Property Outline 2013
Prof. Beard
I. Introduction to Property
a. What is Property?
i. Anything Owned
b. Property is about the rights of people relative to others as it relates to stuff
c. Beard’s rule: “ You can’t give what you don’t have.”
d. The “Bundle of Sticks” PUEIPFI (please use every ice piece for igloo)
i. Right to Possess
ii. Right to Use
iii. Right to Exclude
iv. Right to Include
v. Present and future interests
e. The Tragedy of Commons
i. There needs to be an incentive for each landowner to use the resource to its highest potential. The externalities in common land ownership result in overconsumption, which is what private property rights attempt to overcome.
II. First in Time
a. Discovery/Conquest
i. General Rule: Property is based on the principle of first in time
ii. As between two claimants of property, ownership/title is in the person who had the earliest lawful claim (chain of title)
iii. All things being equal, chronologically first possessor has better title
iv. You can protect a title through conquest or purchase
v. A good faith purchaser and adverse possessor can acquire title superior to those who came into possession before they did.
vi. Johnson v. M’Intosh:
1. Aboriginal title was not superior to European title because the doctrine of Discovery, which relied on the principle of first in time of “civilized nations,” which exclude aboriginals. The aboriginal was capable of occupancy, but not title.
2. With discovery, first in time doesn’t mean ownership—it is the first civilized person to get it. You cant get titled form someone who never had title in the first place
vii. Conquest
1. Conquered land rights supersede the rights of first possession and first in time
b. Acquisition by Capture
i. Possession: in the absence of a better claim, possession of property establishes a superior title
1. The first possessor has a better claim of right against all subsequent possessors.
ii. Pierson v. Post (foxes)—the 1st to physically obtain the animal was superior claimant.
1. Mere pursuit does not constitute possession
iii. Ghen v. Rich (whales)—Mortally wounding the animal is sufficient because it reduced control
1. (Deprivation of it’s natural liberty)
2. When local custom dictates to the contrary, actual possession may not be necessary as long as the custom is well recognized and not in violation of the law
iv. Keeble v. Hickeringill (ducks)—one has the right to use his land for pleasure or profit without malicious interference from another
1. Fair competition is appropriate and improves society
v. More on Property and Wild Animals
1. Public Land
a. Actual physical possession
i. Generally required for a property right
ii. Serves to provide proof of individual’s claim
iii. Discourages controversy over ownership
b. Mortal Wounding or Control
i. Hot pursuit is recognized. Intent must be clear and the taking is certain
ii. Certain possession- depriving the animal of its natural liberty
c. Animals caught in a trap or net belong to the owner of said trap—constructive possession
2. Private Land
a. Constructive possession
i. Wildlife is your property while on your land
b. Trespass
i. A trespasser who kills game on another’s land forfeits her title in favor of the landowner
ii. This is to prevent the act of trespassing from benefitting the trespasser
3. Escape
a. If an animal escapes, this retuning to its natural liberty, the former owner loses his property right
4. Habit of Return
a. If the animal periodically returns to its owner’s home, title is not lost
vi. Fugitive Resources (Oils and gases)
1. A person owns all that is over and underneath his land. So… you can extract water, oil, etc. from others property if you can pump there, but you cannot directionally drill under someone else’s property
2. You “constructively own” these resources
c. Acquisition by Creation
i. Original property in ideas or other intangible value created by individual effort is treated differently than claims to tangible property
ii. 2 competing views:
1. Owned exclusively by the creator
a. No one can exploit it except the creator
b. INS v. AP
i. Quasi—Property rationale
1. The “news” matter was shard property between the 2
2. It was the material out of which both parties were seeking to make profit
c. Favors Locke’s labor theory—encourages new invention
2. A property creator has no ownership of the creation
a. One’s property is limited to the chattels which embody his invention. Others may imitate these at will, aside from any limitation from statutory laws.
b. Policy theory: while individual ownership promotes commerce, monopolization of ideas would frustrate commerce (society benefits from imitation of good ideas through low prices)
iii. Property in One’s Persona
1. A celebrity’s right of publicity (the right to control the commercial value of his name, likeness, or personality) is tangible personal property. This protects people from losing benefit of their work in creating a recognizable persona or identity. (Vanna White)
iv. Property in One’s Own Person
1. Moore v. Regents of University of California
2. While a person has a property right to his own tissue, that right evaporates once a sample is voluntarily given to a third party
v. Instrumental Ends
1. Creative incentive
2. Economic efficiency—competition is good
d. Rights to Include/Exclude
i. State v. Shack—Landowner wouldn’t let federal members on his land to aid the migrant workers.
