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Property I
University of Illinois School of Law
Freyfogle, Eric T.

Property Outline

Prof. Freyfogle – Spring 2015

Property, generally

Property = a relationship among people with respect to things

· In order to have property, you have to have a legal system/system of enforcement

***Another way property rights arise – people getting together, and for their collective good, coming up with a labor division and having to defend their property against others

1 acre = 43,560 sq. ft.

WILD ANIMALS

***You as the capturer need to have INTENT to capture and possess the animal and cannot abandon pursuit

MUST HAVE PROPER LICENSE/PERMISSION TO HUNT, MUST BE PROPER HUNTING SEASON, MUST NOT VIOLATE ANY OTHER GAME LAWS

Pierson v. Post (1805) – must actually trap animal to possess it; not enough to just pursue it

Liesner v. Wanie (1914) – the instant a wild animal is brought under the control of someone so ownership/possession is inevitable, another cannot intervene and take it as his own by killing it

Dapson v. Daly (1926) – just wounding animal is not enough; must actually kill it and take it

· Dapson shot deer, but it kept running along and Daly killed it and carried it away

State v. Shaw (1902) – fishermen had 730 lbs. of fish in nets; ruled in their possession because it was nearly impossible for fish to escape

Buster – mortal wounding not enough to gain property interest because hunter left animal overnight

Whaling cases:

· Taber v. Jenny – Rule: When a whale is taken captive and anchored, with marks on it, it belongs to those captors even if others find it still anchored

· Bartlett v. Budd – Rule: Whoever kills and takes possession of the whale gets ownership over it

· Swift v. Gifford – Rule: Custom that the iron holds the whale was reasonable and valid; initial piercer of the whale gets it

Protection during capture:

· Keeble v. Hickeringill (1701) – def acted w/malice when he interrupted ¶ hunting on decoy pond; for ¶; torts case that protects against tortious interference of a business activity

WATER

***Very little riparian litigation because it’s expensive and complex

Riparian rights = water rights that attach to land

· Don’t really have these in the West; there water rights are allocated separately

Use rights = individual water users gain these; limits as to how to use water and where

RELATION-BACK DOCTRINE = WHOEVER COMPLETES THE APPROPRIATION, MAY DATE THE APPROPRIATION BACK TO THE DATE WHEN WORK ON THE DIVERSION COMMENCED

Ophir Silver Mining Co. v. Carpenter – held ¶ gets the rights because it was an unlawful diversion of the water; to get rights to water must:

· Must physically divert the water from the river

· Apply it to a beneficial use

Stratton v. Mt. Hermon Boys’ School (1913) – for ¶ Stratton; school diverted water off the tract and it affected flow of water to ¶‘s land; reasonable use on the riparian tract; can’t use it elsewhere if it’s going to cause any harm to downstream use holder

Understand the issues – big issue is where can you use it? You may or may not be able to use it off the riparian tract

3 approaches:

1. Boys’ school

a. As long as it isn’t unreasonable under the circumstances, you should be able to divert it anywhere

b. Domestic uses are the most reasonable/protected

c. Relying on earlier cases in MA

d. RESTATEMENT EMBRACES THIS APPROACH

2. Trial court (and ¶)

a. If you’re a riparian land owner, you may use the water only on the land adjacent to the water

3. Appellate court

a. On the tract: you can make reasonable use

b. Off the tract and outside the watershed: cannot cause harm to riparian downstream who is using water on the tract

Be familiar with place-of-use approaches:

1. Old rule: use the water on your property. Period.

2. Ct. in Stratton adopts modified version: can use the water off the property as long as you aren’t hurting any other riparian downstream

o If they are harmed, then you can maybe buy them off

3. Third rule & Restatement rule: can use the water anywhere but the place of use outside the watershed becomes a negative factor when balancing reasonableness

PRIOR APPROPRIATION:

REASONABLE DILIGENCE TO DIVERT W

erty Owners Assn. (1988) – uses the civil law rule, saying Beacham has the right to reasonable use and enjoyment of the whole lake surface; TBD if her boat rental co. is making “reasonable use”

State v. McIlroy (1980) – Mulberry River is navigable as it passes through McIlroy property; says it is legally navigable because it is actually navigable and it is commercially valuable

Human-made water bodies à Most states say they do not become navigable simply because they are connected to a navigable waterway

Munninghoff v. Wisconsin Conservation Commission (1949) – Rule: Owner of submerged land has the right to make use of the water which passes over his land, or to grant its use to a non-riparian; ¶ is owner of the banks of the stream and the bed, whether it’s navigable or non-navigable

· Public can use the bed of the river

· Must be incidental to another lawful activity

USING WATER TO DEFINE PROPERTY BOUNDARIES

thread of the stream = “deepest grove or trench in the bed of a river channel, the last part of the bed to run dry” (p. 153)

avulsion = “sudden and perceptible loss of or addition to land by the action of water, or a sudden change in the bed or course of a stream” (p. 153)

· has no effect on the boundary

· boundary remains at the center of the old channel

accretion = “process of gradual and imperceptible addition of solid material which extends the shoreline” (p. 153)

· boundary follows the channel if accretion occurs

· boundary at the center of the channel

reliction = losing something

Babel v. Schmidt (2009) – Schmidt had burden of proving change occurred by avulsion; failed to meet burden, so boundary would be at the center of the channel