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Property I
SUNY Buffalo Law School
Steinfeld, Robert J.

I. First Possession and Property Rights
A. Acquisition by discovery
1. Johnson v M’Intosh (USSC 1823) (Action of ejectment for land in Illinois….claimed by plaintiffs under purchase from Piankeshaw Indians, and by defendant through a grant from US): Do Indians have the power to convey absolute title to private individuals? Indian inhabitants are to be considered merely as occupants, who may possess their lands, but are incapable of transferring absolute title to others. Govt is the sole entity allowed to purchase titled land from natives. Court reasoned that our country was founded upon the European principle of discovery, which gave exclusive title to the white persons who discovered it. Upon gaining independence from England, our titles rested upon the discovery and conquest principles. Court mentioned Virginia’s example of a statute barring Indians from conveying title; that right is one reserved to the state. If we allow Indians to covey title, all our current titles will be called into question. This decision is not one of legal difficulty, but one of major importance so as to reduce the amount of future litigation and confusion in ascertaining title.
a. Res Nullius – thing belonging to no one – and Terra nullius – territory belonging to one. During the discovery period land inhabited by non-European peoples was considered to be Terra Nullius, who had no legal title to the land.
b. Theory of first possession – riches of the earth were initially held in common, but because greed eventually led to scarcity, the institution of private property became necessary to preserve peace. AKA occupancy theory – he who has it owns it. Dates to Roman law (Grotius, Pufendorf, Blackstone). Doctrine of first possession reflects the attitude that human beings are outsiders to nature, as opposed to the Indians, who thought they were one with nature
c. Labor theory and John Locke – by mixing his labor with it, man makes the land his property. Consider the law of accession, which arises when one adds to another’s property by labor alone. See Haslem v Lockwood (1871) – abandoned property belongs to the first occupant who changes the property’s condition and greatly enhances its value by his labor (manure note case).
d. Locke shared the common European view that the natives had no claim to the land they occupied because their occupancy of those lands did not involve an adequate amount of labor to perfect a property interest. Ultimately followed by Johnson court. In 1790s Indians were thought to have a property right, but not by the time of this decision.
B. Acquisition by capture
1. Pierson v Post (SCNY-1905) (on public grounds Post was hunting a fox w/ his dogs, and Pierson, observing this, killed the fox first to prevent Post from catching it): Did Post, by pursuing with his hounds, acquire a property right in the fox? No; mere pursuit, without more will not constitute legal possession of a wild animal. It may suffice to mortally wound and continue pursuit of the animal, but here Post had not met this task. Court reasons that this decision will limit litigation, preserve certainty, and preserve peace in society. Dissent argues that the fox is a noxious beast and we should encourage any possible way to extinguish them. Thinks the majority ruling will lower incentives to hunt foxes. Dissent’s rule: property in wild animals may be acquired without bodily touch, provided the pursuer be within reach, or have a reasonable prospect (which did exist in this case) of taking what he has thus discovered with an intention of converting to his own use. Majority – applies a clear bright line rule, dissent advocates a fuzzy rule. Both relied upon ancient treatise writers.
a. Dissent also argued that this should be decided by a sporting arbiter according to local custom (in which case Post would have won). Here, the local custom ended up being contrary to the majority’s rule.
2. Ghen v Rich (USDC MA 1881) (Lancer-plaintiff-libellant bombs whale, waits for it to wash ashore, then pays a fee to its finder. The finder here kept it. Ship owner sued (replevin) for damages (whale’s value)): In deciding who owns whale, should court follow general admiralty law, or follow local custom? Local custom – Lancer keeps whale. Industry custom among whalers is to be upheld. If the fisherman does all that is possible to make the animal his own, that is sufficient. Unless this usage is upheld, the industry would necessarily cease. The rule gives reasonable comp for securing and reporting the property. An industry grew around this practice. The whole community follows the practice.
a. P could have argued Pierson majority rule (mortally wound) and won.
