Property
Karkkainen
Spring 2015
1) Acquisition of Property Interests
a) Capture
i) Wild Animals
(1) Cases: Pierson v. Post, Liesner v. Wanie, Dapson v. Daly
(2) Rule(s):
(a) Generally, once an individual takes control of a natural resource by capturing it in some way on his land, that individual takes title to & owns that resource absolutely.
(b) While animals are held in trust by the State for the benefit of all people, according to rules of first possession, once the animals is captured in such a way so as to deprive it of its natural liberty & ensure that it will be captured, given that the hunter is licensed, he who does so first has possession.
ii) Natural Resources
(1) Cases: State v. Shaw, Ghen v. Rich, Ophir Silver Mining Co. v. Carpenter
(2) Rule(s):
(a) Once the person has effective control of the natural resource, by a means of actual possession or a tool (like a net), he has the right to that resource, limits to custom of the trade which may regulate behavior in that trade.
(b) With water rights, prior appropriation (W) & riparian law (E) rule in terms of who gets first possession & what that actually entails. PA perfection can “relate back” to the right only if “diligently prosecuted” – the perfection is the first in time component
b) More on First Possession (Interference, Homestead Acts, Extra-Legal Rights)
i) Cases: Keeble v. Hickeringill, Stewart v. Penny, Marincovich v. Trabochia
ii) Rule(s):
(1) If there is malicious interference with another man’s livelihood, then the person has a cause of action.
(2) With the Homestead Acts, the government cannot take away grant because they claim not enough land was developed; if there was a good faith effort, then the homesteader gets the grant.
(3) Extra legal activities are not allowed & the government is the only entity that may grant real property rights (custom & extra-legal/self-help arrangements are not allowed even if beneficial à unruliness)
c) Finding Abandoned, Lost, & Mislaid Property
i) Cases: Bridges v. Hawkesworth, Haslem v. Lockwood, Franks v. Pritchett
ii) Rule(s):
(1) Abandoned: owner disclaims any further ownership; absolute title to finders who get to keep the property with no duty to return.
(2) Lost: the owner parts with property involuntarily or inadvertently; qualified title to finders get to keep, unless & until the owner actually shows up.
(3) Mislaid: property placed somewhere, then forgotten; qualified title to property owner; finder does not get to keep it, surrender it to owner of the premises.
(4) Treasure trove: intentionally concealed & not recovered by one who is presumed dead; absolute title to finder.
(5) Failure to return the property to an owner who can easily be found is theft.
d) Creation of Property
i) Cases: Forward v. Thorogood
ii) Rule(s): Unless the person seeking title to the property actually created the work themselves, they do not have title to that work (esp. with copyrights).
2) Owning Land
a) Rights & Remedies
i) Trespass
(1) Cases: State v. Corbin, Proctor v. Huntington, Donovan v. Grand Victoria Casino
(2) Rule(s):
(a) Landowners have a right to exclude others from their property but if a landowner intends to exclude others from his property, he must post conspicuous signs to that effect, otherwise the other party is not trespassing.
(b) When there is mutual mistake in an encroachment or trespass, & if the damage to the landowner is de minimis, then there is no need to award an injunction but can issue damages in accordance to market value. But, better outcomes may be reached with Coase Theorem.
(c) The owner of land or property may exclude those that they deem to be necessary of exclusion.
ii) Private Nuisance
(1) Cases: Dobbs v. Wiggins, Rankin v. FPL Energy
(2) Rule(s):
(a) “Use your property so as to not injure another’s property.”
(b) A private nuisance action is available to a landowner, lessee, or other lawful occupant of land and is often brought against a neighboring landowner (but the D could be anyone who is unreasonably interfering with P’s use & enjoyment of land; needn’t be another landowner).
(c) In order for something to be deemed PN, there must be a substantial (in its intensity & duration) & unreasonable (in traditional conception) interference with the use or enjoyment of another party which can be (un)intentional.
(d) However, while this right exists, so do defenses to it, such as being engaged in a lawful business activity or right to farm.
(e) Purely emotional or aesthetic harm in a PN suit will no
as, Minerals
(1) Cases: Anderson v. Beech Aircraft Corp.
(2) Rule(s): When gas or other natural minerals are injected back into the earth, they regain their ferae naturae quality & are subject to first possession. Because of this, owners should be more wary on how they deal with this. The other option is ownership in place where the neighbor may drill underneath & get gas from your property; either way, both are subject to capture rules.
v) Subsurface:
(1) Cases: Edwards v. Sims, Edwards v. Lee’s Administrator
(2) Rule(s): Can deal with subsurface ownership in three ways: (1) assign separate segments based on surface boundaries, & say that to whomsoever the soil belongs, he also owns the subsurface; (2) shared joint ownership of the subsurface in proportion; or (3) whoever owns the entrance, owns the cave.
3) Reconciling Land Uses
a) Common Law Rules
i) Lateral Support & Drainage
(1) Cases: Pecanty v. Mississippi Southern Bank, Butler v. Bruno
(2) Rule(s):
(a) Each owner has the right to have his own property supported by adjoining properties in “its natural condition.” An adjoining landowner who withdraws lateral support is strictly liable for all damage caused by the resultant subsidence. Excavator is liable if there is a bad result; subsequent owners are only liable if negligent.
(b) The rules of drainage prevent landowners from altering natural terrain in a way that causes an altered flow of surface water resulting in harm to neighboring property – reasonable use; (rejecting common enemy rule & natural flow rule).
(c) cf. Subjacent Support = support from beneath. Rules are similar to those for lateral support: the excavator of a mine or tunnel is strictly liable for any damage to land in its natural condition caused by subsidence. But the subsequent owner of the mine or tunnel is not liable, absent negligence.
