I. First Possession
Terms
1. Property- the exclusive right someone has to possess, use, enjoy, and dispose of anything he owns. These are the bundle of legal rights and responsibilities that accompany a given object including duties, titles, rights, and responsibilities. Two types of property:
a. Real Property- land and realty
b. Personal Property- Chattel (readily moveable objects)
2. Possession- involves an assertion of a right to exercise dominion and control. Two kinds of Possession:
a. Actual Possession- direct and physical control over something
b. Constructive Possession- exercising control over something while it is not in his actual possession (a legal fiction).
3. Occupy- just being on the land
4. Ownership-when a person has title to property. Someone can own property without having possession.
5. Alienate- to transfer or convey title to property
6. Inalienable- not capable of being transferred or taken away
Acquisition by Discovery- Entails the sighting or finding of unknown or unchartered territory.
1. Johnson v. Macintosh- Conquest gives title to the conqueror. The discovery of the occupied Indian lands of this nation vested absolute title in the discoverers, and the Indians were incapable of transferring absolute title to others.
Acquisition by Capture-If captured, the wild animal belongs to the captor however, the wild animal does not become possession of control until it is: mortally wounded, killed, or captured so that escape is impossible.
1. Ratione Soli- by reason of ownership of the soil you have rights to acquisition of the animal
2. One losses their rights in wild animals when they regain their natural liberty unless animal exhibits animum revertendi- habit of returning.
3. Pierson v. Post- Being in pursuit of fox does not amount to occupancy.
4. Ghen v. Rich- Court held that usage of marking a whale to recover later is valid and did constitute an occupancy in the whale. P had done all the practical measures to secure the whale. Custom can be enforced when it meets certain conditions.
5. Keeble v. Hickeringill- Court held that when a violent, or malicious act is done to a man’s occupation, profession, or way of getting a livelihood, then an action lies in all cases. Invisible Hand Theory- the desire to enrich oneself, which will benefit society as a whole (Adam Smith)
6. Natural Resources- Takes on same rules as wild animals, belong to the owner of the property there are on until they leave/escape.
Acquisition by Creation-Any expenditure of mental or physical efforts as the result of which there is created an entity, whether tangible or intangible, vests in the person who brought the entity into being, a proprietary right to the commercial exploitation of that entity, which rt is separate and independent from the ownership of that entity.
1. Cheney Brothers v. Doris Silk Corp.- Court refused to establish a right to protection, refused to apply precedent INS case, b/c in contrast with the legal policy-patent laws are the domain of Congress, not the courts.
2. Moore v. Regents of the University of California- Court held a person whose tissue is used for profitable research and development w/o his knowledge may not maintain a conversion action.
3. Jacque v. Steinberg Homes Inc- Right to exclude others from his-her land is ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.’
4. State v. Shack- Real property rights are not absolute, and necessity, public or private, may justify entry upon the lands of another.
II. Subsequent Possession
General Terms
1. Trover- a common law action seeking damages
2. Replevin- a common law action seeking the return of an item
3. Bailment- the rightful possession of goods by one who is not the owner. It arises when goods are entrusted to another for some limited purpose or when someone finds goods (i.e. coat check)
a. Bailor- one who gives the goods to another to be held (coat owner)
b. Bailee- one to whom the goods are entrusted (coat check person)
Acquisition by Find-Something is already owned by someone and another subsequently comes into possession w/o the owners consent.
1. Law of Finders
a. an owner of property does not lose title b/c he lost it
b. the finder of i
ninterrupted use of land – possession must be uninterrupted for the statutorily prescribed time (NY-10 years, CL- 20 years).
b. Open and Notorious – presence must give owner reasonable notice so he can defend his rights, so it has to be open and visible occupation. Notice to the world.
c. Actual Entry – entry must be real, physical presence which will then start the statute of limitations running.
d. Claim of Right – possessor must indicate by words and actions that he holds the land as against the whole world. (NY calls it “claim of title”)
e. Hostility – the possessor must not have true owner’s permission to be there. It must be adverse
3. Rationale- penalizing those who fail to do something to stop their property from being taken in a timely fashion
4. Tolling/ Disabilities: SL in which an owner of property may bring an action against an adverse possessor is extended in the event the owner is under a disability. Limited to that point of time, that owner and that disability.
5. Color of Title- a claim founded on a written instrument (deed) or a judgment or decree that is for some reason defective and invalid. Mere appearance or semblance (outward appearance) of good title. Some states require this as an element for adverse possession
a. gives you the potential of getting more land than you actual occupy
6. Tacking- the act of adding one’s own period of land possession voluntarily to that of a prior possessor in order to establish continuous adverse possession for the statutory period. Separate periods of actual possession by those holding hostility to the owner can be tacked together provided there is Privity of Estate (mutual or successive relation to the same right in property).
