Property I Outline

Property
Fall 2006
Professor Rodriquez
 
 
 
 
 
v     Introduction. 2
 
v     Acquisition of Property. 3
I.      First Possession:3
A.    Acquisition by Discovery:3
III.  Subsequent Possession. 6
A.    Acquisition by Find. 6
B.    Acquisition by Adverse Possession. 8
C.    Acquisition by Gift11
 
v     Estate System.. 12
I.      FUNDAMENTALS. 12
II.    Estates in Land. 13
 
v     Landlords and Tenants. 23
 
v     Land Use Controls. 30
I.      The Law of Nuisance. 30
 
 
 
Introduction
 
I.       Fundamentals
 
a.    Acquisition: Most often by voluntary transfer, but often by acquiring possession
                                i.      Rationale:
§         preservation of law and order
§         rewarding those who maintain property
                              ii.      The law typically protects property that you legitimately acquire
 
b.     Possession: physical possession or occupancy
                                i.      Fact v. Legal Conclusion: “possession” may refer to a fact or to a conclusion of the court in interpreting the meaning or requirements of possession
                              ii.      Ownership is not necessarily possession. i.e. leasing an apartment
                            iii.      Constructive Possession: someone who is not in actual possession of something may be in “constructive” possession if the law treats him as an actual possessor, even if he is unaware of the things existence.
§         Landowners are said to have constructive possession over animals on their property. Courts are less likely to apply this when landowner is not in possession or control of land.
§         Rationale: discourage trespassers, allows court to achieve equitable results
 
C.    “Property Right” is a creation of law
                                i.      Determining this may involve the intentions regarding the property
                              ii.      System/structure of P rights is fundamentally created and enforced by govt.
 
D. Bundle of Sticks:
Occupancy
Convey
Devise
Include
Exclude
Destroy
 
 
 
 
 
 
 
 
 
Acquisition of Property
 
I.First Possession:
*The first to take possession of something owns it
 
Policy/Rationale:
(1) reward labor,
(2) protect investments
 
Acquisition by Discovery:
 
Johnson v. Macintosh (1823): Title by discovery
F: M’Intosh owned land that he acquired through a grant from US. Johnson purchased the same land from Indian tribe.
I: May US courts recognize a title granted by an Indian tribe?
R: Discovery gives an exclusive right to extinguish Indians right by purchase or conquest. Indians only had right of occupancy which was non-transferable.
*ultimately legitimates discovery as a principle of possession, and legitimates, in following decades, conquest as a means to legal possession
 
Acquisition by Capture: Rule of Capture: The first to take possession of something owns it. Wild animals (Ferae Naturae) are possessed only when actually captured. To capture an animal you must deprive it of its natural liberty.
 
Policy/Rationale:
      (1) foster competition
      (2) certainty
 
*Rational Soli: (“by reason of the soil”) A landowner owns wild animals on his land through constructive possession, prevents trespass to land
 
*Ad Coelum: he who owns the land owns everything underneath and above it (caves)
 
Pierson v. Post (1805): Pursuit v. Capture
F: Post was in pursuit of a fox when Post intervened and killed and captured it.
R: Pursuit alone does not establish property rights in a wild animal/capture. Mortal wounding (or, depriving animal of his natural liberty) is required.
Holding promotes certainty in ownership, which should encourage hunting.
 
Ghen v. Rich: Custom, rather than occupancy, determining possession
The killing (and marking) of a whale establishes firm possession, which cannot be appropriated by a finder. Bodily seizure it is not required. Not usual to decide a case according to custom, but was necessary in whale cases. No other way to establish certainty for whale hunters, and they wanted to promote the whale industry.  (“Iron holds the whale”)
 
 Keeble v. Hickeringill (1707): Healthy competition v. malicious interference (free market).
R: If a person merely seduces away business from a competitor, that is healthy competition and OK. He can interfere as long as he intends to capture the animal. But if he violently or maliciously interferes with another’s business, he is liable for damages. Creative alternative to arguing about possession- gave Keeble a right to maintain cause of action, since there is no property in wild animals once they leave your property.
 
Wild Animals:
You lose property rights if a wild animal wanders off. 
Animus Revertende: You keep rights to domesticated animal, or a wild animal that intends to return to its captor, even when it wanders off. ()
Escaped wild animals are free again unless they are not native to the area.
Note, universally accepted custom: if your female wanders off and mates with someone else’s male and has offspring, ownership of offspring goes to owner of mother (nurturer).
Relativity of title: T trespasses on O’s land to capture a wild animal, and cages it on T’s land. Then T1 trespasses on T’s land and steals it for himself. Then: T’s title is relatively better than T1, but O’s property is relatively better than T.
Land
 
Riparian land doctrine: Riparian rights are ‘attached’ to the riparian land and cannot be transferred to a non-riparian owner. Reasonable use permitted.
Government regulation: Govt. acts like a trustee- has ‘police power’ to regulate, control, and prevent exploitation of natural resources (not true ownership though).
Fugitive Resources
 
i. Oil & Gas (mineral ferae naturae): governed by the Prior Appropriation Doctrine (first in time, whoever drills first has superior rights)
 
ii. Ground Water: Rule of capture (Old English Law), modern law applies a reasonable use clause that restricts use (America