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Property I
University of Connecticut School of Law
Paul, Jeremy R.

Possession has two elements:
1. an intent to possess on the part of the possessor; and
2. actual controlling or holding of the property
both intent and control elements must be present to acquire rights of a possessor; does not need to be actual possession
proving ownership is difficult so rely on possession
relativity of title
idea that a person can have a relatively better title or right to possession than another
first in time/first in right:
prioritizes several individuals’ rights based on time of acquisition
the chronologically first possessor has the better title
Pierson v. Post: Post pursued a fox when Pierson, fully aware that Post was chasing the fox, killed it himself. Court held that Pierson was the true owner, because he had been the first to actually kill or capture the fox
common law capture rule, property rights in such animals are acquired only through physical possession. The first person to kill or capture a wild animal acquires title to it. (first in right)
Post lacked the second element: hold/occupancy
Dissent argue for “constructive possession”: Post’s pursuit gave him a right to possession that was not yet actual possession (pro investor) à US courts reject this rule
Majority: rule that is clear, keeps down litigation, easy to administer (pro competitor)
Popov v. Hayashi: ball, first had pre-possessory interest in ball, 2nd caught it, so both had equal interest, divide value
Oil and Gas
surface owner does not necessarily own the subsurface oil and gas; in some states, oil generally belongs to the first person to “capture” it through extraction = first in time rule
lateral drilling is a trespass
taking of gas from pool must be reasonable
Elliff v Texon Drilling Co. (83): Texon drained gas from under Elliff’s land. T argued law & capture, E negligence. Court says negligent destruction & waste of gas and oil will permit recovery cuz owner deprived of his rights in property. Rule of capture trumps ownership but it was wasted in this case.
Copyright Law
Only original expressions of ideas can be protected by copyright law
Feist Publications, Inc. v. Rural Telephone Service Co., Inc. (1095): R sued F for copyright infringement bc F used info contained in Rural’s white pages in its own directory. Facts are not protected bc not original. Rural’s facts were not selected, coordinated, or arranged in any original way
Labor and Investment
International News Service v Associated Press(32): Competitor D (INS) collected news posted by the Ps on bulletin boards & newspapers and then reproduced these news as their own work. This misappropriate sufficient to justify an injunction again INS until the commercial value of the stories dissipated.
Courts want incentive so stop unfair competition
Relationship of parties important in this case; this is a quasi property
Work and Family
Upton v Jwp Businessland (53): ER discharges EE bc unable to work hours, sues stating against public policy. Court says this is a new rule, not an old rule applied to new facts so unwilling to make a new rule
Transfer: Relativity of Title
Tapscott v. Lessee Of Cobbs (97): case where title lost but law presumed that heir was in possession thus D merely an intruder. D Tapscott contented Ps had no proof of possession of land, Ps claimed that D had no proof that they were not in possession
Color of title: your claim to ownership is not based on simply that you live there, have document as proof , although doc is faulty
This case is the exception:  the law protects peaceful possession of land
When can you bring title claim when you don’t have title?
Peaceful possession
Times when there is a defect of title
Relations of parties (title of 3rd party): you don’t really own it, even though you though you had ownership because false title
Relativity of title (Cobbs interest better than Tapscott)
Other Informal Ways to Transfer Title to Real Property: Improving Trespasser
Improving Trespasser: when someone mistakenly invest a lot of money in building a structure that encroaches on a neighbor’s property:
if the structure decreases the value of the neighboring property, the owner ordinarily wishes it to be removed, courts apply the relative hardship doctrine
If the encroachment is innocent (mistake) the harm minimal, the interference in the true owner’s property interests small, and the costs of removal substantial, the courts often refuse to grant an injunction ordering removal of the structure
Removal of the encroaching structure is ordinarily ordered if the builder knowingly built on neighboring property
When an entire structure is built on land belonging to another, ordinarily, courts hold that the structure belongs to the owner of the land
if the structure improves the value: courts generally hold that landowner had a right to keep
Somerville v. Jacobs (218):Somerville neighbors brought action for equitable relief against the property owners on whose land they mistakenly constructed a building. Erected building due to a factual mistake by surveyor & property owners did not discover error until completed. Court awarded compensation to prevent unjust enrichment
Rule: one who is innocent constructor of building on land of another will be protected
Rationale: apply what ancient writers did “our hands are tied”; Public policy
Dissent: contrary to law, landowner having been entirely without fault should not be forced to purchase the building
adverse possession doctrine transforms trespassers (who use property for a statutorily determined period of time) into owners and thus defeats all rights of its true/rightful owner
why the doctrine? Reward users. Punish sleepers (encourage monitoring). Impose duties. Prevent waste. Protect reliance. Provide security of title. Facilitates efficient transfer of property. Evidence.
adverse possessor must prove that the adverse possession met each of the common law elements:
1)      actual possession:
must be actual possession of property cuz gives notice to true owner, acts as trigger for true owner’s cause of action
color of title: adverse possessor claims ownership pursuant to a written doc which is defective. Benefits them because: statute of limitations reduced, if tract of land and color then deemed constructive possession
2)      open and notorious:  use of the property is so visible and apparent that it gives notice to the true owner of an adverse title claim
3)      exclusive: the adverse possessor holds the land to the exclusion of the true owner
4)      hostile or adverse: three theories
majority view: ap uses the occupied property without the true owner’s permission
minority view/bad faith/intentional trespass view: look a the possessor’s state of mind to ensure intention à limited jurisdictions hold that mistaken possession does not constitute hostility ?
good faith view: if mistaken then must believe in good faith that he owns title to the land
5)      continuous possession for the entire limitations period
6)      for the statutory period (diff in each state)
§         some courts add other elements: claim of title/claim of rights, good faith or bad faith, improvement/cultivation/enclosure, payment of property taxes
adverse possessor can eject trespassers & adverse possessors as long as entered property first
ap may also sell or give his interest to another (privity) which also gives the time the first possessor occupied.
