Select Page

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

Property – Spring 2010
Professor DiLorenzo
v Introduction
·   Basis of Property Rights:
o    Possession
o    Gift
o    Purchase
o    Labor
·   Property can be tangible and intangible
·   Property is a Bundle of Rights à rights are divisible thus don’t necessarily have the whole bundle
All are exclusive and perpetual
1.        Right of possession
2.        Right of use
3.        Right of fruits and profits
4.        Right to alienate (transfer interest)
5.        Right to destroy
·   Property rights create obligations in others not to interfere with owner’s possession
·   Sociological Jurisprudence – we decide what is property and what rights to assign it based on public policy
o    Contrast with strict formalism – definitional/ literal analysis
·   Causes of Action
1.        Trespass – ∏ has legal right of possession. ∆ has intentionally interfered with that property right without authorization.
o    Damages = monetary value of the exclusive right to possession
o    Trespass on the case doesn’t require legal right of possession
2.        Replevin – also called Action to Recover Possession
o    Exists only in personal property (in real estate = ejectment)
o    Must have a legal right of possession
o    Damages or return of the property
3.        Trover (conversion) – ∏ has right of possession. ∆ intentionally interfered without authorization.
o    Interference must be serious and significant
o    Damages = fair market value
v Property Rights in Wild Animals
Underlying policy: we want to encourage the capture of wild animals
·   An animal is “wild” based on generally shared expectations whether that class of animal has an owner (ex. dogs vs. pidgins)  
·   There are two ways of acquiring property rights in wild animals:
A.       Possession/ Intention
B.       Ratione Soli Doctrine
·   Pierson v. Post – Property rights in wild animals are acquired by occupancy (i.e. possession) – pursuit is insufficient.
o    Trespass on the case but the property interest was the right of possession
o    General Rule: Property rights in wild animals are acquired by occupancy only.
o    Is pursuit possession? No.
§ Policies the court wished to encourage:
i.            The capture of wild animals
ii.            Certainty in litigation – a court must have objective evidence of the a. the identity of the animal (i.e. is this the exact fox you were pursuing) and b. that you would eventually control it
iii.            Preserve peace and order in society – clear notice that you have a property claim to prevent others from exercising a counter claim
o     The dissent held that the underlying policy was to kill noxious animals – if the majority embraced that policy, the result would have been different
o    Mortal wounding is not possession:
§ Animal is not brought within certain control
§ No objective evidence

Underlying policy: discourage trespass i.e. interference with the property rights of others
·   “By reason of acquisition of the soil”
·   Requirements for applicability:
a.        Private property
b.        Trespasser
c.        Trespasser satisfied the general rule (intention and the property)
·   McKee v. Gratz – When determining if the ratione soli doctrine applies, note that a license may be implied from the local habit/custom à may undercut trespass requirement.
o    Makes a big difference if mussels were taken from the land or the water
§ Navigable waters are owned by no one, so if mussels were taken from the water then there was no trespass (ratione soli doesn’t apply)
o    Court said this was a question for a jury because while it seemed clear they were taken from the ground, a license may be implied from the habits/custom of the country (land that isn’t fenced may imply a right of entry depending on custom)

v Loss of Property Rights in Wild Animals
·   Generally speaking property rights are not defeasible
·   Mullet v. Bradley – Property rights in wild animals are defeasible unless claimant can prove animum revertendi.
o    Property rights in wild animals are defeasible when the animal regains natural liberty
o    Natural liberty means:
a.        Free from artificial restraint
b.        Returns to natural habitat
o    Natural Liberty provides notice that this is a wild animal
o    EXCEPTION to defeasible nature of property rights: Animus Revertendi – property seizes unless owner has labored to tame animals and they have a habit of returning
§ Policy: Labor is more important than notice
§ Must show:
i.            They have returned before
ii.            Didn’t lose that tamed habit

v Rights in Natural Resources
·   Question of whether an established law should apply to a new situation depends on similarities in the underlying policy
o    Borrows from the law of wild animals based on underlying policy: society wants to encourage its capture. Is the best way to do this through assigning it property rights?
o    Property rights in water are defeasible (animus revertendi doesn’t apply because you can’t tame water)
o    Borrow/Capture Rule – you don’t own oil until you capture it (all you have is exclusive right to drill) – LA and east
o    Ownership in Place Doctrine – if you own soil you own oil and natural gas underneath it even if you haven’t drilled and captured it yet

