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Property I
SUNY Buffalo Law School
Steinfeld, Robert J.

Property Steinfeld Fall 2015

Initial Question: Who is suing whom for what?



By Discovery – The sighting or finding of uncharted territory (res/terra nullus: thing/land belonging to no one) that give rise to inchoate title that must be perfected by settling in and making effective occupation (maybe).
By Conquest – Taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by conqueror.
Principle of First in Time – The notion that being there first justifies ownership rights.

Rights of ownership:

Right to exclude
Free to use the resources
Right to transfer property

Acquisition by Discovery:

Johnson v. M’Intosh (Supreme Court of US, 1823) – Page 3

BI: Johnson (P) purchased land from Indians, claims he owns land. M’Intosh (D) bought land from US. D occupied land, P brought action of ejectment against him. Johnson arguing Indians had rightful possession of land.

Issue: Can Indians (conquered) grant a title to lands to private individuals which the courts of the US (conqueror) will uphold?

Hold: Indians have right to occupy the land but the governments of the Europeans/settlers have title to the land via right of conquest. The Indian’s right to occupancy does not give them the right to transfer land. Two different rights involved: right to soil (private property), right to govern (kept by the government).

Chief J. Marshall: if there is a conflict between rules, then OUR rules govern

RULE: the right to occupancy gives you the right to live on the land, use the land, and the right to exclude. This does not include the right to alienation (i.e. to sell/transfer title of land).

Gen Notes:

Writ of error: an appeal to try an error of the law
Trover: legal remedy for wrongful appropriation of property
Property = a bundle of rights

Holder of title (USG): pre-emptive right to purchase or take possession through conquest
Right of occupancy (Indians): limited power to alienate their rights, can only sell their right to possession to the owner of the title.

Chain of title: every title must have a valid transfer down the chain

Acquisition by Capture:

Pierson v. Post (Supreme Court of NY, 1805) – Page 18

P (Post) was chasing the fox and D (Pierson) shot and killed the previously unwounded fox while both were on unpossessed land. P brought an action of trespass on the case to recover damages from an unlawful injury to the plaintiff’s personal property rights. D sued a writ of certiorari after losing in the lower court.

Issue: At what point does someone get legal possession of a wild animal (ferae naturea)?

Hold: Actual physical possession (or ensnarement) and/or mortal wounding with continued pursuit. One has to: (i) render escape impossible, and (ii) deprive an animal of their natural liberty.

Dissent/ “Livingston” Rule: (i) if the pursuer has a reasonable prospect of capturing the animal, and

continues the pursuit; then the pursuer has occupancy of the property

Gen Notes:

trespass on the case action: suit for money for interference with one’s property
ratione soli: constructive possession of wild animals on your property (discourages trespass)
writ of certiorari: lower court sends entire record up; facts and legal rules under exam.
Majority here agreed with the concept of “first in time” (i.e. Pierson was the first to actually possess the fox).This leads to certainty while the theory of pursuit leading to occupancy promotes conflict.


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 the property goes to the state

Heir Inheritance Preference: (only if dies intestate)

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 Rule of Primogeniture:eradicated today

PART II: The System of Estates pg. 208


Based on how long you have the right to hold the land

Devisable: Can it pass by will?

Alienable: Transferable inter vivos/during holder’s lifetime?

First Question: How do we create the estate?

Second Question: What are the distinguishable attributes?

Third Question: What future interest is there, if any?


Feudal England:

King owned the land and made grants to:

Tenure: big people


Forfeit: when a person failed to fulfill obligations to the king, he forfeited the land

E.g. stop paying property taxes (today)

Escheat: upon death w/o heirs, the land escheats to the king


Fee Simple [right to possession extends potentially forever] Fee Tail [until you die; after your death, right to possession passes to someone who owns the rest of the time] Life Estate [right to possession ends at the death of someone]

4) Leasehold Estates

Life Estate + Future Interest = Fee Simple

Fee Simple Absolute –p. 215

· Feudal Times:

o Rise of Heritability. Originally, no heritability. Lord had no obligation to recognize tenant’s heirs.

o Rise of Alienability. First 200 years after Conquest: Fee ≠ freely alienable. Became alienable in 13th century after the Quia Emptores.

o Rise of Fee Simple Estate. Estates

imes their natural parents (adoption wasn’t known at CL prior to 1926).

· Ancestors. By statute. Parents take as heirs if decedent leaves no issue.

· Collaterals. Brothers, sisters, nieces, nephews, aunts, uncles, etc. or their descendants by representation.

· Escheat. Feudal times = when a person died intestate, land and personal property escheated to overlord. TODAY = property escheats to the STATE.

Problems, p. 221:

O, owner of Blackacre, has two children, A (daughter) and B (son). Subsequently B dies testate, devising all his property to W, his wife. B is survived by three children, B1 (daughter), B2(son),andB3(daughter).A1(son)isborntoA.ThenOdiesintestate.WhoownsBlackacre in England in 1800? Under modern Americanlaw?

land passes to W.

TRICK: understand that B dies BEFORE O; B has NOTinherited!
Anything that W takes does not include an interest in theland
O diesintestate

B dies; B’s kids will inherit 50% of theland
The three of them will take50%
Allocation is done at the FIRST level; kids “step into” their parents’shoes
3 will take B’s interest by right ofrepresentation

A dies  A inherits 50% of the land
**Who owns Blackacre in England in1800?

RULE: eldest male available takes EVERYTHING

B would have gotten everything, with A being cut outcompletely
If A is dead, it descends to eldest son ofB

Convey = transfer that takes place during life(remember)

What does Atake?

A fee simple (“and herheirs”)

A dies intestate withoutissue…

It does NOT immediately escheat to thestate
Depends on the hierarcy of heirs. A might have ancestors orcollateral

A gets possessory life estate(conveys)

[Fee simple = extent of B’sownership]

When B dies, it escheats to the state (remainderin fee simple absolute)
A has the right topossession

Numerus clausus: prohibition of new or customized property interests, applies not only to estates but to all types of property interests. Grantors cannot customize inheritance beyond what is already recognized (other than a fee tail, grantor cannot add words of limitation to the inheritance of a fee simple; FSA is inheritable by anyone).