Property I Outline

Property Outline
What is Property?
Actions to recover possession
Replevin of chattels
Ejectment
Quiet Title
– Adverse possession claims may be brought by the adverse possessor himself in a lawsuit against the record owner to “quiet title.” This kind of claim asks the court to grant a declaratory judgement that the adverse possessor has become the owner of the disputed property through adverse possession. – an action to recover possession of land claimed by another. To recover, plaintiff must show defendant is in wrongful possession of the property and that plaintiff has a present legal right to possession of same.
Acquisition of Property
How are property rights initially created?
Possession
Claim
Conquest (by force)
Seizure / Capture
Make it
—labor & investment—wild animals, natural resources (migratory items in the public domain)—assumes that you can VOID the previous ownership and create your own
Rule of Capture
First-in-Time Rule
Discovery of America
Title by discovery
Title
Rule of discovery
Johnson v. M’Intosh
– Marshall held that discovery gave title to the European nations which passed title to the states or to the United States. European governments were able to impose their laws on the Indians because the Indians did not have a set of laws concerning ownership of property and did not recognize the concept of “owning” land.
Indians were in possession of blackacre but did not in fact own it; they were hunters who moved around, not settlers that built permanent homes.
Indians had no boundaries—they were nomadic and did not intend to stay in one place.
Indians were not using the land for its best / most efficient purpose (maximum potential of land not used).
—the sovereign who discovers blackacre lays claim to it, can exercise ownership rights over it to the exclusion of other governments, but must respect the rights of native inhabitants. Native rights are thus impaired, but yet protected (see right of occupancy). – the right to own and possess real and personal property. Identifies the legal owner of the land.
Title by Conquest
Johnson
court’s justification—it is inconsistent to have two sovereigns (US and Indian nations) on the same land. We needed a way to settle this dispute that would create certainty in the law—a necessity for the development of the nation (we could not have litigation every time the country moved further west). The Indians would never recognize the sovereignty of the US government and would be unable to assimilate into the general population if given sovereignty over their land.
Native American right of occupancy
Possession ¹Title
Indians do not have title or ownership, and thus cannot be compensated for loss. (Tee-Hit-Ton Indians v. United States)
Extinguishment of right of occupancy
Tee Hit Ton
: US did not conquer by FORCE, or purchase land from them. Definition of “conquer” has been changed from war, to the exercise of sovereign power over another.
Indians were holding the right to occupancy by the grace of the sovereign (the US govt.), so in the sovereign’s discretion, it may terminate that right.
—the U.S. govt. may not kick Indians off the land, but must purchase the land from the Indians or conquer them. – (Indian title) – right to remain in possession of blackacre as long as the sovereign does not exercise dominion over it. No other sovereign may take the land, but the Indians may not transfer ownership. Right has been granted to the Native Americans, but remains subject to the control of the sovereign Congress. – (alternative theory to title by discovery) – in Johnson Marshall held that Europeans – and subsequently the U.S. – got title by conquest. “Conquest gives a title which the Courts of the conqueror cannot deny.”
Capture of Wild Animals (Ferae naturae)
Rationale
Competition
Ease of administration
– (Rule of certainty) – Rewarding capture, an objective act, is an easier rule to administer than protecting pursuit, which is hard to define and can take many forms.
Wounded or trapped animals
If first possession by trespasser
Ratione soli – own it because you own the soil
Custom
If the custom rule not applied then the industry will stop because there is no other way to hunt the animal and be profitable.
Aspect of certainty with the type of hunting method to know who had killed the animal (made the effort).
Investment of time and resources
.
– While the general rule is that the captor must acquire physical control over the animal, in some hunting trades, a custom, which is thought more effective in getting animals killed, may dictate a different result. (Example – Ghen v. Rich – whales) – if the other claimant is the owner of the land, the owner of the land will get the animal. – If an animal has been mortally wounded or trapped so that capture is virtually certain, the animal is treated as captured. – To foster competition, resulting in more wild animals being captured, society does not reward the pursuer, only the captor. It is assumed that this brings more persons into pursuit, resulting in more capture.
Rights to Oil and Gas
Rule
Reasons rule of capture applied:
Analogous to wild animal
Incentive to produce oil and gas
– because if you do not extract it now, then someone else will and then you will have lost your opportunity.
Nonnegligent capture required
– A negligent driller must pay damages for injuring the common reservoir and thus is penalized for negligently destroying common resources. (Eliff v. Texon Drilling Co.) – Doctrine of waste
But if the driller is not negligent, he can withdraw all the oil from the common pool and make it his own.
– Some courts have characterized oil and gas as “fugitive” resources, analogous to wild animals which may wander