Select Page

Property I
St. Johns University School of Law
DiLorenzo, Vincent M.

Property, Professor DiLorenzo, Fall 2013


Personal Property

• Legal bases for property rights in the US:

– Possession

– Adverse Possession

– Gifts

– Purchase

– Labor

– Marriage

• Need to know majority and NY rules.

• IRAC Approach to problems

Real Property

• Concurrent Interest

• Real estate, estates, and land

• Landlord-tenant law

• Conveyances of real property

• Liens & Financing

Discussion Problems

• Exam-style essays

• Four times during the semester

Rights of Property

• General exclusive & perpetual rights

– Possession

– Usage

– Fruits & Profits

– Alienation

– Destruction

• These rights are divisible (somewhat)

Causes of Action in English Common Law

• Trespass on the case

– Plaintiff has any legal right

– Defendant negligently interferes with this right

– Plaintiff suffers an injury

• Trespass

– Plaintiff has a right of possession

– Defendant intentionally interfered with that right

• (Intent to act as owner, not necessary malice)

– Remedy: Damages, the value of being deprived of rights is recoverable

• Replevin (now: “action to recover possession”)

– Same requirements as Trespass

– Remedy: Return of the article

– Can be brought WITH trespass

• Trover (now: “action in conversion”)

– Plaintiff has a property interest (i.e possession)

– Defendant intentionally interfered

– Interference was unauthorized

– Interference was significant

– Remedy: Fair Market Value

Property Rights in Wild Animals

Wild Animals Feare Nature

• Generally shared public expectation that:

– This type of animal generally does not have an owner.

– Every member of the class is treated as a wild animal.

– Specific type of animal, not all birds are wild, but pigeons are.

• Animal that general does have an owner is a domesticated animal

Means of Acquiring Property Rights

Intention & Possession:

• Possession

– To deprive the Animal of it’s natural liberty, bring it within certain control

– Objective evidence as to the identity of the fox

– Objective evidence of the likelihood of ability to come to control it

– Policy:

• For the sake of certainty

• Minimize Quarrels and litigation

• Intention of appropriating the animal to individual use

– Policy:

• Generally do not impose property rights involuntarily

Ratione Soli:

• Intention and Possession on the part of a trespasser

• Property rights are still deprived, and awarded to the land owner on the land where they trespass.

Means of Loss of rights:

• In general, leaving personal property does not forfeit property rights

• Property rights in wild animals are defeasable.

• For animals however, rights are lost once they have escaped and be returned their natural liberty

– Majority Rule:

• Free from artificial restraint

• Returned to it’s natural habitat.

– Provides notice that animal not in natural habitat probably has an owner, since it doesn’t belong.

– Minority Rule (Mullet v. Bradley):

• Rule is generally more broad.

• Free from artificial restraint

– Animum Revertendum

• The habit of returning

• If an animal has the habit of returning then property rights are retained regardless of above

– The animal has the habit of returning is shown by it’s usual habit of returning



• Fishermen, A & B; A throws out a net, lets it sink, begins to close the net; B drops weights to drop A’s net to the bottom, then throws out their own net.

– Action in conversion

– A had the requisite intention, but needs possession

– Provide the court with objective evidence that they were the exact mackerel likely to be capture

Pierson v. Post

• Pierson was hunting a fox using his dogs and hounds, Post saw this, and still shot, killed, and took away the fox.

• Common Law

– British Common law binding in the US, except those based on statutes

– Little from the Common Law does not apply

• Possession

– Did not apply when simply chasing the animal, did not have certain control

McKee v. Gratz

• McKee dug up mussels from a stream on Gratz’s land, turned them into buttons.

• Waterways that are navigable are owned by the general public, not by the landowner

• McKee dug into the land under the water, so he is arguably trespassing.

• Title to the muscles as part of the state spoke only in aid of the state’s power of regulation

• Ratione Soli, did the owner of the land own the mussels?

• Customs of the la

scaping through a 5 foot enclosure.

– Free from artificial restraint?

• Yes, escaped

• Attempted to catch the animal, reasonable chance to catch the animal?

– Returned to natural habitat?

• Are silver foxes natural to Mississippi?

• Probably not, it’s not natural to that area.

– P still had rights.

Adverse Possession


• Gives a title to possessor after statute of limitations has expired and owner can no longer take action against them.

• Once the statute of limitations expires, possessor becomes the owner automatically without the need for action.

– Though an action to quiet title would declare and confirm the owner after proving adverse possession.

• Statute of Limitations expiration

– Real Property Recovery

• NY CPLR §212: 10 years (used to be 20)

– Personal Property (chattel)

• NY CPLR §214: 3 years

Requirements for Adverse Possession

These must be shown “clear and convincing” proof by adverse possessor

Actual Possession

• Title only granted to land actually possessed

• There must be an entry upon the land

• Color of title exception

– Actual possession under color of title of part of the land covered by the defective writing is constructive possession of all that the writing describes.

– This constructive possession has some policy-oriented limitations.

• For example, If the owner of the land being constructively possessed under color of title had no cause of action and no notice, then title to that land will not be granted.

• Majority Rule, new NY (2008):

– Use of the property in the manner an average and true owner would use it, such that others would regard the occupant as exercising title (exclusive dominion).

• Older NY Rule (applies to older cases, prospective statute):

– Protected by a substantial enclosure, or

– Usually cultivated or improved