Acquisitions
I. First Possession (Rule of Capture): first person to capture a resource owns it (ie whoever is prior in time wins)
a. Discovery
i. First person to possess the land owns it.
ii. “in the beginning all the world was America” Locke
Modern Discovery Issues: Ice caps melting. Deep see exploration, space. Or when physical mass changes position (i.e. a stream changes position.)
b. Capture (designed to destroy wild animals)
i. Rule: If wild animals (ferae naturae) are captured they belong to the captor; pursuit is not enough. Generally physical control is required. (e.g. Pierson v. Post)
1. Hypos:
a. If animal mortally wounded or trapped such that capture is virtually certain, is captured
b. If animal is only in the process of being entrapped, it is not caputered
i. “the door has not snapped shut”
c. Interference: If a person is in the process of entrapping an animal and another interferes without the intent to capture themselves there is an action.
i. E.g. Keeble v. Hickeringill
1. b/c society wants the animals killed
d. Custom: When a custom results in more effectively killing animals that custom can override the requirement of physical control.
i. E.g. Ghen v. Rich – whalers who killed the whale had captured it even though it floated up days after being killed.
e. Habit of return (Animus revertendi): Captured animals who develop a habit of return continue to belong to the captor.
i. Rationale: domesticated animals are valuable to society. Effort to tame them should be rewarded.
f. Escape: a captured wild animal that escapes and has not revertendi is not long considered captured.
i. Exception: where the animal is unusual to the area (e.g. elephant in the woods) hunter is put on notice of prior possession and cannot capture for himself.
g. Regulation by the state:
i. State may regulate the taking of animals through police powers
1. Ie. Prevent conduct harmful to the public.
2. Rationales:
a. Competition – Rewarding the captor fosters competition because it brings more people into pursuit; thus resulting in more capture.
i. Society wants to destroy the fox, and put the duck on the table.
b. Certainty and efficiency – rewarding capture is an easier rule to administer than pursuit.
3. Key concept: Today the need to destroy wild animals is not as relevant
a. Leads to overcapture
i. Ocean fish, whales. Has resulted in endangered species.
b. Leads to overinvestment in capture technolog
4. Rights to water: Rule of capture is applied
a. Riparian rights: landowners adjacent to stream have.
i. Rights in the Quanity, quality, and velocity of the water.
1. Non-transferable as it is attached to the land.
ii. They are entitled to the natural flow of water without material diminution of quantity or quality.
iii. Can use the water for natural wants (household) and even artificial so long as flow not diminished. BUT cannot used for nonriparian land and cannot deplete the quantity.
1. Doesn’t usually apply to streams which most states tag with the reasonable use theory
a. Theory that riparian owner is entitled to a reasonable use of the water, so long as they don’t’ harm the downstream owners.
i. Domestic use preferred.
ii. Commercial ok if does not interfrere with domestic uses of all owners.
iv. Also, see public trust doctrine.
b. Prior appropriation doctrine: 10 western states
i. Rule of capture:
1. Determined by prior beneficial use
a. Once established it can be severed from land, and sold to another.
c. Creation:
i. Purpose: to reward labor.
ii. Accession: when one adds labor (and maybe new materials) to anothers property.
1. Can result in loss by original owner BUT
a. They would be entitled to unimproved value.
2. Also may result in original owner getting all the value and improver nothing.
iii. Just labor added:
1. Usually awarded to original owner, UNLESS value has sufficiently increased so as to make it unjust.
a. BUT: requires good faith by improver.
iv. Labor and Materials:
1. Usually award to the person with the most principal material.
v. Intellectual property: copyrights, patents, trademarks, personas.
1. Prior in time is the rule.
a. Common law: some limited copying and imitation
i. Rationale: encourage comp, avoid monopolies.
1. Most of this is governed by statute today.
vi. Body Products: Should they be saleable?
1. No consensus:
II. Subsequent Possession
a. Find – involuntary bailment
i. General Rule: possessor prevails against all but the true owner. Prior possessor prevails against subsequent possessors.
ii. Possession: Must acquire physical control and have intent to assume dominion; Can be constructive passion.
iii. Finder v. Owner of premises: Generally finder entitled to possession as against all but true owner unless property found in highly private place by trespasser.
