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

DiLorenzo – Property Law Spring 2018
Bundle of Rights
A bundle of rights
7 property interest:
(1) Possess: owner of property has right to possess
(2) Use: owner has right to use without interference
(3) Fruits and Profits: Owner owns all the profits
(4) Alienate: Owner has right to transfer
(5) Destroy: owner has right to destroy its property
All are (6) exclusive (only owner has these rights) and (7) Perpetual (never end)
Bundle of Rights can be divisible. You do NOT need to have the whole bundle.

(1) Trespass:
What you need to prove:
(1) π had right of possession (property interest)
(2) ∆ intentionally interfered with π’s right 
(3) ∆’s interference was without authorization
Remedy: Money Damages

(2) Replevin/Ejectment/action of recovery position:
Action to Recover Possession (Personal Property/Real Property)
What you need to prove:
(1) π had right of possession (property interest)
(2) ∆ intentionally interfered with π’s right
(3) ∆’s interference was without authorization
Remedy: Recovery of Possession, Damages (monetary value of deprivation of possession can lead to recovery of damages)
-Replevin is for personal property
-Ejectment is for real estate

(3) Trover (Conversion):
cause of action filed when property is completely destroyed
What you need to prove:
(1) π had right of possession (property interest)
(2) ∆ intentionally interfered with π’s right
(3) ∆’s interference was without authorization
(4) Interference was significant (property was destroyed/damaged/sold)
Remedy: Fair Market Value of property—what the property would be worth if you had bought it on the open market, π ask for force sell of property

—General public policy: we want to encourage the taming/capture of wild animals (Dissenting in the fox case)
Generally do not try to determine whether the specific animal in question is wild, but rather whether animals of that same species are considered wild à Species wide determination (aiming for general application) i.e. if most of dogs have owners, then the whole specie is not wild animal.
Depends on the generally shared expectations of the general public (whether the public would expect the animal to have an owner when found in a specific location / with specific markings: if NO, then this type of animal is wild)
if an animal is NOT wild, it falls under lost property and the original owner has rights over subsequent possessors.

***State owns wild animals in that it preserves them for the public enjoyment, but the state cannot be held liable for harm caused by wild animals*** the ownership state has is for the purpose of regulation.

B. Intention and possession
to establish rights in wild animal, you need to show: 2-part standard (Pierson v. Post)
(1) Intention: intention to exert property rights over the animal in question (appropriate animal for individual use) ; action prove your intention to capture
Policy: don’t want to impose property obligations on individuals without their consent.
(2) Possession: actual possession or to deprive the animal or natural liberty and bring it within certain control
actual possession is not necessary when the animal is deprived of its natural liberty
Policy: provide a notice to the rest of the world by claimant (p.20 of the textbook)
(a) Minimize Quarrels & Litigation: Prevent fertile source of quarrels and litigation, possession must provide objective of (EX: caging an animal, killing an animal gives notice to next huntsman) confirming your attention to capture
(b) Sake of Certainty: objective evidence of the identity of animal and likelihood you can bring it within your control
(c) Peace of Order

need control, but ultimate control need not be absolutely certain
Pierson v. Post: Pursuit of NOT possession—the person must actually bring the animal within certain control
Mortally wounding or trapping so that capture is virtually certain
Escape improbably (fish net, cage)
Industry custom (i.e. iron holds because whales are big): local customs that would regularly allow trespass.

Ratione Soli Doctrine –alternative as a basis of individual rights (applies only to wild animals) (McKEE et al v. Gratz) à both applied to wild animal
Exclusive common law right of a landowner to take game on his land à property rights to an animal by virtue of ownership of the soil
Policy: Discourage Trespass
Person who acquires the requisite property rights in wild animals (possession + intention) by trespassing on another’s land must defer rights to landowner. Trespasser’s right to a wild animal captured on another’s land are defeasible
If trespasser proves that local customs regularly allow trespass, then he may retain his rights
Landowner does NOT own the animals on his land. However, the owner does have exclusive control of his land and the right to exclude others from hunting on it.

