Property I Outline

Acquisition by Discovery
 
Discovery refers to encountering something that has never been known before.
 
First in time, first in right
                Pros: Rewards effort, easy to enforce, loss aversion
                Cons: Overexploitation
 
 Johnson [Supreme Court] Facts: Plaintiff bought land from Indian tribe, M’Intosh obtained a land patent from the United States.
·         First in time to buy title from the United States government, who got it from England.
·         Lockean view that the Indians were not entitled to ownership because they were not mixing the land and labor.
·         Court recognized the settled expectations acknowledging that this is the way it has been done and that it would be too difficult to change.
·         Also, a racist and non-Christian dimension.
·         Vast majority of real property ownership today gets its strength from this case.
 
Acquisition by Capture
 
Pierson [Supreme Court of New York] Facts: Post chasing a fox through a vacant lot when Pierson intercepted the animal.
·         The majority says that obtain property rights in ferae naturae when exercise certain control over it.
o    Easier to enforce.
·         The minority says that obtain property rights when have a reasonable prospect of capturing the animal.
o    Destroy pernicious beasts.
 
Ghen [United States District Court, District of Massachusetts] Facts: Plaintiff sought and killed a whale with his bomb-lance, the next morning when it washed ashore it was recovered and sold by a different party.
·         The trade usage of affixing a mark of appropriation determined property rights.
·         This rule was developed because of the elusiveness of the whale.
·         In some scenarios the harpoon must remain attached, in some it does not, and in other jurisdictions the value may be split between harpooner and ultimate seizer.
·         Following norms can be efficient, but does not consider the interests outside of the group.
 
Keeble [Queen’s Bench] Facts: Keeble owned a pond outfitted with a duck trap to catch a large number of ducks, Hickeringill discharged firearms towards Keeble’s property to scare the ducks away.
·         “every man that hath property shall employ it for his pleasure and profit.”
·         “he that hinders another in that trade or livelihood is liable in an action for so hindering him.”
·         This is distinguished from simply competing
·         Landowner could have had constructive possession through ratione soli.
 
Wildgeese Case
·         Property is a bundle of rights; the government owned the geese but were not liable for them.
 
*Barry Bonds Baseball Case
 
 
Fugitive Resources
·         When wild resources escape property rights change.
Reinjection
·         If a resource is reinjected into the ground the property rights are maintained to encourage preservation.
Water
·         In West, rule of prior appropriation where first person to put to beneficial use has superior rights
·         In East, riparian rights where those along water source could use the water to whatever extent desired, subject to the rights of other riparians.
o    Linked to first in time because this is how the property would have originally been acquired.
* The point is that each resource has different characteristics requiring different treatment.
 
Acquisition by Find
 
Find means that there is a true owner.
 
Armory [King’s Bench] Facts: Armory found a jewel which he took to a goldsmith for appraisal. The goldsmith’s agent removed the gems and did not return them.
·         The title of the finder is good against all but the true owner.
 
Hannah [King’s Bench] Facts: A soldier staying at the defendant’s manor found a broach which he turned into the police. When the true owner could not be found the broach was given to the manor owner who sold it.
·         A man possesses everything that is attached to or under his land.
·         Does not necessarily possess a thing lying unattached on the surface.
o    Encourage others to find property.
·         However, if reside on property occupier will possess lost articles on the land.
·         If hired someone to do work on the house then it would belong to the owner because the worker would be an agent acting under the direction of the owner.
·         If the finder is a trespasser the authorities are split; either the trespasser has no claim or the owner’s right is superior unless the trespass was trivial.
 
McAvoy [Supreme Judicial Court of Massachusetts] Facts: McAvoy saw a pocketbook laying on a table in Medina’s barbershop. He gave it to Medina and after the true owner was not found demanded it.
·         When property is mislaid the true owner’s rights are superior to the owner of the premises whose rights are superior to the finder’s.
o    Creating circumstances most likely to return the property.
o    Inexpensive to administer.
 
Japanese Law
·         Criminally punish those who do not bring property to return stations.
·         Reward with a percentage of the worth for returning.
 
Types of Property
·         Abandoned: Original owner intentionally and voluntarily relinquished all rights.
o    Finder keeps, subject to rights of the premises owner.
·         Lost: Owner unintentionally and involuntarily parts with the property, and does not know where it is.
o    Finder’s rights depend upon the jurisdiction.
·         Mislaid: Owner voluntarily places property in a particular place intending to retain ownership, but fails to reclaim it or forgets where it is.
o    Finder acquires no right.
·         Treasure Trove: Intentionally concealed by an unknown owner for safekeeping.
o    Originally went to the king, but depending on the circumstances will now be treated like one of the other categories; most likely to award to landowner.
 
Acquisition by Adverse Possession
 
Requirements
1.       Actual Possession
a.       Use the property in the way a reasonable owner would.
2.       Exclusive Possession
a.       Possession must not be shared with the true owner or the general public.
3.       Open and Notorious
a.       Must be so visible and obvious that a reasonable owner would receive notice.
4.       Hostile
a.       Maine doctrine (aggressive trespasser standard): must be the intention of the adverse possessor to claim title to the land.
b.       Connecticut doctrine: the intention of the adverse possessor is irrelevant. Manillo
c.        Colorado law: requires good faith and has discretion to award damages.
d.       Alabama: requires good faith and color of title.
e.        When good faith is required, hostility must mean without permission.
5.       Continuous
a.       Possession must be those as a reasonable owner given the nature, location, and character of the property; fact intensive.
b.       Successive periods of adverse possession by persons in privity can be combined; tacking.
6.       For the duration of the statutory period
a.       Abandonment or interruption starts the statute of limitations over.
b.       If disabled (prison, mental, physical, age) then typically the statutory period is tolled.
c.        If property rights are split (life estate and remainder) the statutory period does not begin against the remainderman’s interest until the end of the life estate; however, if the statutory period begins before the life estate and remainder interests than it will continue to run once those rights are granted.
 
Van Valkenburgh [Court of Appeals of New York] Facts: The Lutz’s invested a substantial amount into the property and had a shed and garden on parts of the property, raised chickens and planted fruit trees.
·         Must pre