1. Employees cannot keep found object
2. Under soil: belong to the landowner
3. Object found in private home or public place: Objects in home usually go to homeowner;
a. Public places determined by whether lost or mislaid
i. Lost: accidentally left
1. Goes to finder
ii. Mislaid: intentionally placed and then forgotten.
1. Goes to owner of premises (because owner might return)
b. Adverse Possession
i. Actual entry giving exclusive possession
1. Triggers the cause of action
ii. Open and Notorious
1. Must occupy in open, notorious, and visible manner so as to give reasonable notice to owner
iii. Adverse and under claim of right (note: intent element)
1. Objective test: State of mind doesn’t matter, actions must appear to community to be that of the owner; must be occupying without permission.
2. Subjective: minority rule: some jurisdictions require that possessor have good faith belief that he has title
a. Color of title: some states require this; arising from defective deed (e.g. forged)
iv. Continuous and uninterrupted
1.
c. Gift
i. Definition: A voluntary transfer of property without consideration which is not revocable which requires
1. Intent : to pass title presently.
2. Delivery : some act giving up dominion and passing control to the done
a. Manual Deliverry
b. Constructive Delivery: Handingg over the means of obtaining possession and control (eg Key)
i. Permitted when manual delivery is impracticable
c. Symbolic Delivery: handing over some object that represents the thing (eg writing)
i. Permitted when manual delivery is impracticable
3. Acceptance: donee must accept the gift, but when gift is beneficial acceptance is presumed.
d. Bailment:
i. Rightful possession of goods by one who is not the owner.
1. Bailee
e land, there can never be a time when someone isn’t holding the land)
1. Two types of future interests can go with a LE
a. Reversion (back to original grantor)
b. Remainder (going to a third party)
i. Note that on an exam: pay attention to the fact that for a life estate there is always a future interest.
ii. Thus, if there is an LE someone always has an accompanying Reversion or Remainder.
c. Leaseholds: see Leasehold Estates
d. Defeasible Estates
Best approach to dealing with problems to figure this out.
I. Is this a fee simple, LE, or leasehold?
II. Is it a defeasible estate?
§ If yes, what type of defeasible estate?
i. Fee simple Defeasible (most common): An estate that may last of forever or come to an end upon the happening of an event in the future. Two types:
1. Fee simple Determinable (FSD) (DURATIONAL)
a. Definition: A fee simple that ends automatically upon the happening of some specified event.
b. Creation:
i. Language:
1. “so long as” or “while used for” or “Until the … not longer uses for…”
a. Note: simply stating the motive of the transfer doesn’t create FSD, rather, words limiting the DURATION must be used..
i. Thus, “for the purpose of” or “to be used for” don’t create a FSD.
ii. By operation of law: ie only a portion of the estate is transferred.
c. Characteristics:
i. Alienability:
1. Yes, but remains subject to the limitation
ii. Devisability:
1. Yes, “”
iii. Descendability:
1. Yes, “”
iv. Destructibility:
1. Yes, ends AUTOMATICALLY upon the happening off some event.
d. Does a future interest accompany it?
i. Yes, Possibility of Reverter (See Future Interests)
2. Fee simple subject to condition subsequent (FSSCS): (CONDITIONAL) (AMBIGUITIES CHOICE)
a. Definition: A fee simple cut short at the grantor’s election after a specified condition occurs.
i. Example: “to school, but if it ceases to use the land for school purposes, grantor has a right to reentry”
1. Note: right to reentry doesn’t have to be expressed, can be implied by words which are reasonably susceptible to such interpretation.
b. Creation:
i. Language:
1. To … but if… grantor has a right to reenter”
2. “but if” or “provided, however, that when the premises” or “on condition that if the premises”
c. Characteristics:
Alien
Johnson v. M’Intosh (1823):
When Johnson had a title deeded by Indians, and M’Intosh had a title deed by Gov. the court held that the Gov. deed was best. The court reasoned that land was taken by Gov. through acquisition by discovery.
