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Property I
St. Johns University School of Law
Sheff, Jeremy N.

Professor Jeremy Sheff

Spring 2011


Property Outline

Chapter 1: First Possession: Acquisition of Property by Discovery, Capture, and Creation

Unit 1: First Possession: Acquisition of Property by Discovery, Capture, and Creation

A. Acquisition by Discovery (Johnson v. M’Intosh)

· Acquisition by Discovery

i. The sighting or findings of hitherto unknown or unchartered territory; it is frequently accompanied by a landing and the symbolic taking of possession”

· Acquisition by Conquest

i. The taking of possession of enemy territory through force, followed by a formal annexation of the defeated territory by the conqueror

· Principle of first in time

i. Notion that being there first justifies ownership rights

ii. The “first” possessor is relative based on the circumstances of each case

iii. The case for first possession is generally weak

· General Rule is that only one party can have title to a parcel of land

i. “An absolute title to lands cannot exist, at the same time, in different persons, or in different governments” (Johnson v. McIntosh – decision reflects this, Precedent of Policy outweighs theoretical right of the Indians)

· Moral Rights Theory of Property (Locke’s Theory)

i. The argument that a person gains a moral claim to land if they invest both time and labor in that land (Natives do not cultivate their land, thus it remains a wilderness – they have not established an absolute right to the property)

B. Acquisition by Capture

· Ratione Soli

i. “According to the soil” “by reason of the ground, you own everything on top of it”

ii. A justification for assigning property rights to landowners over resources found on their land

· Rule of First Possession

i. Wild Animals (ferae naturae)

ii. He who mortally wounds an animal, by not abandoning his pursuit with the intention of individual use, deprived him of his natural liberty and brought him under control takes ownership of a wild animal. (Pierson v. Post)

iii. Court argues that if we grant possession of wild animals to the party that first sees or pursues the animal, but has failed to deprive the animal of its natural liberty, wound the animal and subject the animal to his control we would encourage quarrels and litigation—it is not enough to just see and pursue a wild animal, a party must pursue, wound and capture the animal and thus deprive it of its natural liberty (take absolute corporal possession of the object)

iv. An Industry Usage/Custom Exception exists for the pursuit of a mortally wounded animal (Ghen v. Rich)

v. It is impractical and unreasonable to gain complete corporal possession of a whale immediately after it is killed, the judge follows industry custom for the possession of a whale on Cape Cod

1. “If a fisherman does all that it is possible to do to make the animal his own, that would seem to be sufficient”

2. “Unless (industry usage) is sustained, this branch of industry must necessarily cease, for no person would engage in it if the fruits of his labor could be appropriated by any chance finder”

vi. Industry Usage helps to establish what constitutes actual possession in this case

vii. Malicious Intent

1. Where a violent and malicious act is done to a man’s occupation, profession, or way of getting a livelihood, there lies an action (Keeble v. Hickeringill)

2. A person who has the intent to capture animals to sell these animals for profit has a claim against anyone who has a malicious intent to drive these animals away and has no intention to capture the animals for his own profit

3. If a man interferes and does damage to the employment of another, for his own employment, then there is no action because both parties have equal liberty to pursue the property

· Constructive Possession

i. A trespasser who captures a wild animal on the land of another might still have no rights to the animal as against the landowner, even though the landowner never had actual physical possession or control and even though the trespasser does

ii. Possession is granted by virtue of someone’s ownership of land (owner of land is considered to own the things upon it, even wild animals)

· Pre-Possessory Interest

i. Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. This pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion (Popov v. Hiyashi)

ii. Gray’s Rule (Rule utilized to determine who is the possessor of a foul baseball)

1. The Ball must stop moving

2. The Fan must stop moving

3. When the movement stops, the fan must have control

4. Incidental contact before the end of the momentum that causes a loss of control, means that the fan did not have possession (exception for tortious contact)Public iii. Policy plays a role in making these decisions – in Popov case, we don’t want to encourage people to benefit from mob violence

Unit 2: Rights of Owners

· Right to Inhabit

· Right to Use

· Right to Include

· Right to Alienate (Right to Transfer)

· Right to Destroy (This right may be limited depending on the object)

· The Right to Exclude

i. Every person has the right to the exclusive enjoyment of his own property for any purpose which does not invade the rights of another person

ii. Society has an interest in punishing and deterring intentional trespassers to protect the integrity of the legal system and to protect the rights of individual landowners (Jacque v. Steenberg Homes, Inc.)

