Schneider – Property
Spring 2013
Donahue – The old book
Sources of Property Law
Hierarchy of Legal Authority
1. Constitution
2. Federal Statute
3. Federal Administrative Regulation
4. State Constitution
5. State Statute
6. Precedent
Sources of Law
1. Statute of Reception
· During early America, statutes of reception were passed in the States to adopt British legal principles
· The statutes gave the British common law the force of law in the United States
· Generally, July 4, 1776 is the limit before which English cases are binding authority in states with statutes of reception
2. Common Law
· Created by judicial decisions about disputes
· In a common law system, judges are the only law makers
· In England, King William setup English common law system by adopting as written laws the decisions of the “circuit judges” that would travel around England trying cases
3. Civil Law System (Europe)
· Justinian decided to organize roman law into a restatement
· After the dark ages, Europe looked at Justinian institutions as influence; a law system that you can just apply, all laws are already written
· Napoleon used a Justinian system, calling it the “Code Napoleon”
· In the German civil code (Prussian Civil Code) laws are interpreted through historical glosses, they don’t want judges to be the ones making laws
Reporting of Cases
· Reporting of cases developed over time and therefore there can be inconsistency in holdings of prior cases
· Started with adoption of “year books” in 13th century, but these faded out
· After 18th Century, America + England began making more official reports
o American courts employed reporters who’s reports would be the official record of the court
o 33 States still use official reporters despite the availability of unofficial reporters such as West Pub Co.
Key Terms
· Seisin: today, it is synonymous with “ownership”
· Replevin: an action for the repossession of personal property wrongfully taken by the D; P holds the property until the court decides who owns it
· Laches: Unreasonable delay in pursuing a right or claim in a way that prejudices the party against whom relief is sought
· Trover: a suit in trover was a suit to recover the value of P’s chattel that the defendant had converted (usually by selling it to an unknown party)
Wild Animal Law
· First person to take possession of a wild animal acquires property interest in it.
· Possession is established by depriving it of its natural liberty by killing it or capturing it (trap or mortal wounding is sufficient)
The Capture Rule (Pierson v. Post)
· Property right in farae naturae is acquired only through physical possession; pursuit is not sufficient
· The first person to kill, mortally wound (so long as he continues to pursue), or capture (manucaption) a wild animal acquires title to it
o Capture vs. Kill
§ For a capture to be legitimate, the trap must 1) be within the power of the hunter, and 2) the wild animal cannot be able to escape the trap; Must be some sort of manucaption (Pierson v. Post citing Grotius) – For example, see Young v. Hichens fishing boat case
§ It is not necessary that there be absolutely no possibility of escape. The captor acquires possession if he uses reasonable precautions against escape (State v. Shaw – lake fish trap)
o Release or Escape After Capture
§ Ownership rights end when a wild animal escapes or is released into the wild
§ Tame wild animal (Animus Revertendi): If a captured wild animal is tamed such that it has a habit of returning from wild to its captor, it is still owned by the captor so long as that wild animal continues to return
· Criticism: promotes uncertainty; how can you tell that a wild animal, like a deer, is domesticated and is a animus revertendi?
§ If wild animal that has no animus revertendi escapes, the captor loses possession, and the animal is again subject to capture of another
· Exception: if the animal is unusual, hunters may be put on notice that someone owns it and therefore should know it belongs to another (Stephens v. Albers silver fox)
o Intent Doesn’t Matter
§ Intent does not matter (unless a statute provides otherwise)
§ Policy: Difficult to prove intent; a goal of property law is certainty, we want to easily know who owns what and intent is difficult to prove
o Animals in Natural Habitat
§ No one owns wild animals in their natural habitat (not even a Commonwealth or State. Commonwealth v. Agway)
o Policy for Capture Rule
§ Property law is about certainty; rewarding capture is easier than protecting pursuit and the prospect of capture
§ The rule of capture promotes certainty and efficient administration in a situation where stakes are not high and worth a lot of judicial time
o Wild Animals on Owned Land
§ “Natural and Landlocked” – control over wild animals can mean ownership
§ Dycus v. Sillers – manmade catfish pond; where a lake or pond is man-made, the record title holder owns the waters and life within
§ In America, a landowner owns no rights in wild animals on their land. However, because an owner may bar hunters and others from trespassing on their land, this gives landowners the exclusive opportunity to capture wild animals on the land (subject to hunting laws)
§ States/Commonwealths have no property right in the animals on them (Commonwealth v. Agway)
Laws of Trespass
1. Trespass
a. Action for acts of misfeasance resulting in direct injury to the person or property of the plaintiff
2. Trespass on the Case
a. Action of recovery for damages where damages sustained are only consequential to D’s action (Keeble v. Hickergill)
Pierson v. Post (1805) – Capture Rule
Facts:
· Post, hunter, found and pursued a fox over vacant (“wild, unposessed, uninhabited”) land w/ his hounds
· Pierson, aware that Post was chasing the fox, killed it himself
· Post sues Pierson for trespass; TC holds for Post, Pierson appeals
Issue:
· Did Post, in pursuing the fox, come to occupy the fox thus creating n action against Pierson for taking it away?
