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Property I
University of Tennessee School of Law
Plank, Thomas E.


Exam tips:
Property law is about best way to allocate and use resources. Think about economic considerations. How does the rule affect people’s behavior?
Form/category/label/magic words over substance.
You want label and substance to match. When substance and form is not the same and you exploit it or defend it.

Johnson v. M’Intosh 21 U.S. 543 (1823) C.J. Marshall
Facts: Plaintiff purchased land from the Indians in 1773/75 and the defendant later purchased the land from the U.S. via grant. The land in controversy was in Virginia.
Holding: The Indians did NOT have power to give the land. Conquest gave the superior title to the conquerors (then passed down to the U.S.). The Indians are to be considered occupants and incapable of transferring the absolute title to others.

NEMO DOT – one cannot give what one does not have
First in time, first in right
Possession puts the world on notice of your interest, title doesn’t


International News Service v. Associated Press S.C. 1918
AP alleges that INS was pirating their services. INS claims as soon as the AP newspaper sources publish the AP news, then it is no longer property of AP, if it ever was.
Holding: The INS is taking material acquired by AP (as a result of their expenditure of labor, skill, and money) and trying to reap the benefits as selling it as INS’s owns.
-It is unauthorized interference at the point where the profit is to be reaped in order to divert material portion of the profit from those who have earned it.
-Pirating – unlawful stealing of someone else’s property.
-Appropriating – applies taking something that belongs to someone else.

Cheney Bros. v. Doris Silk Corp 2nd Cir. 1930, Learned Hand
Facts: Defendant copied one of Plaintiff’s successful silk patterns and undercut the plaintiff’s price. No copyright for fabrics at this time.
Holding: Doris Silk can copy Cheney bros. designs. (If they had a copyright then they wouldn’t have been able to copy the design)
Reasoning: A man’s property s limited to the chattels that embody his invention. Others may imitate these at their pleasure. International News was held to be limited to the printed news dispatch. Court says to go to Congress.

Smith v. Chanel 9th Cir 1968
Chanel No. 5 was unpatented. Appellants had a right to copy it. Imitation is the life blood of competition.
Availability of substantially equivalent units that fuels supply and demand. The public benefit over disapproval of copying someone else’s work. A large expenditure of money does not in itself create a legally protected right.

Jacque v. Steenberg Homes Wisc 1997
Steenberg homes had a mobile home to deliver. Instead of using the road because navigating it would be too difficult, they cut through the Jacques field.
Holding: Def. can be punished with large punitive damages, even though his intentional trespass of land only caused nominal damages. To protect landowner and to give state a power to protect landowner. Private landowner has a right to exclude others from his land, as long as doesn’t invade rights of another person.

State v. Shack NJ 1971
Defendants entered the property to aid migrant farmworkers employed and housed there. Having refused to depart when the owner demanded they leave, the def’s were convicted of trespassing.
Holding: The ownership of real property does not include the right to bar access to governmental services available to migrant workers. Maxim of common law that one should so use his property as not to injure the rights of others.

Armory v. Delamirie King’s Bench 1722
Jewller took stones out of a jewel and refused to give them back to the boy.
Trover (today called CONVERSION) is a common law action for money damages resulting from the def’s converstion of his own use of a chattel owned or possessed by the plaintiff. In order to have a claim from trover (recovery of damages for wrongful taking of property) or conversion, you need to have a property interest. The finder has a superior property interest to everyone but the true owner. Possession as a finder gives you a property interest.
-Trover or conversion – for damages
-Replevin – to get the thing back

1. actual entry giving exclusive possession that is
i.e. Lutz case – substantial enclosure or usually cultivated (this is not required though, just an example)
2. open and notorious
-Manillo – encroachment must be clear and self evident to the naked eye (and not require a survey); needs to give reasonable notice to the owner.
3. adverse and under a claim of right – generally if occupier acts like true owner
hostile = incompatible State of mind for claim of title- 3 views:
1. objective standard – state of mind is irrelevant
2. good faith standard (Connecticut Doctrine) – the required state of mind is “I thought I owned it.”
3. aggressive trespass standard (Maine Doctrine)- the required state of mind is “I thought I didn’t own it, but I intended to make it mine.”
4. continuous for the statutory period – the possession of predecessors may be tacked to meet the statutory requirement if the parties could be said to be in privity.
-Need normal ordinary use of the property.
-Though, adverse possession may exist even if the occupant does not reside on the property and for long periods does not use it at all. (If similar property in the area is used only during part of the year, then adverse possession may only be needed for part of the year; i.e. summer vacation, etc.)

