Property Outline
First Possession: Acquisition of Property by Discovery, Capture, and Creation
Acquisition by Discovery
A. Possession
1. Physical control and intent to exclude others
2. Or conclusion by a court that person is in possession, ought to be treated as possessor
3. Distinguished from ownership – owner has “title,” usually proved by document signed by previous owner or 1st possessor transferring title to present owner.
· First in time (back in the day)
o Rule of Discovery: first to see the land or chart it, has title to it
§ The government gets it if the individual was working on behalf of the government
§ Indians do NOT get title to land
o Title by Conquest
o Johnson v. M’Intosh
· Policy Arguments
o Encourages exploration and use of resources
· Counter Policy Arguments
o It would be hard to determine who was there first
Acquisition by Capture
· Capture
o Mere pursuit is not good enough, must have mortal wounding and continued pursuit to ensure capture is certain
o Constructive Possession: law treats person as possessor though he is not, or is unaware that he is.
o Pierson v. Post
§ Policy Argument
· Supports killing pesky animals
· Simple rule that is easy and inexpensive to follow (not ambiguous)
§ Counter Policy Argument
· Reward labor—who would pursue animals and do all the hard work if they did not get ownership and somebody else did
· Subject to trade custom (the impact of the rule on society or the economy)
o Ghen v. Rich
§ Policy Argument
· Keep with the custom of the town, Keep the industry alive/profitable
· Reward labor
§ Counter Policy
· Times change
· Goes against the rule of capture because there is no continued pursuit
o One cannot disturb or maliciously interfere with another in his trade or livelihood
§ You own wild animals that are on your land
o Keeble v. Hickeringill
§ Policy
· The market is harmed if we let people go around and infringe on others’ lively hood
· We do not want to reward malicious behavior
§ Counter Policy
· Better competition in the market
· Capture of Natural Resources: Oil, Gas, Water
o When sharing a natural resource, first to capture gets title (you only have title when it is on your land)
Acquisition by Creation
· When one invests time and resources into creation, you can prevent others from copying it until its commercial value has passed away
o INS v. AP
§ Policy Argument
o No one will bother to report/gather the news if anyone can
§ Counter Policy
o Hurts the public for there to be a property interest in the news
o Common access to the truth and facts, do not want it to be monopolized by one party
· A man’s property is only limited to what he creates, others are able to imitate his property freely
o Cheney v. Doris Silk Corp.
§ Policy
· Reward innovation and competition
· More people get scarves at a cheaper price
§ Counter Policy
· People will not invest time and money to design scarves (no creative incentive)
· No property rights in cell’s excised during surgery
o Doctrine of Accession: even if someone converts your property, if in the process of treating it as theirs, and they add value to it, you are not going to get all of that value
o Moore v. Regents
Acquisition by Find
· Finder has the right to keep property over all but the true owner
· If you abandon property, you give up title
o Armory v. Delamirie
§ Policy
· Big business would take advantage of the little people
· Reward labor
· The claim is stronger when things are attached (on, under) to your property, for constructive possession
· Finder of lost chattel has superior title to the owner of the land, if item is not attached and not acting as an agent of the owner of the land
o Hannah v. Peel
§ Policy
· Reward labor
§ Counter
· Anyone could come into your home and claim they found something
· If property is intentionally placed and forgotten it is MISLAID
o In cases of mislaid property, both the true owner and the owner of the premises have rights superior to that of the finder
§ The owner of the premises has superior title to all except the true owner
o McAvoy v. Medina
§ Policy
· We want the true owner to gain possession which is why they kept it in a shop
§ Counter
· How long does the store owner have to keep it before the true owner returns
Acquisition by Adverse Possession
· Requirements:
o 1) exclusive, actual possession
§ Possession not exclusive where other people are using property
§ If given permission by the owner, this strikes down adverse possession because it is not actual or exclusive
§ If you see someone and they say they don’t need your permission you better sue within the statutory period (this helps establish hostility)
· Ex. no trespassing sign (solidifies trespassing claim)
o 2) open and notorious (visible)
§ Use must be sufficient to put true owner on notice (constructive knowledge)
§ Minor border encroachments require ACTUAL knowledge by true owner
o Mannillo v. Gorski
o 3) continuous and uninterrupted (for a statutory period)
§ The degree of occupancy and the use that the average owner would make of a particular type of property
· Example: seasonal use (a summer house)
§ Tacking: time in possession of successive adverse possessor may be added together to fulfill the statutory perio
it’s not present it is not possible)
1. We require it unless it’s not possible
b. Constructive
i. Delivery of something that provides access to the gift or control of the gift
ii. Ex. Key, remote control, combination to a lock
c. Symbolic
i. Pictures – don’t give you control (the key is only symbolic and constructive of the box) (the box itself is symbolic, the contents are constructive)
3. Acceptance
a. Presumed/Assumed (a rebuttable presumption)
i. presumptions are efficient, and people generally accept gifts
ii. Why would we let you not accept a gift?
1. Ex. You are given a house (but you’d have to pay mortgage, taxes, etc.)
2. We don’t force property on people
B. Other Stuff
· Acceptance- Rebuttable Presumption/Assumed
o Efficient, Generally correct
o Why would you not want a gift? Obligations you don’t might not want to take it.
o Don’t force property on the people
· Intent
o avoid accidents by the true owner
o Avoiding fraud
o subjective, time consuming
o gifts left in a will (difficult) decedent’s dead
· Delivery
o Actual-final, obvious, complete if it’s possible to deliver it then you have to deliver it
o Constructive-delivery of something that provides access to the gift or control of the gift (NOT SYMBOLIC OF THE THING BEING GIFTED)
o Symbolic-Pictures, don’t give you any control. Picture or anything we argued about that’s constructive
· Seisin-delivered a piece of the land (symbolic) actually handing it over, the giver felt the loss of the land the person accepted it was very clear, open, notorious, efficient and clear.
· Will is not effective until you die but is a type of gift
· Circumstances under which the gift was made:
o Donation Causa Mortis
§ A gift motivated by the onset of death
§ Typically, the problem with this type of gift is that the person might not die
§ Gifts of this nature are revocable
