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

Property 1
Fall 2010
I.                   Possession, First-in-Time, and Acquiring Property Interest
a.      Discovery/Capture
–          Pierson v. Post: D was hunting a fox, P comes in, kills it at the last minute, and takes possession
o   RULE: animals must be captured to be owned, mere pursuit is not enough
o   RULE: “certain control” gives rise to possession – gives notice and rewards useful labor
–          Johnson v. M’Intosh: P purchases land from Indian tribe, D gets title to same land from government, who retains possession?
o   RULE: Discovery Rule – first occupants have title and can convey
o   RULE: must communicate ownership i.e. fences, etc.
–          Edwards v. Sims: P gives tours through the cave located under his home and property. Part of cave lies under D’s property. D wants proceeds from tours.
o   RULE: you own everything to the core, D could have closed his part or opened his own tours
o   RULE: public policy – if you put in the labor, you can take the land – adverse possession… later
b.      “First in Time” Rule/Finders
–          Armory v. Delamirie: chimney sweep boy finds jewel in socket in chimney. Takes it to get appraised by goldsmith, who offers too low of a price then takes jewel. Boy wants actions for trover
o   Action for trover: conversion of value of object
o   Action for replevin: actual object itself
o   RULE: 1st in time – 1st in right
o   RULE: finder has possessory claim superior to everyone except someone with better title who can demonstrate they are prior possessor
–          Benjamin v. Lindner Aviation: P finds package of money stashed in a bank’s plane during routine inspection; no one claims it within a year – goes back to bank
o   RULE: true owner has absolute title
–          4 Types of Property
o   Abandoned: owner intentionally and voluntary relinquishes all rights, title, and interest
§  Finder’s rights: finder acquires title against whole world, including true owner
o   Lost: owner unintentionally and involuntarily parts with it and does not know where it is
§  Finder’s rights: finder has rights over anyone but true owner. TO retains title
o   Mislaid: owner voluntarily puts it someplace, intending to reclaim ownership, but fails to reclaim or forgets where it is
§  Finder’s rights: possession given to owner of premises where it was found against everyone but TO
o   Treasure Trove: coins or currency intentionally concealed by TO and hidden for so long that owner is probably dead or undiscoverable
§  Finder’s rights: becomes property of finder against anyone but TO
c.       Bailments
–          Possession of property that isn’t by a true owner
–          Holder: bailee, owner: bailor
–          Requirements
o   Keep property in good condition
o   Return to true owner upon request
–          Types
o   Voluntary: bailee voluntarily assents to hold object
o   Involuntary: finder of property – no agreement between parties or consent by TO
–          Obligation of care for property
o   For sole duty of bailee (i.e. dogsitting, housesitting)
§  Slight duty of care – bailee only liable if gross negligence committed
o   For sole benefit of bailee (i.e. borrowing something)
§  Great duty of care – bailee liable for even slight negligence
–          Right to Include/Exclude
o   “Bundle of Sticks”
§  Property rights are separate but inclusive like a bundle of sticks
§  There is ability to separate rights out and give to others (bailments)
§  One important stick is right to exclude
o   Jacque v. Steenberg Homes: Instead of taking the snowy road, D passes across P’s land to deliver a mobile home to P’s neighbors
§  RULE: even if trespass caused no harm, public policy dictates that Jacque’s right to exclude must be enforced, award punitive damages
§  RULE: Right to exclude – no one should be able to trespass without penalty or paying fair rental
o   State v. Shack: D, a government worker, went to migrant farm to check on workers. Owner would not let him on and he is arrested for trespassing
§  RULE: one should not use property to injure others (migrant workers), if they are, trespass by government is legitimate
§  RULE: Property cannot control destiny of other persons
§  This case is exception to right to exclude
II.                 Gifts
a.      Inter Vivos Gifts
–          Gifts made between the living
–          Most common gift
–          3 requirements
o   Donative Intent: intent to make immediately effective gift
o   Must have delivery
§  Manual: physical handout to done
§  Constructive: used when manual delivery is impossible – i.e. car (with keys), large/immovable objects
§  Symbolic: gift is intangible, delivery symbolizes gift – i.e. deed, stocks, bonds
o   Acceptance
–          In re Estate of Evans: Evans gives his niece keys to his safety deposit box. Not yet on deathbed. Was this sufficient delivery
o   RULE: If manual delivery is possible, it must be done
b.      Cau

l control we expect TO to assert
o   Required period of time: SOL
–          Mullis v. Winchester: P adversely possessed D’s land. Claimed it as his own because he paid taxes, harvested timber, and conducted survey on land.
o   RULE: POACHER – P fulfilled all the elements
o   RULE: Color of title – even if a small tract of land is possessed, the rest of the tract is given through constructive possession
–          Norman v. Allison: P asks former owners of a property whether he can put a fence up in their property. They agree, but new owners, D, refuse to let him.
o   RULE: missing hostile element – never wished to possess land, therefore not hostile
–          Stump v. Whibco: P attempts to tack on from last owner in order to adversely possess. Put up small fence
o   RULE: to maintain the “continuity” element, TO must never get involved
o   RULE: to be “open/notorious,” must be sufficient and visible, in this case fence was run down and temporary, simply a minor encroachment
IV.              Possessory Estates
a.      Freehold Estates
–          Freehold (fee simple and life estates) and Non-freehold (leases)
–          Conditions to consider
o   Who has present possessory interest
o   Which person holds it currently
o   Future interest
–          Words of Purchase: identify the grantee
o   i.e. “to A”
–          Words of Limitation: describe the estate being transferred and the duration
o   i.e. “… and his heirs”
–          Heirs
o   Common Law: only descendants, not spouses, were heirs
o   Modern: heirs automatically inherit intestate
–          The Fee Simple Absolute
o   Highest/best estate under common law
o   Duration – forever
o   No future interest because it lasts forever
o   If no will, then it goes to heirs automatically
o   “Bundle of sticks:” can transfer one or all of the sticks – alienable
§  Alienable (transferable)
§  Devisable (by will)
§  Inheritable (by intestacy)
o   Default estate in Modern Law