1. A man’s right to his property is not absolute—one should not use his property as to not injure the rights of others
2. Property rights are supposed to serve human values and should not be used to hurt others.
ii. Jacque v. Sternberg—cutting through property cause its faster
1. In this case his right to his property is absolute because of a mere commercial interest. You can’t get in trouble for simply being a jerk.
III. Subsequent Possession
a. Acquisition by Find
i. Lost Property—property that was unintentionally and involuntary separated from the true owner
1. The finder has superior rights to all those but the true owner and prior possessors.
a. Rationale:
i. Makes recovery by the T.O more likely
ii. Promotes honesty in finders to promote the find
iii. Fairness and interest of finder
b. Finder gets it unless…
i. Trespass-intentional or unintentional
ii. Employment—goes to employer
iii. Embedded in land “attached to or under”—goes to owner
iv. Private Place
1. Owner gets it… unless owner never had possession (Hannah v. Peel)
a. Owner must also have constructive possession in order to claim ownership on everything on or underneath the land
ii. Mislaid Property—voluntary relinquishment with intent to later reacquire but cannot now be found.
1. Landowner has a better claim to the find than the finder… because owner is more likely to come back there to look for the mislaid item.
2. Landowner= (owner of locus in control). With mislaid property, the owner of the locus has a superior clam. This contrasts with lost property, where the finder sometimes has a better claim.
3. There is a statute of limitations though for the true owner to come back and find it.
iii. Abandonment—the owner has voluntarily relinquished control with the intent to disclaim ownership.
1. Treated like lost property except the finder is generally in a stronger position than the landowner because there is no concern about returning it to
s.
1. Courts disfavor
2. Rationale: (1) Encourages perjury by AP, (2) Rewards the intentional trespasser but not the honest one, (3) requires judgment about what someone might have done if their knowledge was different
ii. Maine doctrine
1. There must be an intent to invade the owners rights
vii. Continuous for the Statutory Period—The AP must occupy the property continuously during the statutory period. Literally constant is not necessary, rather the AP must occupy the property as continuously as would a reasonable and average T.O. of the property.
1. Interruption by the T.O.—if the T.O. tells the Ap to leave, this is an interruption of the SOL, and the AP must start over again. An ejectment is sufficient to stop the SOL from running, so long as it is diligently followed.
2. Privity and Tacking
a. Privity- connection or interest of 2 parties over a mutual property
b. Tacking—joining consecutive periods of possession by different persons to treat the period as one continuous period (to reach the stat. period).
c. Parties must be in privity to tack
d. Successive trespass not permitted for the purpose of tacking. There must be privity!
c. Disabilities
i. An action to recover property has a set statute of limitations, but if a person entitled to bring an action to recover the property is underage, of un-sound mind, or imprisoned, additional time is allocated to the individual to bring action.
ii. A disability is immaterial unless it existed at the time when the cause of action accrued.
iii. Tacking of disabilities—disabilities cannot be tacked; not on the same person or on separate individuals.
iv. SOL will not run until the disability is removed
v. Examples of disabilities:
1. Minors, mentally ill, prison inmates, military personnel, those who are absent from the state.
d. Admission of intent to never possess the property—could cost you the property
e. More on AP
i. Title acquired—AP acquires whatever title to the property the owner had. It’s a new, legal, valid title. And can be transferred like any other property.
ii. Property acquired
1. AP w/o color of title acquires only the land they have actually physically possessed
2. AP w/ color of title acquires ALL the land described in the defective deed.
a. Because they constructively possessed the entire parcel.
f. Color of Title—ownership pursuant to a written document, usually a deed, purporting to the transfer of the property, but the document is defective in some manner
i. Does not convey legal title to the purchaser
ii. Claimant cannot possess land under color of title unless the claimant also possesses the land in good faith
iii. Possessor of color of title must still establish all elements of AP.
iv. Exception: T.O’s actual possession of part of the land negates the constructive possession and AP is limited to the land actually possessed.
g. Adverse Possession for Personal Property (Chattels)
i. Different than AP of real property because the open and notorious element is difficult to satisfy when the chattel is kept in someone’s home