· Justifications for these Rights:

– Utilitarian/Efficiency – Best Results for the most people

– Consequentialism – Incentives, Results, Competition

– Deontology/Moral Rights – Labor and Desert Investment creates some right

– Personhood Justification – The meaning of being a human being; this is broader and deeper then the greatest good

· Qualifications on the Right to Exclude

i. “Man’s property right is not absolute”—there is an obligation to exercise your rights in such a way that it does not interfere or infringe upon the rights of others—“necessity, private or public, may justify entry upon the lands of another” (State v. Shack)

ii. The ownership of real property does not include the right to bar access to governmental services available to migrant workers (State v. Shack)

iii. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it (Marsh v. Alabama)

iv. There are more fundamental rights, such as the right to freedom of speech and religion granted by the Constitution, that supersede a property owner’s right to exclude (Marsh v. Alabama)

§ Public Policy argument—the right to exclude has limits and other things that we find important define those limits. (i.e. Constitutionally granted rights)

v. The very essence and origin of the legal right of property is dominion over it—property must have been reclaimed from the general mass of the earth, and it must be capable by its nature of exclusive possession (Hinman v. Pacific Air)

§ The air, like the sea is by its nature incapabl

benefit of the bailment is for both the bailor and the bailee

ii. Gratuitous Bailment

§ Only one party benefits from the bailment

Unit 5: Adverse Possession

· The law of adverse possession rewards the users of idle land by holding for them the possibility of legal ownership

i. Adverse possession functions as a method of transferring interests in land without the consent of the prior owner, and even in spite of the dissent of such owners

· To acquire title to real property by adverse possession not founded upon a written instrument, it must be shown by clear and convincing proof that for at least fifteen years there was an actual occupation under a claim of title, for it is only the premises so actually occupied and no others that are deemed to have been held adverse. The essential elements of proof being that either the premises are

i. Protected by a substantial enclosure, or

ii. Usually cultivated or improved (Van Valkenburgh v. Lutz Rule)

· Elements of Adverse Possession: Possession must be:

i. Actual

§ Actual physical possession is useful because it is good and clear evidence that shows the court who is in possession of the property

ii. Exclusive

§ Exclusivity makes sure that the true owner maintains some rights—if possession were not exclusive than adverse possession would be no more than trespassing

iii. Open and Notorious

§ Allows true owners to be somewhat secure in their ownership and hold off on constant monitoring of their property

iv. Adverse/Hostile/Under a Claim of Right

§ Assures that the adverse possessor intends the land to be theirs

v. Continuous for the Entire statutory period

§ Ensures fairness to the owner, establishes the intent of the adverse possessor

vi. “To constitute adverse possession, there must be actual possession which is uninterrupted, open and notorious, hostile and exclusive, and under a claim of right made in good faith for the statutory period (Howard v. Kunto)

vii. Tacking of adverse possession is permitted if the successive occupants are in “privity”

§ Privity–there simply must be some sort of reasonable connection between successive occupants of real property to raise their claim of right about the status of the wrongdoer or the trespasser

§ Between purchasers, privity is established as long as there are a series of transactions that transfer the deed or title to the property to the owners in privity

§ Any property in an adverse possession claim must be used as any typical owner would use the property—if the property is a summer house, has it been used as a summer house? If it has, then possession is deemed to be continuous

· Color of Title v. Claim of Title

i. Color of Title

§ Refers to a claim founded on a written instrument (a deed or will), or a judgment or decree that is for some reason defective and invalid

ii. Claim of Title

§ One way of expressing the requirement of hostility or claim of right on the part of an adverse possessor