Qualified Property Interest: They are no longer the property of a man if at any time the animal regains their natural liberty by: 2-part test: (Mullet v. Bradley)
(1) Free from artificial restraint without any intention to return (only this condition is the minority rule and it is the Mullet decision) AND
(2) Return back to its natural habitat
à THEN you can claim that the original captor has lost his rights when animal regain natural liberty
Stephens v. Albers—Domesticated fox is killed.
Rule: if the animal is not native to the area, a hunter may be put on notice that the animal has escaped and someone else has prior possession

EXCEPTION = Animum Revertendi: animal has been trained so it has habit of returning
Animals that have developed Animum Revertendi continue to belong to the original captor when they roam at large 
Must prove:
Past practice that you have released that animal and it has returned back to you
Prove that the animal has not been gone so long that it forgot to return, that it no longer has the habit of returning
When policy of taming is conflicting with policy of notice: the court rules in favor of encouraging taming throwing aside notice requirement

McKee v. Gratz: mussels case. No one is the owner of navigable water (since it was flowing stream, such is navigable waterways). Court HELD: authorization to enter is implied due to the virtue of local customs—therefore action in conversion is dismissed. The Common understanding with regards to large expanses of unenclosed and uncultivated land in many parts of the country


General Public Policy: encourage the capture of natural sources (drilling oil is costly)
A. Oil and Natural Gases (& Water)
MINORITY RULE: Some States (Louisiana) follow the CAPTURE RULE: where no one is the owner until they capture “fugitive” resources. No one is the owner until they take possession. For similar rule on oil, see Hammonds (p.38)
Analogous to capture of wild animals (possession and intention requirement)
Ratione Soli Doctrine would apply
Escape: returning to natural wild and free state.
Capture Rule limited by Reasonable Use Doctrine (rule of capture + wastefu

statute of limitations.

Public Policy: to provide the true owner with the means to protect title ; benefit the society at large + encourage improvement of land.

The law of adverse possession is with judicial rules supplementing the statutes of limitation that make up the core of adverse possession.
possession has to be…
Legal standard: use of the property in the manner that an average true owner would use it under the circumstances, such that neighbors and other observers would regard the occupant as a person exercising exclusive dominion (for example, In Van Valkenburg, if the
Van Valkenburg v. Lutz: in order to acquire title by AP, possession must be actual, under claim of title, and the land must either be enclosed or sufficiently improved.
NY HAS 3 REQUIREMENTS: possession must be in form of (July 2008) 12min(the time)
(1) Usual Cultivation (cultivation standard DOES NOT apply to personal property) OR
(2) Usual improvement OR
(3) Protected by substantial enclosure: acts sufficiently open to put a reasonably diligent owner on notice (NY Real and Proceeding § 512)
Color of Title EXCEPTION: claim found on a written instrument that is defective/invalid (i.e. deed, will)
Gives you title to the whole land/entire land described in the deed only in a situation where you have received an invalid deed
Possession of the premise or part of it à receive title to all of the premises covered in the writing
Puts the adverse possessor in constructive adverse possession of a part of land she does not actually possess but that the writing describes
Constructive Adverse Possession: is equal to possession of the entire property
Not under color of title: you only get what is actually possessed
Policy concerns: (1) means owners to protect their interest; (2) notice to others; (3) object evidence to the court (where the place to transfer title).
Legal standard: hostile intention OR claim of right
Claim of right: the adverse possessor believes that the land he is occupying is his and intends to use it as such. Good faith but mistaken belief that you are the owner
NY, for real property there is only claim of right! NO hostile! (p. 160 second type – good faith claim)
Hostile Intention: adverse possessor knows the land he is occupying is NOT his, but he plans to exert control over it anyway. Occupants must intend to take the property even if they know it doesn’t belong to them (p.161)
NY eliminated hostile intention to real property. However, it still applies to personal property (therefore standard in NY for personal property is either hostile intention or claim of right)
If the owner initially gives permission to enter, the SOL does not start until you tell the owner you are rejecting permission and entering adversely