Holding:
· No; Mere pursuit does not create occupancy, capture is necessary for possession
Reasoning:
· Property in wild animals is acquired by occupancy only (Justinian, Bracton, Puffendorf – must be actual, physical taking)
· Mere pursuit vests no right in the pursuer
· Actual seizure may not be necessary, mortal wounded or trapped animals that have been deprived of their natural liberty constitute occupancy if pursuit is continued.
· If an animal is captured, capture must be complete; must not be able to escape
· Any other rule would lead to ridiculous amounts of litigation from those whose pursuit was interrupted
Dissent
· Believes pursuit + near certainty of capture is sufficient to establish occupancy in an wild animal
· Policy: allowing someone to interrupt a hunt legally doesn’t encourage the act of hunting
· We should look at the custom of hunters to determine what the law should be
Young v. Hitchens (1844) – Fishing Boats – Completed Capture and Possibility of Escape
Facts:
· A fishing boat (A) cast net around fish, encircling them; boat still had to complete its circle; until this is done, fish can escape
· Second fishing boat (B) goes inside A’s net and encircles the school INSIDE the net; completes the capture by closing their net
Holding:
· B became rightful possessors of the fish; A hadn’t finished capture because fish could still escape
Rule:
· Capture of wild animal must be complete in order to have occupancy and therefore ownership
State v. Shaw (1902) – Lake Fishing Trap Case – Completed Capture and Possibility of Escape
Facts:
· A set a net in a lake to catch fish over night. The net is a long tunnel that fish swim in and then have difficulty getting out of (like lobster trap); escape was possible but unlikely
· Tugboat came and took the fish from the trap during the night
Holding:
· A possessed the fish, tugboat crew guilty of larceny (unlawful felonious stealing of personal property)
Rule:
· It is not necessary that there be absolutely no possibility of escape to have possession of an animal; Captor acquires possession if he uses reasonable precautions against escape.
Commonwealth v. Agway – County making claim to fish in its rivers
Facts:
· Commonwealth brought suit in trespass to recover damages for value of fish killed from Agway’s pollution in the creeks
· Commonwealth claims property right to the fish within its bounds
Holding:
· Commonwealth does NOT have property right; Dismissed
Reason:
· Commonwealth has regulatory authority over the fish, but no property interest
· The court clarifies that the state has ownership of a sovereign, not as an actual owner. Wild animals are not in the possession of anyone until they are captured
Property Interest Resulting from Business Interest
· If one disrupts another’s business in a malicious way that confers no social benefit, an action of trespass on the case arises
· If one disrupts another’s business in a way that DOES confer a so
Actual and exclusive possession – Juneau
a. Purpose of this requirement is to determine when the SoL starts running
b. Adverse possessor must be in exclusive possession, meaning they aren’t sharing w/ the owner or the public generally
c. It is possible for more than one person, acting in concert and sharing only among themselves, to acquire title by adverse possession as tenants in common
2. Open and Notorious – Winchester, Monroe
a. The adverse possessor must occupy the property in an open, notorious, and visible manner
b. Must be such that will constitute reasonable notice to the owner that they are claiming dominion sot that the owner can defend their rights
c. The acts must be appropriate to the condition, size, and locality of the land
3. Hostile and under claim of right
a. “Hostile” does not mean with animosity, it means without owner’s consent
b. Hostile state of mind begins only when a disseisin acquires such state of mind, not necessarily when he first gets on the land
c. Hostility is assumed if land is being used by trespasser without express permission (Peters v. Juneau)
d. Adverse possessor must believe in his mind that he has a right as an owner
e. Permission negates any claim of right
f. Objective test (Juneau)
i. Objective test is applied to most cases of adverse possession
ii. The state of mind of the possessor is not important, what is important is his actions
iii. His actions must look like they are claims of ownership
g. Subjective Test
i. Applied in boundary disputes
ii. Courts require some sort of actual, subjective hostile intent in boundary disputes
1. Must have a bonafide or good faith belief that he has title
iii. Some courts require that, in boundary disputes, if the amount of land claimed isn’t noticeable to the naked eye, no presumption of knowledge of the actual owner exists (and therefore it isn’t presumed ‘open and notorious’)
h. Problem with Co-Tenants
i. Co-tenants cannot say they own ½ portion of land, they share all the land jointly
ii. To claim AP, a person living on the land would need to show that he has been clearly hostile and counter to the interests of his cotenants as to put them on notice that he is attempting to claim the land as his own (usually arises in family disputes when land is passed to multiple heirs)
i. Color of Title
i. Some states require “color of title” for any adverse possession, but this is not common (a piece of paper which purports to pass title but which fails for some reason to have that effect; can be a deed, some sort of conveyance)
4. Exclusive
a. Adverse possessor must be in exclusive possession, meaning they aren’t sharing w/ the owner or the public generally
b. It is possible for more than one person, acting in concert and sharing only among themselves, to acquire title by adverse possession as tenants in common
5. Continuous for the statutory period
a. Possession must go uninterrupted throughout the statutory period
b. Must be consistent with the average owner’s use of similar types of land
i. Ex. if the type of land is ordinarily only used seasonally, then seasonal use by an adverse possessor is probably sufficient
