Property I
Acquisition by Discovery, Capture, and Creation
· Acquisition by Discovery:
o Discovery of land in America by a European power gives absolute title subject only to the Indian right of occupancy. Johnson v. M’Intosh
· Acquisition by Capture:
o In order to gain title to a wild animal, a hunter must either trap the animal or mortally wound it. Pierson v. Post
§ Exception: Title to a wild animal is acquired when a hunter apprehends the beast in accordance with custom. Ghen v. Rich
o The law wants to encourage the capture of wild animals.
§ Example: A person may not maliciously prevent another from capturing wild animals in the pursuit of his trade. Keeble v. Hickerongill
o Property rights, such as the right to capture wild animals, are adjusted so as to eliminate externalities. These changes in property rights promote a more efficient allocation of resources. Harold Demetz, Toward a Theory of Property Rights
· Acquisition by Creation:
o The law wants to encourage the efficient use of property by as many people as possible; consequently, not all creations are given legal protection. Unless the common law or the patent or copyright statutes give protection from appropriation, a persons property interest is limited to the chattels which embody his creation. Cheney Brothers v. Doris Silk Corp.
o Competition increases social welfare. Imitation increases competition. Therefore the law should not protect intangible property, but allow others to copy an inventors creation, only if this freedom to imitate does not destroy the incentive to create. Intellectual Property and the Legacy of International News Service v. Associated Press.
§ Example: If a company has a legal right to copy a competitors product, it may inform consumers that its product is equivalent to its’ competitors product. Smith v. Channel
o Excised body parts belong to the doctor removing them. Moore v. Regents of the University of California
o Punitive damages may be awarded for intentional trespass to land. Jacque v. Steenberg
o Property rights may not be exercised so as to endanger the well being of others. State v. Shack.
Acquisition of Property by Find, Adverse Possession, and Gift
· Definitions:
o Real Property: is defined as land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to land.
o Fixtures: personal property that has been attached to real property and that is regarded as an irremovable part of real property.
o Person Property (Chattel): Any movable or intangible thing that is subject to ownership and not classified as real property.
Gifts
· Gifts: the voluntary transfer of property without any consideration.
o Requirements for Gift of A Chattel:
§ The donor must intend to make the gift.
§ The donor must deliver the chattel to the donee (there are substitutes for manual delivery)
§ The donee must accept the chattel
o 2 Types of Gifts:
§ inter vivos: a gift made within the donor’s lifetime (between living people). Once the gift is made, it is irrevocable.
§ Testamentary: a gift made by will (devise, bequest) effective upon death.
Bailments
· Bailments: the rightful owner (bailor) gives possession to another (bailee) who then has rightful possession. The rightful possession of goods by one who is not the owner. (“a bailment arises” ex. dry cleaning, valet parking)
o Elements of Bailment:
§ Bailee must assume actual physical control of the object.
§ Bailee must have the intent to possess.
o Duties of the Bailee:
§ Bailment for the sole benefit of the bailee – the bailee is liable for slight negligence (high standard) ex. borrowing something.
§ Bailment for the mutual benefit of bailor and bailee – ordinary negligence standard (reasonable person) ex. business bailment.
§ Bailment for the sole benefit of the bailor (gratuitous bailment) – bailee is liable for gross negligence (low standard) ex. ask someone to watch your pet while on vacation.
o Misdelivery:
§ When the bailee gives the bailor’s property to a third person without the bailor’s permission.
§ The liability for misdelivery is absolute, strict liability.
o Actual Possession: direct and physical control over something.
o Constructive Possession: exercising control over something while it is not in his actual possession (a legal fiction).
o Trend is towards treating all bailments as mutual benefit bailments.
o Generally it does not matter when the bailee knows about the value of the chattel
o Bailee’s can contractually limit their liability, but cannot contract to avoid responsibility for gross negligence (ex. sign outside parking lot).
Acquisition By Find
· Definitions:
o Possession: is the fact of having or holding possession of property in one’s power, the exercise of dominion over the property. The right under which one may exercise control over subject to the exclusion of all others. The continuing exercise of a claim to the exclusive use of material object.
o Ownership: is the collection of rights allowed one to use and enjoy, including the right to convey it to another. It implied the right to possess a thing, regardless of any actual or constructive control. The rights are general permanent and inheritable.
o Custody: is the care and control of a thing or person for inspection, preservation or security.
o Title: the union of all three of the above elements constituting the legal right to control and dispose of property. It is the legal link between a person who owns property and the property itself. It is legal evidence of a person’s ownership rights in property.
o Lost Property: is property, which the owner involuntarily has parted through neglect, carelessness or inadvertence.
o Mislaid Property: is property, which
must be hostile to the owners rights, permission undercuts hostility and stops the running of the statute of limitations.
· Objective View — state of mind of the adverse possessor is irrelevant (American view – easier to prove)
· Good Faith Standard (the innocent trespass standard) — the adverse possessor must have thought he owned the property when he took possession (“I though I owned it”).
· Aggressive Trespass Standard — under which the adverse possessor knows he does not own the property but intends to make it his, or at least stay unless a better owner forces him to leave (“I know I did not own it and intended to take it”).
§ Continuous possession for the statutory time limit: only the degree of occupancy and use that the average owner would make of a particular type of property.
· Seasonal use is acceptable if the reasonable owner would use it in that way.
· If an adverse possessor abandons a piece of property continuity of adverse possession is lost.
o NY Rule: To acquire title by adverse possession, possession must be actual and under claim of title, and the land must either be enclosed or sufficiently improved. Van Valkenburgh v. Lutz.
o Color of Title:
§ Refers to a claim founded on a written instrument (a deed or will) or a judgment or decree, which is for some reason defective and invalid.
§ If you are granted an entire parcel of land by a deed and the description of the land is defective in some way, you are deemed to only actually possess the parcel described in the deed.
§ You would be deemed to be in constructive possession of the entire parcel.
o Claim of Title:
§ A claim of right that meets the hostility requirement of adverse possession.
o Boundary Disputes:
§ Adverse possession cases often involve border disputes. Adverse possession must be open and notorious enough to give the true landowner notice. In the case of minor encroachments the court will not presume notice; the landowner must have actual knowledge of the encroachment. Manillo v. Gorski
§ Courts also use the doctrines of agreed boundaries, acquiescence, and estoppel to address cases of mistaken boundaries:
· Where neighbors are uncertain about a boundary line, their oral agreement as to the boundary will be enforceable if they accept it for a long time.
