PROPERTY OUTLINE
Schindler Property 2010
PART I – AN INTRODUCTION TO SOME FUNDAMENTALS
Property type, IF
Want Property Returned
Want Damages
Personal Property
Replevin
Trover
Real Property
Ejectment
Trespass
I. First Possession
A. Acquisition by Discovery
1. Johnson v. McIntosh (quiet title, private citizens could not buy land from natives)
2. Locke’s labor theory – mixing your labor with the land makes that your property
3. occupancy theory – occupying the land makes it yours
B. Acquisition by Capture
1. Pierson v. Post (pursuit of capture alone does not create possession of ferae naturae)
2. Ghen v. Rich (he who “deprives the natural liberty” from an animal owns it; based on whaling customs)
3. Keeble v. Hickeringill (he that hinders another in his trade or livelihood is liable)
4. ratione soli – according to the soil, animals belong
5. animus revertendi – with intention to return
6. The Rule of Increase – the mother owns the offspring
7. Fugitive Resources – oil, ground water, etc.
8. Constructive Possession – creating possession to quiet title
9. Externalities – things that happen in one persons pursuits that affect others; courts try to make people internalize their externalities
10. Communal Property Problems (Harold Demsetz)
o Tragedy of the Commons – People rape the community lands
o Hold out Problem – can’t buy the whole land
o Free-riders – some won’t want to do the work
11. Trespass – the law wants people to worry less about trespass and more about development of their lands.
C. Acquisition by Creation
1. International News Service v. Associated Press (news is not copyrightable, but “hot news” is temporarily own able)
o public juris – in the public right
2. Cheney Brothers v. Doris Silk Corps (a man’s property is limited to the chattels which embody his invention; others may imitate these at their pleasure)
3. White v. Samsung Electronics America, Inc. (people have the right to their image and identity, right to publicity)
o Patent – drugs; 20 years
o Copyright – authorship, ideas; 70 years
o Trademark – words, symbols
4. Moore v. Regents of U. of Calif. (People have the right to know what will happen to their body parts, but not a vested monetary interest; informed consent)
II. Subsequent Possession (Lost or Stolen; who has the most relative title)
A. Acquisition by Find
1. Abandoned Property – given up, first rightful possessor takes ownership
2. Lost Property – without knowledge possession is lost (falls out of pocket)
3. Mislaid Property – without knowledge object is forgotten (forgot to return to pocket)
4. Armory v. Delamire (the title to the finder of lost items is good to the whole world except to the true owner)
o Bailment – for you (bailor) to give someone (bailee) possession of your property
· voluntary and involuntary
· Winkfield Doctrine – the bailor has action against the bailee for violation of bailment, not against a third (unaware) party (present possessor)
· Bailor à Bailee à. Present Possessor
5. Finder v. Landowner
o if the object is lost and finder is not trespassing, he has a better relative title
· Hannah v. Peel (lost brooch in rented house went to finder)
o if the object is mislaid, the landowner has better means to find to true owner
· McAvoy v. Medina (mislaid pocketbook went to shop owner)
o if the finder is an employee or invitee to the property, or the object is embedded in the soil, the landowner has better title.
· Ewes v. Brigg Gas Co. (
fusion, a fee simple has been created)
3. Baker v. Weedon (future interests may not force a sale of a life estate, there are other remedies)
4. Wood rick v. Wood (there must be substantial damage to the reversion in order for waste to be actionable in a life estate)
5. Waste (life estates have seisin, and have a responsibility to protect the seisin for transfer to future interest, and may not interfere with future expectations)
o Types
· Affirmative Waste – an action is taken (cutting down trees, razing barns)
· Permissive Waste – inaction (disrepair, allowing adverse possession)
o Remedies
· Injunction
· Damages
E. Defeasible Estates
1. Fee Simple Determinable
o “to A, his heirs and assigns, so long as the premises…(‘limit’)” [as long, while, during, until]
o possibility of reverter
· automatic reversion back to O in the case of violation of “limit”
· if a future interest is created at violation it is called a “executory interest” (see infra)
2. Fee Simple Subject to Condition Subsequent
o “to A, his heirs and assigns, but if… (‘limit’)… the grantor has a right to re-enter and retake the premises” [but if, provided that, on condition that]
· “on condition that if…”, “provided however…”,
o O must re-enter to retake the land, it is not automatic
· This future interest is called a right of entry
3. Fee Simple Subject to Executory Limitations
o “to A, his heirs and assigns, but if… (‘limit’)… to B, his heirs and assigns”
o One of the above interests with the future interest in someone else
IV. Future Interests
