have known that there was a possession adverse to his title…However, when the encroachment of an adjoining owner is of a small area and the fact of an intrusion is not clearly and self-evidently apparent to the naked eye but requires an on-site survey for certain disclosure…IF LAND CAN ONLY BE SEEN THROUGH SURVEY