Class: Property Fall 2015
Professor: Jessica Shoemaker
Exam strategy:
Generally
DEFINE EVERYTHING (Assess all potential ownership and property rights)
SHOW ALL WORK (Shoemaker knows nothing)
CLEARLY STATE THE RULES
Reverse issue spot
Law of capture
Unowned thing, unowned place, first in time, and possession (2 elements)
Consider
What type of thing is it? Is it a fugitive resource?
Custom? Social utility? Is someone making a living off this? Maliciousness?
Intent AND actual deprivation of liberty?
Trespass? Ratione soli?
Would my decision have any negative consequences for 3rd parties?
Law of finders
Make all lost/mislaid/abandoned/treasure trove distinctions
Requirements: physical control & intent to assume dominion
Consider
Anyone trespassing? Employed? Is the object attached to land?
Relativity of title? Public vs. private place?
If mislaid property, how long has the property been mislaid?
Adverse possession
Does it meet the elements? Is there color of title?
What is the mental state of the adverse possessor?
Continuous? Any issues with tacking? Easements? Prescriptions?
Acquiescence does not necessarily equal permission
Any undue hardship?
Seasonal occupancy?
Does the true owner have any disability?
Is there AP of chattels? If so, due diligence from the owner?
Outline
Property is how we distribute entitlements and access to resources
Bundle of rights
4 questions
1. What is property?
2. How do you acquire property?
3. What rights flow from each property type?
4. How is property regulated?
Law of capture
Requirements
Unowned thing (fugitive resource)
Unowned land (exception for ratione soli)
First in time
Possession = intent and actual deprivation of liberty (2 things)
(Kill, mortally wound, trap, snare counts)
Applies to
Wild animals, oil, gas, some water
Ratione soli – “according to the soil”
• Justification for giving landowners property rights for things found on their own land
• This gives constructive possession while fugitive resource located on private property
Pierson v. Post – pursuit not enough for ferae naturae. Must have 2 elements of possession (intent to control and actual physical act of control)
Ghen v. Rich – custom and usage
• The whaler must do all that is possible under the circumstances
• Considerations
Does the custom achieve a social interest?
Does something about the activity justify special treatment?
Are 3rd party interests fairly protected?
Keeble vs Hickeringill – π wins though they would have lost on constructive possession and ratione soli (∆ was on ∆’s own land while scaring ducks)
“Every man has the right to use his land for his pleasure and profit”
∆ maliciously interfered, but could have set up his own duck decoys
Ad coelom – property extends to the heavens and the center of the earth
You can take oil in shared reservoir but can’t go on neighbor’s property
Elliff v. Texon – Oil escapes from ∆’s well
Π gets half of the oil/gas because ∆ was negligently wasteful and destructive
If ∆ had simply drilled it all, π would get nothing
Social utility – we don’t want to waste resources
Synthesis: If Pierson had scared the fox away, Post has a good argument that he has the same kind of property right as Keeble and Elliff. Pierson violated Post’s right to acquire.
Law develops based different availability and needs – ex. surface water law
Johnson v. M’Intosh – Title from Indians can’t be recognized by federal court
• U.S. holds absolute title while Native Americans only have right of occupancy that can be extinguished at any time
• Discovery doctrine (law of discovery) – title to lands are with the gov’t whose subjects travelled to and occupied them
Alternate property right theory
Labor theory
Locke – we own what we create by mixing our labor into it (fruit of body)
Quasi pr
essors.
• If the finder is a trespasser, the owner of premises always prevails
• If it object is embedded, it is awarded to owner of premises.
Exception is treasure trove – intentionally buried w/ intent of returning
English law – goes to the crown (the state)
America – sometimes finder, sometimes landowner
• Private home or highly private place – awarder to owner of premises
Exception – owner has not moved into house or made it “personal space”
Result is no constructive possession (Hannah v. Peel)
• Public place? Then we get into lost/mislaid distinctions.
• Lost goes to finder. Mislaid goes to the owner of the premises.
Lost – accidently
Mislaid – intentionally placed and then forgotten
• Abandoned – awarded to the finder. If multiple finders, can be subject to the rule of equitable division.
Armory v. Delamirie
-Right against all but the rightful owner
-Relativity of title
-Even if π was a thief, he’d have a superior right over subsequent possessors
Hannah v. Peel
-Brooch is unattached and lost
-∆ was never in possession of the premises = no constructive possession
Bridges v. Hawkesworth
Parcel on floor of shop
-Guy who found it gets it unless mislaid. It was abandoned
-Place found makes no legal difference (when abandoned)
-Shop was public
South Staffordshire Water Co. v. Sharman
Sharman found rings cleaning out a pool
-Embedded in mud – landowner had constructive possession
-“Attached to or under that land”
-If a man finds a thing as the servant or agent of another, he finds it not for himself. Sharman obtained the rings for his employers
