Property Semester Outline
I. Possession = Ownership?
A. Personal Property and Possession
1. real property – land and improvements attached to the land
a. can go from being real property to persona property (like cutting trees for lumber)
2. personal property – all property other than real property (books, tables, computers, etc.)
a. can be tangible or intangible
3. possession – the controlling or holding of personal property, with or without a claim of ownership
a. 2 elements needed to acquire rights as a possessor
i. Intent – the intent to possess on the part of the possessor
ii. Control – his or her actual controlling or holding of the property (also called occupancy in Pierson)
· A mortal wound is constructive control
b. a claim of possession can be good against all except those with a better right
c. proving ownership is so difficult and burdensome à rely on possession as a surrogate for ownership and title
4. relativity of title – a person can have a relatively better title or right to possession than another, while simultaneously having a right inferior to yet another person
a. few acquire perfect title
5. First-in-time – establishing property rights based on the time of acquiring the right in question (all other things being equal, the person who was “there first” is the next in line for ownership)
a. First hunter to capture the fox wins
6. Constructive Possession – has the same legal effects as actual possession except there is no actual possession in fact (it was argued that Post’s pursuit put him in constructive possession of the fox)
a. Owners of land with oil, minerals, or gas have constructive possession
b. Ratione soli – a specific instance of constructive possession (Keeble)
B. Acquisition by capture – most fundamental rule for determining ownership
1. definition
a. first person to possess the thing owns it (constructive possession also counts as possession)
2. What is possession?
a. An animal ferae naturae (air, light, water, wild animals) – capture must be practically certain
i. Property (an interest) in such animals is acquired by occupancy only
· What acts amount to occupancy?
à Justinian’s Institutes
* Pursuit alone vests no interest or right in the huntsman
* Neither pursuit accompanied by wounding
* The animal actual has to be taken
à Puffendorf
* Only actual corporal possession
* Mortally maimed/wounded cannot result in a fair taking by another
à Cases in England decided by
* Statutory regulation à title of occupancy
* Problems that have arisen between huntsman and owner of the land (not two huntsman) à ratione soli (owner of land has constructive possession of wild animals on the owner’s land)
¨ Keeble v. Hickeringill (1707), where the ducks were in Keeble’s pond and Hickeringill shot a gun from his property in the air to scare the ducks away
¨ Case was actually tried on theory of malicious interference with trade; another trespass on the case situation (but this one was correctly tried unlike Post)
à Barbeyrac
* Actual body seizure is not n all cases necessary to constitute possession, neither is pursuit alone sufficient
* Mortal wounding and not abandoning pursuit à pursuer manifests an unequivocal intent in appropriating the animal
¨ Possessing by their “industry and labor”
à What about what other sportsman and huntsman would say?
* Dissent believes you should not rely on the opinions of those above à custom should decided the case
· Pierson v. Post (NY 1805) – you took my fox
à Post only had pursuit
à Post was suing for “trespass on the case”
* Trespass – the classic case – act of wrongdoing that creates a direct injury to a person’s body or property
* Trespass on the Case – to capture cases where you didn’t exactly have all of the elements of trespass (you’re missing one of the elements)
¨ Indirect injury
¨ Lack of possession of what is injured
¨ There was an omission and not an act
* By bring trespass on the case Post didn’t have to own the fox
¨ Pierson interfered with Post’s chase
¨ Post never declared that he owned the fox
à Holding: Post did not acquire a right to sue Pierson for what he did
à Both majority and dissent believe you need occupancy to possess the question was what constitutes occupancy
* the dissent said his hot pursuit was constructive possession
à dissent also said that hunter’s custom may have indicated that Post should have possessed the animal
* reasons to be suspicious of custom
¨ custom of the industry will be formulated for the benefit of the industry not for society as a whole
¨ a custom might be dangerous to those employed in it and the courts should consider that too
¨ custom can be wasteful of the resource
¨ can lead to an overinvestment in technology
b. Why do we want to define possession?
i. For the sake of certai
r to exclude, not the owner
· usually cannot possess something you don’t know about or don’t know exists
à can be argued that someone should take possession of something when they don’t know about it
* if he is in possession of the place where the article rests [ex: Hannah v. Peel (King’s Bench Division, 1945)]
2. Occupation Theory of Property
a. Blackstone
i. you own when you use, when you stop using it, it’s no longer yours (as the world gets more complicated this won’t work = “right of possession continued for the same time only that the act of possession lasted”
ii. eventually needed more permanent dominions, need not just immediate use, but the very substance of the thing to be used (no ownership à temporary à permanent)
· part of the reason we want possession defined, striving for certainty – certainty leads to peace and order
à Helps keep the peace so that you are not constantly fighting for what you see as yours; a creation of public order
· moved from temporary ownership to permanent ownership
à when everyone puts their hand on it first how do you determine who owns/possesses it
à need for permanent dwellings (if you leave you house you would lose possession of it)
* movable things much more susceptible to the initial way Blackstone suggests things worked than soil is
à ferae naturae or things of a wild untamable disposition remain in the initial state
à encouraged making things useful and productive
b. Maine
i. Occupancy is taking possession of that which at the moment is the property of no man
· Res nullius – things which have not been owned (ferae naturae and newly discovered land)
ii. Occupant – one who first took possession of them with the intention of keeping them as his own; intention has to be manifested
c. Commonwealth v. Agway, Inc. (PA 1967)
i. interest of the state is that of a sovereign and not an owner
· only an owner is going to have ability to sue = dominium
