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Property II
University of Georgia School of Law
Smith, James C.

Property II
Outline
Smith 2009

I. PROTECTING POSSESSION
A. POSSESSION & SOVEREIGNTY
1. Johnson v. M’Intosh:
a) Facts: Thomas Johnson bought land from Indian tribes in 1773 and 1775. The defendant, M’Intosh, subsequently obtained a land patent to this same land from the U.S. federal government. The plaintiffs were lessees of Thomas Johnson’s descendants, who had inherited the land. The plaintiffs brought an action for ejectment against defendant M’Intosh in the Illinois District Court, contending that the land belonged to them by virtue of Thomas Johnson’s purchases in 1773 and 1775. Plaintiffs further contended that their title was superior to the Defendants’ title because the plaintiff’s title ran directly from Native Americans. The district court held that defendant M’Intosh’s claim was superior on the grounds that the Piankeshaw were not able to actually convey the land because they never “owned” it in the legal sense of the word.
b) Issue: The Supreme Court was called upon to consider whether United States Courts shall recognize the power of Native Americans to give or sell land to private individuals.
c) Holding & reasoning: The Supreme Court upheld the finding for M’Intosh, ruling that individuals could not buy land directly from Native Americans, since the United States government had acquired ultimate title to Native American lands. In a long and philosophical opinion, the Court outlined the history of European land acquisition in North America, laying the groundwork for its rationale behind creation of the “Discovery Doctrine.” The Discovery Doctrine consisted of two key elements: First, European nations assumed free title to lands they “discovered”; Native Americans on those lands, according to this doctrine, retained the right of occupancy (like tenants in an apartment building), but had never really been considered “owners” of the land. (“Discovery is the foundation of title, in European nations, and this overlooks all proprietary rights in the natives.”) Second, the doctrine established a restriction on alienability of the tribes’ occupancy rights, which meant that tribes could sell their limited rights of occupancy only to the discovering sovereign. The Court frankly acknowledged that this longstanding European and U.S. practice treated Native Americans “as an inferior race of people, without the privileges of citizens, and under the perpetual protection and pupilage of the government.”
B. TRESPASS AND THE RIGHT TO EXCLUDE
1. General:
a) Core ownership of land is the right to exclusive possession.
2. Damages
a) Punitive damages are allowed in actions for trespass even though the damages are nominal (Jacque v. Steenberg Homes, Inc.)
(1) There is damage to the owner’s right to exclude that justifies a large damage award despite the lack of measurable harm.
(a) Damage to Individual Interests
i) A series of intentional trespasses can threaten the individual’s very ownership of the land
(1) Potential for Adverse Possession or Prescriptive Easement claim.
ii) The right to exclude is one of the most essential sticks in the bundle (Dolan).
iii) Owners will not be able to protect themselves from trespass if the courts don’t back their rights to exclude others from the land.
(b) Damage to Societal Interests
i) By punishing and deterring intentional trespassers, the court protects the integrity of the legal system.
ii) Landowner’s in general need to feel that trespasses to their land will be appropriately punished.
iii) Land-owners could seek self-help measures that could result in violence if the courts don’t punish trespassers adequately enough to deter trespass.
iv) Punishing trespass upholds the expectations of society.
v) The amount of punishment should be enough to deter future trespasses.
3. Trespass vs. Nuisance
a) Trespass – invasion of a possessor’s interest in the exclusive possession of his land.
(1) Traditional Standard of Recovery:
(a) The invasion must be:
i) Direct or Immediate
(1) It is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter.
ii) In the form of a physical, tangible object
(1) Noise and Vibration cannot cause a trespass.
(2) Dust and pollutants are not considered tangible.
(a) In order to be considered tangible or physical, the thing must occupy space in a meaningful sense.
(b) At least nominal damages can be recovered even if there is no proof of injury.
b) Nuisance – interference with a possessor’s use and enjoyment of his land
(1) Traditional Standard of Recovery
(a) P must prove significantharmresulting from the D’s unreasonable interference.
i) The court weighs the gravity of the harm to P with the utility of D’s conduct.
ii) Factors to evaluate the gravity of the harm (Rsmt Torts 2d § 827)
(1) The extent of the harm involved
(2) The character of the harm involved
(3) The social value that the law attaches to the type of use or enjoyment invaded
(4) The suitability of the particular use or enjoyment invaded to the character of the locality
(5) The burden on the person harmed of avoiding the harm
iii) Factors to evaluate the utility of D’s conduct (Rsmt Torts 2d § 828)
(1) The social value the law attaches to the primary purpose of the conduct
(2) The suitability of the conduct to the character of the locality
(3) The impracticability of preventing or avoiding the invasion
4. Advance Exclusion of Unannounced Visitors
5. Trespass to Chattels
a) In order to constitute a trespass, the conduct of the alleged trespasser must create a physical contact with the chattel.
C. ADVERSE POSSESSION
1. Overview
a) Theory of Adverse Possession: the basic theory of adverse possession is simple: if within the number of years specified in the state statute of limitations, the owner of land does not take legal action to eject a possessor who claims adv

o establish title by adverse possession, the possessor generally must show:
i) Actual possession;
ii) which is uninterrupted and continuous;
iii) open and notorious;
iv) hostile and adverse;
v) exclusive; and
vi) under a claim of right made in good faith (some states).

a) Actual possession: the primary purpose of the entry requirement is to trigger the cause of action, which starts the statute of limitations running. It also shows the extent of the adverse possessor’s claim.
(1) Constructive possession of part: if there is an actual entry on part of the land described in a deed, the possessor may be deemed in constructive possession of the rest. But an actual entry on some part of the land is required.
(2) Exclusive possession: the requirement that the adverse possessor be in exclusive possession means that she will not be sharing possession with the owner nor with the public generally. If the adverse possessor were so sharing possession, the owner would probably not realize the adverse possessor was claiming ownership against him.
b) Which is uninterrupted/continuous
(1) Policy Rationale: To give the owner notice that the possessor is claiming ownership, and that the entries are not just a series of trespasses
(2) Continuity: requires such possession and dominion as ordinarily makes the conduct of owners in general in holding, managing, and caring for property of like nature and condition.
(a) Seasonal use: thus, a summer house can be said to be continuously possessed even though the owner is only in actual possession for 3 months out of the year (Howard) or seasonal use of a hunting cabin during the hunting seasons;
(b) versus a regular city home where the occupant is only present for 3 months out of the year: possession probably not continuous in this case
(c) Abandonment: abandonment is the intentional relinquishment of possession. If the possessor abandons the property for any period of time without intent to return, continuity of adverse possession is lost. If AP returns, SoL begins to run anew
(3) Tacking: a purchaser may tack the adverse use of its predecessors in interest to that of his own where the land was intended to be included in the deed between them, but was mistakenly omitted from the description.
(a) Rule: Tacking of adverse possession is permitted if the successive occupants are in privity