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


Prof DiLorenzo

Spring 2014

I. Property Rights Based on Possession

Bundle of Rights

– What are they?

o Right to possess

§ The rest of the world who is not the owner cannot exercise the right of possession. They cannot interfere with your ownership.

o Right to use

§ Nobody else can stop me from using my property.

o Right to fruits and profits

§ If the property in turn produces fruits and profits, the owner of the property also owns these.

o Right to alienate it

§ They have the right to transfer it to third parties

§ Can be while alive

§ Can be in death (part of your will for example)

o Right to destroy

o The bundle is exclusive.

§ Only the owner has these rights. Nobody else

o The rights are also perpetual

§ They exist forever

– Many property interests don’t have the whole bundle. They are characteristics of property and not determinative. It all depends on the public policy. We have to make this determination on an item to item basis

o Think about leases/Mo-Cell case/In re Marriage of Graham

Traditional Property Actions

– Trespass

o The only remedy available is damages

o Plaintiff must allege a right of possession. They must allege that the defendant intentionally interfered with the plaintiff’s right to possession. Must also allege that the interference was without authorization.

§ Three elements to a trespass

· 1. Right of possession

· 2. Intentional Interference

· 3. Without authorization

– Replevin/Ejectment

o You are seeking the return of the goods

o In personal property cases you are seeking replevin. If the subject matter of the action is real estate, we don’t call it replevin. We call it ejectment.

o Elements

§ 1. Right of possession

§ 2. Intentional Interference

§ 3. Without Authorization

o Remedy is wanting the property back. Damages could be included.

§ Could be lost profits

– Trover

o Remedy is the fair market value of the property. This is the amount recoverable by the plaintiff. The plaintiff has to prove:

§ 1. Right of possession

§ 2. Intentional Interference

§ 3. Without authorization

§ 4. Interference was significant

· Some courts call it a serious interference

· What is so serious that it allows the court to order trover?

· Plaintiff is asking for a forced sale.

· Destruction is not the only reason for order trover. Taking possession of the item for a long period of time will allow for trover.


– We have modernized Replevin and Trover. We don’t use these terms anymore

o Trespass is still trespass

o Replevin = Action to recover possession

o Trover = conversion

Natural Resources

Wild Animals

– Courts treated wild animals as a natural resource

– The State owns the wild animal until they are captured. This means that the State can regulate their capture

– Public policy determines whether we treat animals as a public resource or an individual resource

o US wished to encourage the capture of wild animals because they are necessary for food and clothing. The best way to encourage capture is by recognizing individual rights.

Pierson v. Post

– Post was pursing the fox. Then Pierson shot the fox, picked it up, and took it away

– Wild animals are a type of natural resource

– Was pursuit enough, or did you have to actually take the animal away?

o The GR is that you must have possession or occupancy.

– Pierson’s claim is that killing the fox and taking him away is the occupancy. Post is saying that the pursuit is a type of occupancy.

– Definition:

o 1. Intent

§ The intention to appropriate the animal to individual use

§ What is the policy interest behind intention?

· US law typically does not want to impose property obligations on individuals without their consent.

o Property rights always come with property obligations.

o You can be liable for your property. There must be intent in addition to occupancy

o 2. Possession or Occupancy

§ To acquire property rights you need occupancy

§ Occupancy means

· Killing, or

· Deprivation of Liberty

o Think fish in a net

§ The court says “to deprive animal of its natural liberty, bring it within your certain control.”

· Did Post satisfy this requirement?

o No, he did not have control over the animal

· Did Pierson satisfy these requirements?

o Yes

§ Occupancy means to deprive animal of liberty and to bring it within your control. Pursuit is not enough.

§ Moral wounding

· You shoot the fox, but never picked it up

o Have they deprived it of its natural liberty? Yes

o Have they brought it within control? No

§ A court might say that they want objective evidence that you were likely to get the animal.

§ The court might say that moral wounding will be considered control.

§ Mortal wounding is a kind of occupancy

· We are applying public policy as opposed to a generally accepted standard

o 3. Ratione Soli: “by reason of the ownership of the soil.”

§ Policy: discourage trespass

· You cannot gain property rights while trespassing

§ 1. Plaintiff is the owner of private land

§ 2. Defendant is trespassing into the land without the owners authorization

§ 3. The defendant satisfied the general rule

· He had the intention to appropriate the animal for individual use. He also had possession of the animal.

§ The ownership rights of the defendant becomes the property right of the plaintiff

McKee v. Gratz

– Mussels case

– Plaintiff was seeking the full fair market value of the mussels on the grounds of conversion.

– Plaintiff owns land and there is a stream running through his land. Defendant has a boat on this stream.

o Navigable waterways are all public property, which means that they are not trespassing. If they went fishing with the intention to appropriate the fish and they got actual possession, there would not be trespass.

– The problem here though is that the mussels were in the dirt at the bottom of the stream. The stream is not private property but they land under the stream is public property.

– It goes back to Ratione Soli

o Was the defendant a trespasser?

§ No. There was an implied authorization to enter. It was implied by virtue of local custom

§ They could have eliminated local custom by fencing in the land. This would make it clear that they don’t want trespassers

– The court decided it was a wild animal, but didn’t say why. How do we decide?

o Has nothing to do with the mobility of the animal.

o General US Law:

§ Generally accepted public expectation (applied on a species-wide basis).

· Is it the generally shared expectation that this type of animal does not have an owner, this animal is considered wild?

