PROPERTY OUTLINE (DURHAM)
Court has two powers
· Award damages
· Order party to engage in an action or not to engage in an action
Appeal is by right and by permission
· First time is by right and the rest are usually by permission
· Ohio Supreme Court is by permission only except in death cases
Dismissed without prejudice – can pick another writ and try again
Dismissed with prejudice – you are done with not further course of action on the same case
Race judicator – can not go before court with same facts and try with a different writ
A party can only convey what he has and nothing more.
Law’s presumption – heirs have rights to hereditaments descending.
Constructive possession – authority over land by color of title.
· For legal purposes to pretend the person has possession to further policy.
Ejectment is based on title
· An owner of land has a cause of action against anyone wrongly possessing the land.
· P shows title and D shows what’s wrong with it
· Two ways to defend
· Show what’s wrong with P’s title or
· Show that the D had title
· Title overrides possession
· If you prove that one has peaceable possession, there can’t be two possessors at the same time.
Presumption shifts the burden of proof
Always ask what will the majority’s rule do if we win?
Possession
· Pursuit is not enough
· Occupancy and exercise of domain over property
· Exercise of dominion over land even without residence there on
· A holding of land legally by one’s self or through another such as a lessee, under title, estate or interest of any kind.
Presumption
· Rule of law that attaches definite probative value to specific facts
· Draws a particular inference as to the existence at one fact, not actually known, arising from its usual connection with other particular facts which are known or proven.
Constructive possession
· Possession which the law annexes to the title
· Som
rson knows or could have known of the possession
· A discernable several feet
· Actual knowledge is important
· Possessor must act in a sufficiently public way towards the property to let the average owner know that they were there if they checked.
· Hostile
· Does not refer to the subjective mental states of owner or possessor and does not imply that there must be animosity
· Enters without permission claiming against the world
· Permission from the actual owner voids this element
· Tenants, joint tenants, tenants in common
· Permission can turn into adverse if the possessor asserts a right and the owner knows of the assertion
· Iowa
· Has to come with a color of title or claim of right
· Maine Doctrine
Requires intent
