Property 1
Lindsay
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
