PROPERTY OUTLINE
Section I 2005
I. Property is defined as the right to possess, use, and enjoy a determinate thing (either a tract of land or a chattel) The study of property is the study of the relationship between people with respect to things.
A. Real Property: Land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land; devising – the act of giving real property by will.
B. Personal Property: Any movable or intangible thing that is subject to ownership and not classified as real property’ bequeath – to give personal property by will.
1. Tangible Personal Property(Physical) – Physical property of any kind, property that can be seen, weighed, measured, felt, or touched, or as in any other way perceptible to the senses, such as furniture.
2. Intangible Personal Property(Spiritual) – Property that lacks a physical existence. Examples include stock options
II. First Possession
Lockes Labor Theory: Mixed his labor with it, and joined to it something that is his own and thereby makes it his own property.
A. Acquisition by Discovery
1. Johnson v. M’Intosh (1823) – “The principle of converting an already inhabited country by conquest forces original inhabitants to be considered mere occupants and entitles them to nothing.”
i. Conquest – Taking possession of enemy territory out of force followed by the formal annexation of the defeated territory
ii. Title of all land comes from – a grant of the predecessor, the crown (England) or from the US Government.
iii. Right of Pre-emption: Right to buy before others.
B. Acquisition by Capture
1. Pierson v. Post (1805): Hot Pursuit does not constitute possession;
Possession is determined by who
1. killed,
2. captured, or
3. mortally wounded the animal.
Likelyhood that the animal will return home (domestic animal).
Possession – what gives sufficient notice of possession. Two different view of this notice: mortally wounding and capture vs. made known to the world (intent) that you are about to get it.
2. Ghen v. Rich (1881): The facts of this case warrant the application of local custom in deciding ownership and possession. When only one act of appropriation(the exercise of contr
the rights of the first possessor are lost. An exception is made if the animal returns periodically to the prior possessor, or if the prior possessor is in pursuit.
2. FugitiveResources: sources that wander from place to place
a. Water:
i. Groundwater
1. English Rule: whoever captures the water first, becomes the owner
2. American Rule: reasonable use; wasteful uses of water, if harmful to neighbors, were considered unreasonable and hence unlawful
b. Surface Water
i. Prior Appropriation Doctrine: the person who first appropriates water and puts it to reasonable and beneficial use has a right superior to later appropriators
1. Riparian Doctrine: Each owner of land along a water source has a right to use the water, subject to the rights of other “water owners.”
c. Oil and Gas: Under common law, the first person to extract the oil or gas or to capture the wild animal becomes the owner.
