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Property I
University of Connecticut School of Law
Utz, Stephen

Revised 12/3/06

Property Outline

Fundamentals of property

1. Acquisition of Property by Discovery and Capture
a. Acquisition by discovery
i. Johnson v. M’Intosh
1. The legal status of the de-recognition of the rights of indigenous people in North America is clearly the law of the US, although the legal ground is not clear.
2. Discovery once gave sovereigns, they thought, the right to deny individuals’ possessory rights in some contexts; no continuing discovery doctrine, though, probably.
3. At times of conquest or discovery, sovereigns have claimed the prerogative to confirm or deny the property rights of private citizens – both conquest and discovery are probably no longer regarded as good excuses at international law for property confiscation.
4. The US does not dispute the older law of discovery, perhaps beause it also does not dispute the older law of conquest; whether these are part of US constitutional or federal common law is not at all clear from the decision in this case.
5. The right of possession is not necessarily equivalent to title.
b. Acquisition by Capture
i. “First in time, first in right.” But priority of what? Here, we see priority of possession matters.
ii. Pierson v. Post
1. Possession of a wild animal requires unequivocal intention of seizing the animal plus at least depriving it of its liberty and continued pursuit.
2. Although possession is discussed as a purely objective element, the interpretation of that element seems to reflect policy conern for certain goals:
a. avoiding an affray
b. efficient resolution of disputes
c. investment and diligence
d. practice of an industry
e. fostering separate ownership
f. promoting exploitation
iii. Ghen v.Rich
1. Where the custom regarding ownership “embraces an entire business” and is of very limited application, the custommay re-define “possession”
2. Underlying policy concern for the balance of equities between the parties.
iv. Keeble v. Hickeringill
1. malicious interference with lawful trade may be alternative characterization of dispute over property
2. Ratione soli
a. refers to the conventional view that an owner of land has possession—Constructive possession—of wild animals and other unowned things on the owner’s land
c. Acquisition by creation; conversion
i. One who creates property owns it, but the scope of that ownership is not always clear.
ii. International News Service v. AP
1. Court finds a quasi-property right in intangible, intellectual property as between two competitors, though no property right against the general public once news stories were made public.
2. Pirating of news stories was “an unauthorized interference with the normal operation of complainant’s legitimate business.”
iii. Cheney Bros. v. Doris Silk Corp
1. If a designer cannot obtain a patent or copyright, it cannot recover for the copying of dress patterns by others.
iv. Moore v. Regents of The University of California
1. Moore could not sue in conversion because he had no property interest in his own cells.
2. public interest reasons
a. don’t want to stifle beneficial research
b. conversion is a strict liability tort and the spector of a conversion suit might dissuade researchers from undertaking important investigations
c. this is better left to legislature
v.­ Shack v. State: rights of title holder, otherwise entitled to possession with right to evict trespassers may give way to constitutional rights of assembly or e

cquisition by Adverse Possession
i. What is it? common law doctrine that gives all rights in land to long-term possessor other than titleholder whose ejectment action is barred by statute of limitations. Owner’s title may be said to be extinguished (some courts prefer not to use this characterization), and the “adverse possessor” effectively takes title instead. Suits in equity and self-help by original titleholder are not allowed
ii. Why?
1. protects innocent victims of defective title documents.
2. protects more innocent of two claimants when one of them could have protected himself and failed to do so.
3. The burden of watching your land is on the owner, and it’s very light—only once every 15 yrs (statute of limitations period), filing complaint if necessary.
4. cure formal defects in title and to establish a balance between the interests of long and short-term investment in land.
iii. Elements
1. actual entry onto and possession of land (must be exclusive)
2. possession must be open and notorious (like you were the true owner, using it as if it were your own)
3. possession must be continuous for the statutory period
4. possession must be adverse
iv. Van Valkenburgh v. Lutz
Title may vest in an adverse possessor who occupies the parcel under claim of right, protects the parcel with an enclosure, improves or cultivates the parcel, and maintains that state