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Property II
University of Georgia School of Law
Smith, Paul

I. Possession and Sovereignty
                A. Rightful Possessors of Land: interests that are recognized and protected by the State (Felix Cohen)
1.  Right of Occupancy/Possession – the occupant doesn’t own the land, but can use, include, or exclude others from it as they see fit
                                a. possession is just one stick in the bundle of property rights/legally protected interests
                b. mere possessors do not have right to convey absolute title of land (Johnson v. M’Intosh)
2. Title vs. Right to Occupancy/Possession
a. Title: in real property formal right of ownership of property; one who holds vested (completed/legal effective) rights in property is said to have title
b. Right to Occupancy/Possession: extinguished by purchase or conquest (imperialism), gives owner right against all except true owner.
c. Difference: one can own the title and another can possess it ex. Landlord/Tenant in apartment situation
3. History, Discovery, and Sovereignty: The Johnson v. M’Intosh court held that the Indians only possessed a right of occupancy, which they could only sell to the US government. The US held greater rights of title to the land by way of discovery.
                                                a. Discovery and Labor Theory:
i. Definition: Discovering sovereign obtains title to land, gains ownership by improving it and making it economically productive; Indians did not own title because the land was still a wilderness
ii. Labor Theory vs. First in Time: Indians were first, but because they didn’t put the land to use, thus they had not acquired title
b. Other themes:
i. Advantages to future buyers: protect settled expectations, uniform record of ownership, clear chain of title, accurate records
ii. Advantages to Tribes: protected from fraud, protected from people taking advantage of their ignorance of European laws
iii. Criticisms: no competition and Indians could possibly have gotten higher price, government could force them to sell
B. Wrongful Possessors of Land: situations, such as trespass or adverse possession, in which the sovereign offers a legal remedy for the true owner (trespass) or the wrongful possessor (adverse possession)
II. Trespass and the Right to Exclude: possessory rights, in order to be meaningful, include the right to exclude others.
                A. Trespass to land: protects right to exclude others from property (protects possession)
1. Definition: Action for any forcible interference w/ P’s exclusive possession of land
§ Utility of ∆’s Conduct (Bright Line Test) -> not really taken into acct, doesn’t matter if ∆’s conduct has great utility
a. P can sue for decrease in value of land / damaged property on the land.
b. can sue for nominal damages even if no injury can be proven (need NOT prove ACTUAL harm à its presumed)
    i. which could still support a punitive damage award
2. Elements:
a. direct entry onto land (utility of conduct does not matter)
i. Restatement: knowledge of substantial certainty of immediate intrusion is enough, even if by indirect means
b. that is unauthorized by landowner (cross of boundary line)
c. by a tangible object
i. traditional: intrusion must be by a tangible object. dust, smoke, noise, vibrations are not tangible. Further, they enter land indirectly by some intervening force such as wind or water.
ii. modern: tangible object requirement is eliminated, direct intrusion requirement is of reduced importance.
                                3. Damages: trespass presumes an automatic award of nominal damages.
                                                a. Nominal Damages: actual damages need not be shown
b. Compensatory Damages: If proven, actual compensatory damages may be awarded
i. includes damages for destruction of crops or deterioration of land, etc
ii. also includes deprivation of value of license to enter
                                                c. Putative Damages:  
i. Barnard Rule: one many not recover putative damages unless there are actual damages.
Critique: implicitly tells trespassers that they are free to go wherever they wish as long as they do not cause actual damages.
ii. Nominal Damage Rule: for intentional trespasses, putative (punitive) damages may be awarded at the discretion of the jury when the plaintiff can prove ONLY nominal damages.
