Property I Outline

Property Spring 2012 – Prof. Osofsky

I. Separate v. community property

a. Separate – spouses own their property separately except to the extent they choose to share it or mingle it with their spouses property (majority)

b. Community (9 states) – all property acquired during the marriage including earnings is community property and is owned equally by both spouses

c. Cases:

i. P696: Re marriage of the king: husband was professional gambler and the court was allowed to take this and other factors into acct when dividing property. A NON 50-50 split was OK.

ii. O’brien p697: husbands license to practice medicine was subject to distribution.

iii. NOTE: ALMOST ALL STATES REJECT THIS. The value of a degree is NOT divisible on divorce.

iv. Watts: unmarried couple lives together for 13 years and had 2 kids – courts says pub. Policy does not preclude k claim, sufficient claim for unjust enrichment and partition.

v. Some states would have considered this a common law marriage.

II. Possession – physical control over an item AND an intent to control it or exclude others from it. (as articulated from popv v. hayashi p 156)

a. Cases:

i. Pierson p152: chases fox that other guy shoots and takes.

1. Pursuit alone vests no property right.

ii. Popov p156: baseball

1. Undertaking of significant but incomplete possession interrupted by unlawful acts of others = pre-possessory interest.

a. Would have to assume he would or wouldn’t have caught it and the other guys was innocent therefore both men have equal and undivided interest

iii. Elliff p160: successive well explosions as result of negligence.

1. Law of capture: owner of tract acquires title to oil/gas he produces, even though part may have migrated there. This is negligently destroying others chance to use it so they have to reimburse despite law of capture.

b. Ground Water

i. Minority: free to withdraw as much as long as not wasting it.

ii. American reasonable use rule: may withdraw water only if its put to reasonable use on overlying tracts.

1. Some states do NOT impose the on-tract limitation

c. Surface Water

i. Riparian Doctrin: allocates water rights to owners of land bordering on a surface water source. These rights are subject to the reasonable use rule. (states along Miss. Rv. And East)

ii. Prior Appropriation: allocates water based on parties putting water to beneficial use (irrigation, industrial uses, drinking water and instream flows). Allocates according to temporal priority. (West states) note: some west state have a mixed system.

d. FINDERS:

i. Cases

1. Charrier p171: Found burial artifacts and dug up literally tons w/o permission. This is NOT abandoned property and he loses. Burial items remain the property of whomever buried them. (this is different if not with the body)

ii. Lost property: owner accidentally misplaces

1. Finder does NOT acquire title against true owner but generally has the right to prevail over everyone else

iii. Mislaid: owner intentionally left it somewhere and then forgets where it was put

1. Same as above, no title

iv. Abandoned: owner intends to give up any claim to the property

1. Finder has the right to keep since the original rights were relinquished.

v. Finding things on other’s land:

1. Landowner wins if trespasser or found embedded in the soil (theory is that its part of the read property) exception is a treasure trove buried for later. Homeowner generally wins anything found in private home.

2. With permission – courts are wildly divided.

3. Place open to the public: depends on court, some to finder others landowner.

III. Adverse Posession – possessing another’s property in a manner that is exclusive, visible (open & notorious), continuous, and w/o the owner’s permission for a statutorily defined period.

a. Cases:

i. Brown p281: 2 feet tract reveals new owners “clear & convincing” standard of proof b/c land is serious stake. They attempt to use “tacking” – permits adding together the time period that successive adverse possessors claim property. (only if in privity)

ii. Romero p287 – “color of title” – done everything to try to pass title but technicality means that you have not actually done so. Court says that the deed was detailed enough to identify the land in Q.

iii. Nome 2000 – used land as ca