II. System of estates
A. Feudalist roots – Norman Conquest 1066 led to property law in England
1. Tenure: a vertical relationship btwn tenant and landlord. King → Tenant in chief → Mesne lord → tenant in demesne. Lower tenants found via subinfeudation – tenant granting parcel of his land to subtenant in exchange for service
2. Feudal tenure and Services: there were three goals of the English ruling class: military security, revenues, and support of the church.
§ Military: principal tenure was knight service – required tenant to provide specific # of men to fight for king 40 days each year
·         Almost all land granted by king was through knight service (money was accepted more later). Another tenure was grand sergeant – pageantry for the knights
§ Economic: principal tenure was socage – any kind of service may be required (money, playing, repairing, delivering)
§ Religious: singing at mass, praying (frankalmoign)
3. Feudal Incidents: obligations that a tenant owed his lord
§ Homage and fealty: 1 of the most significant features of feudal society à man dedicated his loyalty to king, and in return received protection in disputes with his lord
§ Aids: entitled a lord to demand help from his tenants in case of financial emergencies
§ Forfeiture: if a tenant breached his oath of loyalty or refused to perform feudal services, his land was forfeited to the lord
§ Wardship & marriage: when a tenant died leaving heir under 21, tenant’s lord was heir’s guardian, entitled to possession of the land, together w/ its rents and profits, but w/ the obligation to provide the heir subsistence & not commit waste; lord could also sell heir in marriage
§ Relief: when tenant died, heir had to pay the lord an appropriate sum to come into inheritance
§ Escheat: if tenant died w/o heirs, land returned to the lord whom it was held
4. Avoidance of feudal incidents:
§ Rich wanted to avoid taxes, so they adopted 2 ways of transferring possession of land
·         1) Tenant in demesne could SUBSTITUTE for himself some new tenant who would hold the land from his lord (required lord’s consent)
·         2) (DON’T WORRY ABOUT MASTERING) Subinfeudation: tenant adds new rung to bottom of feudal ladder, being mesne lord and having tenant who rendered him services (pg. 179)
o   Hurt king and barons greatly, so they enacted the Statute Quia Emptores in 1290, prohibiting subinfeudation altogether
o   Attempt by holders of land to make land alienable when it otherwise wasn’t
5. Feudalism ends
§ Statute Quia Emptores: led to all great lords having to concede to all free tenants the right to substitute a new tenant for all or part of their land without the lord’s consent (which was the opposite of how it used to be)
·         *Prohibited subinfeudation in fee simple*
·         1) Established free alienation of land
·         2) Existing mesne lordships tended to disappear, and most land came to be held directly from the crown
§ Henry VIII: Saw economic potential of feudal incidents à enacted the Statute of Uses (1536), and set up the Court of Wards and Liveries to collect them
·         Set up Statute of Wills: owners of fee simple estates had the power, the right, to will their land
§ New relationship between tenant & landlord: economic
·         Tenant now “owner;”personal relationship began to decline (key feature of feudalism); market economy began to develop
·         Black Death in 1349 – wiped out huge # of villain tenants
o   Hired labor became expensive
§ Statute of Labourers: landlords and employers attempted to freeze wages, but laws of supply and demand won out
§ Wages continued to rise
§ Feudalism NOT wiped out complete…still has continuations in the law
Tenure – Vertical relationship b/w tenant and lord; tenant owed lord various obligations…usually only refers to leasehold interests
Estate in Land – Horizontal idea; measured by time; gives you a right to possession (comes w/ all estates in land…an absolute component is the right to exclude 3rd parties, plus the right to use and enjoy the interest in land in a wide variety of ways, i.e. general usage of land)
-What is not possession? When you have an easement in land, a license in land, you do NOT have a right to possession
Easement: not a right to possession; may be granted to things like utility companies
License: lesser interest in land, doesn’t give possession
B. Fee simple (FS)
1. FS developed through growing trends toward heritability (will/devise) of land and free alienability (sale). Think of the rights of an estate as a “bundle of rights,” denoting legal relations btwn persons with respect to a thing. FS is as close to absolute ownership as our law recognizes.
