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Property I
SUNY Buffalo Law School
Steinfeld, Robert J.

7 forms of acquiring property
Discover (i.e. land)
Find (objects besides land)
Adverse Possession (squatting)
Rights of ownership:
Right to exclude
Free to use the resources
Right to transfer property
Acquisition by Discovery – The sighting or finding of uncharted territory that give rise to inchoate title that must be perfected by settling in and making effective occupation.
Principle of First in Time – The notion that being there first justifies ownership rights. Can be done by acquisition by discovery.
Acquisition by Capture-
Ferae naturae: wild animals (Pierson)
Domita naturae: domesticated animals
Ratione soli: “relating to the soil” – Wild animals and other natural resources captured on the private land of another belong to the landowner, and not to the captor.
àRule of capture has been applied to the acquisition of all sorts of fugitive (moving) resources, including oil, gas and water. It has seen been modified by more environmentally-protective sensibilities now contained in various statutory, regulatory and treaty-based laws.
States regulate fishing and hunting: licensing, limitations, private areas, time of year, etc.
Trespass doctrine
Endangered Species Act
Environmental law
Mineral, gas & oil law
Johnson v. M’Intosh – Pg 3 DISCOVERY
Supreme Court of US, 1823
Johnson purchased land from Indians, claims he owns land. M’Intosh bought land from US. Johnson arguing Indians had rightful possession of land.  Ct. determines Indians have right to possess land, but can they sell it; did they have the right to sell it. Marshall’s decision split the property right, someone can be the owner and someone else can have possession. But, the right to occupancy does not give the right to transfer land.
“First to discover, takes all” Rule: Discovery of land gives the exclusive right to settle, possess, and govern the new land, and the absolute title to the soil, subject only to certain rights of occupancy in the natives (Federal government has exclusive title). The right to possession does not give the right to sell the land. If only have possession, cannot alienate (transfer) the land. The right to preemption comes from ownership and gives one the right to transfer (alienation).
Pierson v. Post  – Pg 18 CAPTURE
Supreme Court of New York, 1805
Plaintiff is Post, who was chasing the fox; Defendant is Pierson, shot the fox. The action is trespass on the case, to recover damages from any unlawful injury to the plaintiff’s personal property rights.
Issue: At what point does someone get legal possession of a wild animal?
“First to kill and capture” Rule: Capturing means trapping or killing the ferae naturae; when an animal is being pursued but has not been killed or captured, it is fair game for others to take it. Mere pursuit is not enough. Actual physical possession requires mortal wounding. One has to render escape impossible, depriving an animal of their natural liberty.
The Initial Feudal System
L           T   = (lord-tenant relationship) Tenure for life
Heritability: Tenant had only lifetime estate. Upon tenant’s death, his time on the land ceased and lord would re-grant the land to the heir (inheritance). *Can only go to family members.
To A’s heir, to the heir’s heir, and so on down the centuries.
                        Heirs – no one has heirs while living
                        Issue – lineal descendants – children
                        Ancestors – parents, grandparents
                        Collaterals – siblings and their children
                        Escheat – if someone dies w/o heirs and intestate (no will) the property goes to the state
                                    Heir Inheritance Preference: (only if dies intestate)
            à Based on individual state statute: (but generically)
§  If spouse and children, share inheritance
§  No spouse, then issue preferred
§  No spouse/issue, then parents preferred
§  No spouse/issue/parents, then collateral preferred
Old English Law: Rule of primogeniture applies—oldest son gets the property.
Modern Law: Sex plays no role in inheritance. Interest goes through right of representation.
Expression of Representation:
Explains how property is divided among descendants
If no heirs      , then it will go back up to the parents, the great-grandparents… if still nothing, it escheats to the state and state gets a possessory fee simple.
A         B
50% of 50%
50% of 50%
1      2      1       2
Alienability: The right to transfer your right to possession of the land. Tenant was allowed to convey the fee to another during his life openly and without the lord’s consent. *Can transfer your right to possession to someone outside family.
Right to exclude
Alien = power to rearrange all legal relations.
Restraints on Alienation
Disabling restraint
Forfeiture restraint
Promissory restraint
Divisibility: Fee became “willable.”
= Modern Fee Simple
Right to possess land that is heritable, alienable, and divisible.
Fee Simple
Fee tail (abolished)
Cannot be created in NY
Designed to keep land in the family
Has a form of heritability, not devisable or alienable.
They are thought to have a natural ending point (when there is no more issue)
Unlike F.S. b/c it ends, and is smaller.
NY Statute (CB pg. 225)
“To A and the heirs of his body” creates a F.S. in A, but they further provide that to the interest created in B if A dies leaving no surviving issue. If A leaves surviving issue at his death, B’s interest fails, and A’s fee simple cannot be divested thereafter. In such case, A can devise his fee simple to whomever he chooses.
Life estate
Leasehold Estates
Based on how long you have the right to hold the land.     
Words of purchase
Words of limitation (what kind of estate she is getting, for how long)
To Ashley
and her heirs
for life
Today, no long need these words. DEFAULT RULE: presumed to transfer the whole estate (fee simple), unless one indicates they mean to transfer less than the who

Effect of “To A and the heirs of his body and if A dies without issue to my daughter B and her and the heirs of her body” in states where FT is abolished:
o   Non-Fee Tail States:
§  Category I:
·         Statues provide limitation of “to A and heirs of his body” created a fee simple absolute in A and that any gift over to A’s issue from the devise is void. (although A could subsequently devise to them). B’s interest is completely void.
§  Category II: (NY)
·         Tries to balance state interest. A has a fee simple and, if at A’s death, A leaves no surviving issue, B gets it in fee simple absolute only at A’s death.  If A does leave surviving issue, B’s interests fails and A’s issue gets it in FSA. In such a case A can devise his fee simple, but as a fee simple conditional, conditional on him having issue, for if he does not, estate goes to B.
§  Common Law:
A had a possessory fee tail, B had a remainder in fee simple, O (grantor) had nothing, because B has fee simple.
Life Estate 
Must be measured in explicit lifetime terms and never in terms of years.
o   Life estate pur autre vie – Life estate measured by a life other than the grantees.
o   “To A for the life of B”
o   The life tenant’s interest must be balanced with the interest of the future interest holder(s).
o   Future interest if held by the grantor is a reversion, if held by a third party it is a remainder.
o   Life tenant is entitled to all ordinary uses and profits from the land.
o   The life tenant must not commit waste – must not do anything to harm the future interest holders.
Restraints on Alienation:
Seen as unacceptable by court because:
·         Make property unmarketable
·         Tend to perpetuate concentration of wealth by making it impossible for owner of  property to sell property and consume the proceeds
·         Restraints discourage improvements on land. Why improve land if you can’t sell it?
·         Restraints prevent the owner’s creditors from reaching the property.
·         State argues we’re all worse off if the property can’t be put to its most valuable use. If it’s alienable, it will find its way into the hands of those who value it the most.
o   Disabling restraint – Withholds from grantee the power of transferring his interest (involved in White v. Brown).
o   Forfeiture restraint – Provides that if grantee attempts to transfer his interest, it is forfeited to another person.
o   Promissory restraint – Provides that the grantee promises not to transfer his interest (kept to grantees and heirs).
o   Partial restraint – Limiting conveyance to certain persons, or, putting a time limit on the restraint, may be valid if the restraint is found to be reasonable in purpose, effect and duration.