· Dog: generally accepted to be domestic (even if it is not – still not a wild animal)

· Pigeon: generally accepted to be wild (even if here it is a pet)

· Parrot: In NYC they are not wild so they are not wild

Losing property rights

Mullet v. Bradley

– Plaintiff got possession of the sea lion. He has to prove that he had the intention to appropriate it for individual use and that that he had possession in the sense that he was depriving it of its natural liberty. This is how you get ownership.

o Plaintiff tried to sell the sea lion. He couldn’t though so he just let it go into the long island sound. He gets caught by Bradley on the Jersey Shore

– Has the owner lost his rights?

o Generally speaking, when you part with possession you do not lose your rights to your computer (leaving computer in library). But it is different with wild animals.

o Rights with wild animals can be lost. When can they be lost?

§ They are no longer the property of the person. If at anytime they regain their natural liberty property instantly ceases.

– Has the sea lion regained its natural liberty?

o Bradley: free from artificial restraint

o Mullet: not only must you be free from artificial restraint, it must be returned to its natural habitat

– So it comes down to what natural liberty means?

o Court agrees with Bradley. MINORITY RULE

o Notice Requirement

§ The animal has regained its natural liberty so the lost property rights and now someone else has gained possession

· Look to public expectations. They have notice because the animal is generally wild

– Most states would not rule with Mullet v. Bradley

o 1. Free from artificial restraint

o 2. Animal must return to its natural habitat

§ This would mean that everyone should know that it is not in its natural habitat. This gives them prior notice. They should know that someone had a prior claim.

Animin Revertendi

– Animal has been trained to return.

– How would anyone in world know that this animal has been trained to return to its home?

– The policy of encouraging taming is in conflict with the general notice requirement.

– We rely on notice so often in wild animals, and now we are willing to toss it aside with animin revertendi (the animal has the habit of returning)

o You must prove that you have released it in the past and that it has always returned.

o You must also prove that it hasn’t been gone for so long that it has lost its habit of returning.


– Do we treat water like animal rights? We wish to encourage the capture of wild animal because it serves society’s interest. Do we similarly have the need to capture water? The court has said yes.

– Ownership of water (like animals) is a two part standard:

o 1. Possession (deprivation of liberty)

o 2. Intention

– Do you own it if it escapes?

o If the water escapes from your tank into the river, can you still claim it?

o If it returns to its natural habitat you lose ownership

– We recognize the ratione sole doctrine for water too (discourage trespass)

– Do we want to limit the amount of water we can capture?

o Pg. 38 – Same standard as capture of animals

Oil and Natural Gas

– There is a large basis in US law tha

· Dissent says that it was adverse because he knew that someone else owned it because of his action for the easement. Why else would you do this instead of claiming the property?4

– Here the dissent was clearly correct. They used the objective standard and the subjective state of mind is immaterial.

o It was adverse. It was non-permissive, which makes you a trespasser.

– Easement action: (this is the most complicated part of the case)

o He has been using the property and he first claims an easement (an interest in someone else’s land) and then turns around in the next case and says that he owns the whole piece of land.

o Supposedly he got the easement because of bad legal advice (therefore you cannot hold it against him)

Cultivation, Improvement, or Enclosure

– Ewing, just digging sand could be enough to meet this requirement.

– It all depends on the circumstances. Look to see what a reasonable person owning the land would have done with it.

Subjective State of Mind

– Should there be one?

– Possession can be adverse even though (a) you thought you were on your own land, or (b) you knew you weren’t in your own land.

Manillo v. Gorski

– Defendant had encroached 15 inches into the property. So they go into the discussion of whether this stuff should be removed.

– 2. Adverse

o Was the taking hostile?

§ Does this mean something more than non-permissive?

§ The claim is that the subject state of mind has to be hostile.

· The court does not accept this argument

§ Two possible states of mind:

· (a) You thought it was your land (not adverse)

· (b) You knew it was not your land (adverse)

o It seems more fair to give the encroacher the land under (a) because he was an honest person. Not the case in Maine

§ Maine argument

· The guy who knows he is encroaching wins

· The guy who doesn’t know if it is his land loses.

o They reject the Maine argument

§ They said that hostile intent was not necessary.

§ Any possession, even under a mistaken claim of title, is sufficient to support a valid claim of title

– This case is all about hostile intention vs. claim of right

o Claim of right (good faith, but mistaken belief that he is the owner)

§ More and more states embraced this and then it became either or in most states.


– Color of Title

o You have a written deed, but there is something wrong with it.

o Normally the actual possession concept determines the area to which you get title. If the true owner owns 10 acres and you are a neighbor and you start to enclose 2 of those acres you are only entitled to those two acres

§ The color of title in some cases will give you the whole 10 acres. If the title says you own the 10 acres, but you only occupy 2, you will get all 10 acres.

o The court will sometimes still limit your title to the areas in which you actually possess. In the color of title they are looking to an alternative form of evidence. It gives evidence of the area in which you are trying to claim.

– 3. Open and Notorious

o Means that the owner has actual knowledge that the adverse party is making a claim of title, or it would be apparent upon reasonable inspection

o This case is asking what “apparent upon reasonable inspection” means.

§ They used the Connecticut rule

§ When the encroachment is of a small area and is not readily apparent to a naked eye, the assumption of open and notorious is not justified. The dividing line is not apparent to either party. The only way to figure it out would be to get a survey, which the court does not want to force on people.

§ The court doesn’t force people to know their boundary lines. Open and notorious must be an encroachment visible to the naked eye

· This is minority rule

· The majority rule is that if the owner does not know their boundary lines, they should figure it out and then they will know of the encroachment. THIS IS THE NY RULE

· NY REQUIRES YOU TO ACERTAIN YOUR PROPERTY LINE. Once you inspect it, it would become apparent that there has been an encroachment