2. Creation of FS: at early CL, “to A and his heirs.” Today, it is no longer necessary to put terms indicating inheritability in the conveyance to make it a FS; the default rule is that, absent words indicating otherwise, a whole conveyance is made. “to A” conveys a FS.
a. Words of limitation – “and his heirs” define the estate granted to “A.” Indicates what interest, what kind of estate X is being given in the land (fee simple, tail, leasehold, etc).
b. Words of purchase – “to A” identify A as the grantee. Does not necessarily mean that A paid money for the land. Words of purchase indicates the identity of the person who is being given the interest in the land
3. Inheritance of FS: under modern statutes of descent classes of heirs (persons who survive the decedent) are:
·         Heirs: Persons who sur

he owner’s creditors from reaching the property
(a) Alienation restraints are “repugnant to FS”
b. Alienation restraints:
(1) Disabling restraint – withholds from the grantee the power of transferring his interest (WHITE v BROWN) (eg O conveys blackacre “to A and his heirs but any transfer hereafter in any manner of an interest in blackacre shall be null and void.”)
(2) Forfeiture restraint – provides that if the grantee attempts to transfer his interest (O conveys blackacre “to A and his heirs, but if A attempts to transfer the property by any means whatsoever, then to B and her heirs.”)
(3) Promissory restraint – provides that the grantee promises not to transfer his interest (eg O conveys blackacre “to A and his heirs, and A promises for himself, his heirs, and his successors in interest that blackacre will not be transferred.”)
(a) Promissory restraints, if they are valid, are enforceable by K remedies of damages or injunction. Rare, except in L-T
c. Restatement §4 provides that an absolute restraint on a FS is void. Less stringently, R2d says that a partial restraint is valid if, under all the circumstances of the case, the restraint is found to be reasonable in purpose, effect and duration. 
d. For LE – R2d §4.1(1) provides that absolute disabling restraint is void, but a forfeiture restraint is valid 4.2(1).
(1) Policy justification is that forfeiture forces the LT to pay debts, whereas disabling restraints that allow the LT to not pay but keep the property, do not
e. Valuation of LE & Remainder – see p 197
2. Baker v Weedon (SC MI 1972)(Weedon’s will: “Wife Anna gets a possessory life estate, and upon her death to her children (CRFS-contingent upon their birth), and in the event she dies w/o issue to my grandchildren (CRFS-contingent upon wife having no children). Grandchildren find out about this property, and will not let her sell-property there is appreciating rapidly.) How does the court weigh the interests of life tenants and remainder? Deterioration and waste of the property is not the exclusive and ultimate test to be used in determining whether a sale of land affected by a future interest is proper (which the TC held), but also that consideration should be given to the question of whether a sale is necessary for the best interests of all the parties, that is the LT and the contingent remaindermen. Since selling the property to provide for Anna would cause great financial loss to remaindermen grandkids, property cannot be sold.
a. TC relied on law of waste – central idea is that A should not be able to use the property in a manner that unreasonably interferes with the expectations of B. It is designed to avoid uses of property that fail to maximize the property’s value. Law needed because the negotiations btwn LT and CR are locked into a bilateral monopoly making transx costs high
(1) Waste variables – nature of the property interests of the competing parties, conduct in question, remedy sought
(2) Baker v Weedon is case-in-point about tenuous future interests in the property – if AP has children, the grandchildren would not get the farm
(3) Typically, the greater A’s interests, the more freedom A has in using the property; correspondingly, the more tenuous B’s interests, the less protection given B.
(4) 2 waste categories
(a) Affirmative waste – arising from voluntary act – normally making major changes to a property that substantially reduce the property’s value
(i) Melms v PBR (WI 1899) – LT can make substantial alterations or even demolish a structure when conditions change, provided the value of the remainder is not diminished by these actions. This outcome is very likely if the LT has a long life expectancy
(b) Permissive waste – arising from failure to act – basically a negligence question; failing to take care of the property
(i) Kimbrough v Reed (ID 1997) – LT let water pump fall into disrepair with a resulting loss of lawn, shrubs, and trees; LT was assessed damages for waste
(ii) McIntyre v Scarbrough (GA 1996) – LT failure to pay real estate taxes is waste, resulting in forfeiture of the LE