vFinders’ Rights
·   Property (not natural resources) is generally not defeasible à if its lost, it’s still your property
·   Foulke v. New York Consolidated RR Co.
o    Depends if property is: lost, abandoned, or mislaid
·   ABANDONED – owner intentionally relinquishes all rights
o    Exclusive Inference Rule – consider property abandoned if there is no other possible inference that can be drawn
o    Put property down voluntarily and temporarily and forgot to take it
o    To determine if property was mislaid look to the thing and surrounding circumstances
·   LOST – casually and involuntarily parts with possession
o    If property wasn’t abandoned, and not mislaid then its lost i.e. it was parted with by mistake
·   Nature of the item and the circumstances in which its found à to determine if lost or mislaid
·   Armory v. Delamirie – Finder never becomes the true owner at common law.
o    When property is lost or mislaid owner doesn’t lose rights when they lose possession
i.            Finder has right to possess and has an obligation to safeguard for the true owner – OBLIGATION TO RETURN TO TRUE OWNER ON DEMAND
ii.            If property is damaged and finder is negligent then finder is responsible
o    Finder only has temporary right of possession against everyone but true owner and finder never becomes the true owner.
o    Finders have a property interest insofar as they can maintain an action in trover in trust for the true owner (*NOT COMPLETE PROPERTY RIGHT – DOESN’T POSSESS COMPLETE BUNDLE! MISSING: EXCLUSIVE, PERPETUAL, RIGHT TO DESTROY)
·   Hannah v. Peel – Possession can be actual or constructive.
o    First finder has superior rights than subsequent finder but still less than true owner
o    Property is mislaid because it is unlikely it got on top of a window by accident
o    Hannah says there is no such thing as constructive possession but we reject this: Owner of the house is the first finder: owner of private property is in possession even if he never stepped foot in it à EXCLUSIVE POSSESSION = CONTROL
·   Policy: We want to maximize the possibility of return to the true owner
o    Lost/mislaid in a public place –owner is unlikely to return
o    Lost/mislaid in a private place – owner is likely to return
·   Quasi Bailment Obligation
o    Imposed on all finders of property
o    Obligation of owner of place to safeguard article – moment item is left in place, owner of place is instantly in possession – finder must return it to the owner of the place found
o    EXCEPTION: public property and item lost­ – he has the quasi bailment obligation  

LOST                                                 MISLAID
Quasi Bailment Obligation

Quasi Bailment Obligation
Finders Rights (doesn’t need to give it to owner of place)
Quasi Bai

on the adverse possessor we want to know he really wants to be the owner. Absolute not conditional ownership. Claim of right is not a claim of adversity.
§ Manillo rejects this and adopts the French Doctrine which recognizes either hostile intent or claim of right but focuses not on their subjective intent (“I thought it was mine”) but looks at their actions and surrounding facts
ü I.e. you took it
o    In NY the common law recognized either hostile intention or claim of right. In 2008this was modified by statute:
§ RPAPL §511 à only claim of right is acceptable in NY(as of the date of the statute) – this ELIMINATES HOSTILE INTENT AS A BASIS FOR ADVERSITY
§ Policy behind this statute is that we don’t want to encourage wrongdoing (i.e. trespass)
§ Adverse possessor must admit objective evidence that would lead most people to believe they were the owner (i.e. invalid deed, taxes, inaccurate deed)
o    There is no majority rule – half the states have the NY rule and the other half recognize hostile intention [*on the exam, if in state X, analyze both!*] ·         Open and Notorious Possession
o    Open and notorious occupancy is:
§ Possession apparent to the naked eye (MINORITY RULE)
§ An owner must know his boundary line even if it means hiring a surveyor (MAJORITY and NY)
ü Provide the owner with actual knowledge that someone is claiming title –OR –
ü Claim is apparent upon reasonable inspection – this means that owners have to survey their land or their charged with what a reasonable survey would have revealed
o    The policy behind this requirement is to provide notice to the true owner that someone is making a claim against their property
·         Continuous Possession
o    Possession must be regular and without significant interruption
§ Example: if it’s a summer home you have to regularly be there in the summer
o    Policies:
1.        Provide notice to the true owner so they can exert ownership/protect their property (ex. the adverse possessor would need to take possession of a summer house in the summer when the owner would normally be there)
2.        Provide evidence to the court that the adverse possessor is actually claiming title – must be regular throughout the entire statute of limitations so that he can prove to the court you have not abandoned the property
§ True owner retakes possession of the property
ü Through self help
ü An action in ejectment – must complete the action by getting a court marshal to enforce       the judgment  (although some courts are more forgiving)
§ The owner retook for a short time and then the adverse possessor took it back
ü True owner retakes for 2 weeks – that is a significant interruption
§ The owner must interrupt under claim of ownership – if the owner interrupts with the permission of the adverse possessor then he has not interrupted at all
·         Exclusive Possession
o    The adverse possessor must exclude true owner and general public à proves to the court he wants to be the true owner
·         Legal presumption: because day 1 for continuous and exclusive possession is hard to prove, the adverse possessor need only establish day 1 for elements 1-3 and that day becomes day 1 for elements 4 and 5
Claimant must prove two requirements:
1.       Possession – deprived animal of natural liberty and bring it in your certain control
2.       Unequivocal intention to appropriate animal to individual use