Tacking: the adding of time the first possessor used to the tiem second used
privity: occurs by contract of sale, gift, will or other inheritance
Border Disputes
Brown v. Gobble (179): Brown owners filed an action against D adverse possessors seeking to prevent D from interfering with the putative owners’ use of the property. P given notice their land within D’s fence but did nothing until 5 yrs later. D claimed title by tacking, TC erred in considering it.
Possessors must prove with clear and convincing standard of proof
Color of Title
Romero v. Garcia (185): Romero action to quiet title based on adverse possession under color of title and the payment of taxes against Garcia. Granted, deed sufficient even tho failed to describe land adequately
Nome 2000 v. Fagerstrom (187): title holder (Nome) filed suit to eject the adverse possessors from the disputed parcel. AP established, by clear and convincing evidence, continuous, notorious, and exclusive possession but not entitled to the entire disputed parcel because their use of the southerly portion of the disputed parcel did not provide a reasonably diligent owner with visible evidence of their exercise of dominion and control.
continuous possession: does not mean there all the time 24/7 but the way a normal owner would utilize the property
Prescriptive Easements
Doctrine of adverse possession actually allows a non-owner to take title of the property. The doctrine of prescriptive easement has the same elements but doesn’t actually transfer title, just permission to use
easements are limited rights to use the property of another
the elements for establishing a prescriptive easement are the same as those for adverse possession except that the claimant must show adverse use rather than adverse possession
Community Feed Store, Inc. v. Northeastern Cultvert Corp. (207) P claimed prescriptive easement over a portion of D’s land. Record supported a conclusion that the corporate landowner used the property in an open, notorious, continuous, and adverse manner for more than 15 years.
Local 1330, United Steel Workers Of America v. US Steel Corporation (55):Union sued to enjoin corp from closing, or selling to town, however union failed to provide any legal basis. P stated that since town built around mill the town a

herance of the public welfare related to its public characteristics. The practices of D not furthering any public good. 
court is asking whether to extend public trust doctrine (exception to owner’s land) to this area?
Theory of public trust doctrine is that there are some things too important for everyday commerce
Leydon v. Town Of Greenwich(Online): Leydon sought declaratory and injunctive relief to prohibit the enforcement of a town ordinance limiting access to town park to residents. Only declaratory granted. Prohibited based on the federal and state constitutional guarantees of freedom of expression and freedom of association. Clear park qualified for 1st A. Could not bar individual solely cuz a nonresident cuz park a public forum. Not justified in tailored to meet a compelling need
decision was not based under public trust, or common law trespass doctrine but under 1st A
beach is similar to a park and in a park must let ppl in to express their 1st A rights
in these type of public forums, rights of free speech are a lot greater
Courts have relied on 3 common law doctrines besides public trust to grant right of access to beaches by the general public
dedication: involves a gift of real property from a private owner to the public at large; requires an offer by the owner and acceptance by the public
prescription: if the public used property possessed by another for a particular purpose for a long time, the public can acquire such rights permanently (easement)
Nuisance law provides remedies for conduct causing unreasonable harm to use & enjoyment of land
Elements: substantial and unreasonable interference with the use or enjoyment of land
Some state’s require an invasion as an essential element, others do not
Determining Unreasonable:
Focus on rights or fairness, or social utility or welfare analysis
§         social utility of conduct: primary purpose of conduct, suitability of conduct to character of locality, impractability of preventing or avoiding invasion
§         fairness factors: (1) character of harm (aesthetic less than health or safety concerns)          (2) distributive spreading cost considerations (3) fault: disfavored activity, appropriate for area, P came to it
o        a harm not nuisance because the harmful activity was established first: when P comes to the nuisance, one can argue that she created the problem herself
§         welfare factors: (1) cost/benefit of allowing v. prohibiting (2) incentives (3) lowest cost avoider: who can do it cheapest
Remedies (280):
Dismissal of the complaint; Damages; Injunction: ordering D to do or not do certain specified acts; Purchased injunction: conditional injunction ordering the activity stopped on the condition that P reimburses D
over time violators economically viable and thus nuisances valuable so damages replaced injunctions
injunction appropriate if the harm to P outweighs the social utility of D’s conduct
damages seem appropriate where D provides significant social utility
D can escape an injunction only if the social utility of D’s primary activity benefits the public at large rather than merely benefiting D personally
Courts resolve land use conflicts in four basic ways:
D’s privilege: freedom to act despite the harm: P had failed to state a claim upon which relief can be granted; thus P has no legal right to protection from D’s harmful activity
P’s security: strict liability or absolute right to be free from the harm (veto rights)
Reasonableness test: middle position that authorizes D to engage in harmful activity if it is deemed to be reasonable but not if the conduct and/or the harm caused by it is deemed unreasonable à requires the decision maker to make a moral or policy judgment
Prior use: prior appropriation or prescription: grants a right to commit the harmful activity to the person who first established her use