Entry and exclusive possession that will ripen into title by adverse possession is usually in the manner that a true owner would use it, such that neighbor would regard the person as exercising exclusive dominion.

-Color of title – claim founded on a written instrument that is for some reason defective and invalid (in a few states color of title is essential to acquiring title by adverse possession).
-In color of title claims, you can usually get the whole piece of property even if you are not using the whole piece of property. In a claim of title action, you can only get the land that you are using, if it isn’t the whole piece of land.
-As opposed to claim of title, which is not founded on an actual written instrument and is just a possessor asserting that he owns a certain piece of land through possession.

-Van Valkenburgh v. Lutz NY Ct of Appeals 1952
Lutz crossed a tract of land they did not own. Also on the land they did not own, they built Mr. Lutz’s brother Charlie a one room house. Lutz tended garden on the lot they did not own, selling vegetables. Lutz claimed right to the property by adverse possession for up to 30 years. Lutz loses.
Holding: The proof fails to establish actual occupation for such time or manner as to establish title.
To acquire title by adverse possession, must show proof for 15 years there was an actual occupation. Premises has to be protected by an enclosure or usually cultivated or improved. This court does not think it was improved. Plus Lutz did admit he knew he was not the owner of the land in the previous suit.
Who has to be put on notice that Lutz is using the land? True owner. The problem in Lutz was how much did you occupy? Did you really occupy? Dissent: There was substantial improvement.

Mannillo v. Gorski SC of NJ 1969
steps and walk encroached upon plaintiff’s land by 15 inches. Plaintiffs contest adverse possession because her possession was not one of a hostile nature. They say D belief was mistaken and that the intentional taking requisite of adverse possession is lacking.
-Maine doctrine – rewards the possessor who entered with a prem

“heirs of B” implies it is a fee simple.

Problem: What if A dies while B is alive? There are no heirs since B hasn’t died yet.
common law – O gets a fee simple and C’s interest gets wiped out.
Modern – It goes back to O as a fee simple subject to an executory limitation.
When B dies, the heirs of B have a contingent remainder.

O conveys Blackacre “to A for life, remainder to B and her heirs.” B then dies intestate without heirs. A then dies. Who owns Blackacre?
When A dies, A’s life estate ends, and the state now has a fee simple.

C. The Fee Tail, pp. 186-89. i.e. to A and heirs of his body or A and her issue.
Lasts as long as descendants of the grantee named in the fee tail are alive.

D. The Life Estate, pp. 189-206:
White v. Brown TN 1977
Mrs. Lide died leaving a handwritten will. She wanted her niece Sandra White Perry to be the executor and wanted her sister in law Evelyn White to have her home to live in and not to be sold. Ct ruled it was a fee simple to White.
Reasoning: tie between a life estate and fee simple, fee simple wins.
The complicating factor is the fact that Lide said “not to be sold” — which is a restriction conflicting with the free alienation of property.

Baker v. Weedon SC of Miss. 1972
Weedon died, left his 3rd wife Anna everything. When she died, if she didn’t have any children, went to his kids.
Anna (73 years old) wants to sell the property so she can have adequate income for the rest of her life.
Rule of fertile octogenarian – you assume as long as they are alive, they can have a child.
Issue: what consideration should be given to interest of remaindermen?
Holding: Need to consider both life tenant and remainderman’s interest.

Primogeniture – until 1925, the eldest son inherited the land.

Per sterpes – line of succession
Per capita – per head

Restraints on alienation are disfavored.
Discourages improvements on land
You’d rather have $1,000 today than in a year from now.

E. Leasehold Estates, pp. 206: Problem 1 (p. 206).

1. O conveys to A for 99 years if A so long live.
a. A has a lease subject to condition subsequent
Couldn’t the 99 years also mean a life estate? How would we decide? The order of the words.

Chapter 6. Tradition, Tension, and Change in Landlord-Tenant Law.
A. The Leasehold Estates

Tenant – has the right to possess
-Term of years – lasts for a fixed period of time; no notice of termination necessary; can be terminated upon happening of an event
-Periodic tenancy – lease for period of fixed time; continues until L or T gives notice of termination; without notice, automatically extends for another period. Usually need month notice in month-to-month lease. Includes when L elects to bind a holdover tenant for an additional term.
Common law – ½ year was required to end a year-to-year tenancy; if tenancy less than year, notice of termination must be equal to that length of period, not to exceed 6 months.
-Death of L/T has no effect on duration of term of years or periodic tenancy, but does for tenancy at will.
-Tenancy at will – no fixed period; endures as long as both L and T desire; usually