Reasoning: The actual harm is not in the damage done to the land, which may be minimal and normally intangible, but in the loss of the individual’s right to exclude others from his or her property. intentional trespass causes actual harm to the landowner, regardless whether that harm can be measured in dollars
                Policy: deters trespass, prevents self-help protection of right to exclude
                B. Nuisance: protects right to enjoy/noninterference of use of property (π MUST prove SUBSTANTIAL harm)
1. ELEMENTS:
                a. entry onto land, direct or indirect
                b. that is unauthorized by the landowner
c. actual and substantial injury results
d. conduct must be unreasonable: ex, plaintiff can prove preponderance of disturbance over social utility of conduct
§ Nature of INTERFERENCE -> unreasonable conduct (could have intervening causes)
§ Utility of ∆’s conduct (Balancing Test) -> matters whether the utility of ∆’s conduct outweighs the harm caused
C. Trespass can’t conflict w/ Free Speech (Watchtower)
                                1. Exception to the rule that the government protects the right to exclude.
2. Rule: a public organization (government, homeowners assn.) may only pass rules to exclude others if they are narrowly tailored to serve a particular interest (for example, crime prevention).
                a. probably not ok to require a permit for broad purpose activities
                b. an individual’s right to exclude is still recognized (for example, no trespassing signs)
D. Trespass to Chattels: occurs through either dispossession of a chattel or intermeddling with a chattel that is in the possession of another.
                Two Factors:
                                1) physical contact à includes going to a website/ domain name isn’t a chattel itself
                                2) possessory interest in actual physical chattel à can’t be licensee
                1. Intermeddling: intentionally bringing about physical contact with the chattel.
a. may be achieved directly, or indirectly, or through a third person by way of fraud or duress to intermeddle with another’s chattel.
x. appropriation of fraud or duress is the instrumentality of the trespasser, not the one making physical contact.
                                2.

         3) whether registering the paintings with the ADAA would put a reasonably prudent purchaser of art on constructive notice that someone other than the possessor was the TO
§ TO has burden of proving he used DD and that the SoL should be tolled
§ Value matters in the determination -> the greater the value, the more DD one must undertake in order to be considered reasonable
§ So does the Nature of the property
o    Demand and Refusal Rule (NY rule) – AP’s possession of chattel is NOT wrongful UNTIL the TO demands its return and the possessor refuses
C.      Open and notorious. Acts must provide reasonable notice to TO of AP through visible acts
1.       i.e. Acts that look like typical acts of an owner (as observed by community).
2.       Open à no intent by APer to conceal or hide his activities
3.       Notorious à some level of community awareness of the APers actions
D.      Hostile/Adverse and under a Claim of Right. Possession must be w/out owner’s consent/permission.
1.       Objective Test (Connecticut Rule) [Majority Rule] – actions of possessor are what matter; need to look like the owner. AP’s state of mind is unimportant. Mistake is irrelevant.
a.Must look like AP to community even if there is no actual claim to title. Important is occupying land w/out permission.
b.even if you say you aren’t making a claim if you are acting as an owner and possessing w/out permission you are legally AP.
2.       Subjective Test (Maine Doctrine) [Minority Rule] – Requires INTENT to possess the land, so if person is acting in good faith then they actually FAIL to get AP
a.mistaken belief –minority of states hold that if possessor mistakenly believes he has title but would not claim title if he knew then NO AP (EX: boundary disputes)
1.       ∆ must have the INTENTION to invade and not merely be MISTAKEN as to the boundary line
b.criticism: subjective test encourages honest neighbors to allow. objective test is cheaper to administer and more reliable than subjective.
c. Makes it easier to prevail if AP subjectively believes they are taking the property wrongfully.
d.The Maine rule seems to encourage the hostility of the intentional wrongdoer while disfavoring an honest, mistaken entrant
e. The Maine rule also encourages self-serving testimony by the person claiming hostile intent
3.       Claim of Right – mistake is consistent with a good faith claim of right
4.       Color of Title – claim founded on written instrument which is defective and invalid.
a.not required in most states
b.note: distinguish color of title (claim based on written instrument) from claim of title (belief in title, used to express necessary adversity).