Select Page

Property I
SUNY Buffalo Law School
French, Rebecca R.

Property Law is the study of the relationships that exist between persons and the state with respect to valued resources often, but no only, land and material property.
Possession-physical control over property
Bundle of Rights-possess, own, exclude/include others, dispose of (sell/giveaway), use, enjoy fruits
Acquisition of Property:
1.Discovery 2. Capture 3. Creation 4. Find 5. Adverse Possession 6. Purchase 7. Gift
1. Discovery:
Rule of first possession-ownership justified by being first, began the origins of property law
Discovery-finding/sighting of unknown or unchartered territory
Conquest-taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror
Johnson v. M’Intosh (Supreme Court) (1823) (3)
FACTS                        P bought land from an Indian tribe who originally lived in the area. 
The tribes were in rightful possession of the lands they sold. 
The trial court denied the power of the Indians to convey the lands
They were incapable of transferring absolute title
ISSUE Do the Indian tribes have the power of conveying absolute title of their lands to others?
HOLDING     No. Indian occupied lands vest title in discoverers.
            They are not capable of transferring title to others
            Title claimed by P cannot be recognized by US courts
            Gave right of discovery over occupancy
THEORIES    Right of occupancy
These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy
                        Principle of Discovery
                                    Acquisition of discovery v. Right of occupancy
RATIONAL   Power, usage of conquest
2. Acquisition by Capture:
Law of wild animals-Ferae Naturae (wild animals, can also be natural resources, water, oil)
-to acquire property over ferae naturae while in pursuit must mortally wound, not abandon and must render the animal inescapable (keeble/ducks), physical control not necessary, must deprive animal of its liberty
-Property in wild animals is acquired by occupancy only, Mortal wounding or death of an animal constitutes occupancy.
-specialized rules exist in certain industries (first spear in whale acquires title over all other finders)
Constructive Possession-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 land owner never had physical possession or control because owner had constructive possession
Ratione soli-Conventional view that an owner of land has possession
Animus Revertendi-returning animals Original possessor does not lose title of wild animals that roam if they have a strong habit of returning to the area/original possessor
Ratione soli     Conventional view that an owner of land has possession
Notion of the commons-individuals don’t own things for themselves until the exclude others, notion of commons governs the possession of certain, fugitive resources, groundwater-well spacing, oil and gas-rates of extraction, fish-quotas)
MBE Question:
11. C is a lobsterman. Recently a number of her traps have diminished dramatically. C saw S who admitted to releasing C’s traps. C sued S for the value of the lobsters. What result?
-lobsters are ferae naturae, by depriving them of their liberty by placing in traps C has possession
3. Acquisition by Creation:
-Primary purpose is of recognizing property is to reward labor, but complication arise when labor and goods are not one party’s alone but are mixed with others
Cheney Brothers v. Doris Silk Corp. (2nd Cir) (1930) (64)
RULE             CL-imitation and copying are basically allowed
                        Exceptions-Copyright, Trademark, Patent
International News Service (INS) v. Associated Press (AP) (Supreme Court) (1918) (60)
FACTS                        INS Taking recently written articles from AP and selling them as their own. 
ISSUES          (1) Whether there is any property in news (2) Whether, if there be property in news collected for the purpose of being published, it survives the instant of its publication in the first newspaper (3) whether defendant’s admitted course of conduct in appropriating for commercial use matter taken from bulletins or early editions of AP publications constituted unfair competition in trade
HOLDING     Bedrock IP law. News is quasi property. It is unfair trade
Moore v. Regents of University of California (CA) (1990) (79)
FACTS-          Researchers at UCLA, unbeknownst to Moore(P) used specimens of his tissue to produce a potentially lucrative cell line.
ISSUE-           May a person whose tissue is used for profitable research withoutut his knowledge maintain a conversion action?
HOLDING-    No. To maintain such an action P must prove interference with ownership right. P had no right of possession. P had no expectation to receive his organ back. Case is based on labor law because Drs. Put time and effort into research.
4. Acquisition by Find
-Many considerations for finder, place and circumstances of find (lawn/house, public places), courts want to protect interests of true owner and for finders to tell truth
Trover-CL action for money damages resulting from the defendant’s conversion of plaintiff’s property, trespass for real property
Replevin-CL action to obtain return of the goods, not damages) ejectment for real property
CL Rule-title of finder is good as against the whole world but the true owner (jewel in chimney) physical control indicates possession
Mislaid property-intentionally placed somewhere by true owner and forgotten (wallet in barbers

ry cleaner gives them and Clara sells them. What result?
-Andrew has a claim to Clara, not the dry cleaner
7. Nate goes to the clothing store to buy a coat. Clerk invites him to try one on. Nate has to take off his coat and hands it to the clerk who loses it. What result?
-This is a bailment. Clerk offering presents circumstance for a duty of care, Clerk L, implied bailment, brings action of detinue against Clerk
-If trying on at K-mart different expectations
9. Joan handed her briefcase to John, a concierge at a Hotel, telling him to keep it for the day. She receives a claim tick. Which states that the bailee is not liable for any lost goods while in possession. The suitcase is lost. What result?
-creates contractual relationship (assumpsit) and is NL
MBE Questions:
5. A’s messenger, T dropped a bond through a letter slot in M’s office. The bond was in an envelope bearing the name of Arthur. M’s employee discovered the bond had been incorrectly delivered and was not the one ordered by M and called out to the messenger. D stepped up to the door. M’s employee believing D was the messenger gave D the bond who absconded with it. A brought suit against M to recover?
-M, created an involuntary bailment, no consent, no acceptance. Owed no duty or care
8. R bailed goods to L. The goods were then wrongfully destroyed by A. L sued A to recover the value of the goods. A claimed L cannot recover because R owned the goods. What result?
-L has rights to property as bailee (R has greater rights but L can still sue)
5. Acquisition by Adverse Possession:
-squatting on property to gain title
Statute-fixed period of time when owner of land can no longer bring action against adverse possessor, in NYS 10 years from entry on to property
Actual Possession-neighbors recognize your possession, ordinary community use (Howard v. Kunto-summer home only used in summer)
Continuous-must have continuous use (Howard v. Kunto-summer home as continuous, tacking between adverse possessors but must have PRIVITY)
Notorious-owner of property being adversely possessed expected to know if on property, if owner unable to realize the possession is not open and notorious
Exclusive-adverse possessor does not share with owner or public at large
Claim of right