Property Outline – Professor Lynn E. Blais
University of Texas School of Law
Fall 2014
Textbook: Property (Aspen Casebook), 8th Edition, Dukeminier, et. al
GENERAL PRINCIPLES
Means of Creating Property Rights
· Discovery
· Capture
· Creation
Basic Property Concepts
· Chain of Title
o Validity of the current claimant depends on them being able to trace their claim to a person with a superior claim
o Only as good as the weakest link; cannot convey what can’t prove you have
· Severability of Title
o Property is a bundle of rights, having title does not necessarily mean get all
o Rights include: (1) alienability (right to convey), (2) use and enjoy, (3) exclude, (3) devise, (4) inheritability, (5) possess
· Relativity of Title
o Your claim of title depends on who is claiming against you
o Your right to property will be define by the claims of other parties
· Possession
o Matter of law, not a statement of fact
o In determining what constitutes, some acts count for more than others (i.e. fencing, alteration of land, allowing visitors)
· Sources of Prop Rights
o Sovereign (state created rules)
o Agreement (rights created by private actions)
o Natural law: more general/abstract principles, occasionally used
o Positive law: most often used
CAPTURE
· Wild Animals
o General Rule: To gain a property right to a wild animal, you must capture, kill, or reduce it to certain control by mortally wounding with continued pursuit (Pierson v. Post)
§ Reason: limits property disputes because high degree of certainty who is in possession
§ Custom = Reasonable prospect notion, flows from the contrary approach to let the local rule prevail because likely to be most fair solution
· Reasonable prospect: if you have a reasonable prospect of capture, have possession à rejected by court because easier to use bright line rule of capture
o Rule v. Standard:
§ Rule = simple, bright line means of application, enhances clarity and ability to negotiate
§ Standard = allow multiple factors to be taken into account, provide for a more fair and flexible solution
o Alternate Rule: First to reduce animal to certain control
§ Constructive possession – person who marks animal that’s time of death after being mortally wounded in uncertain (i.e. whales) has claim, although not actually in possession/in pursuit (Ghen v. Rich)
· Even if no actual possession, legal fiction which gives individuals ownership of things on their land
· Increases investment, defeat claims to objects on the land made by trespassers
· Reason: This industry needed rule different than the general in order to survive, had been the practice for many years and could be certain who killed (less ambiguity)
§ No malicious intervention of trade – a person cannot maliciously interfere with another person’s livelihood, because socially beneficial activity, if do then owe damages (Keeble v. Hickering)
· Decoy duck pond – neighbor cannot intentionally/maliciously scare off, can create own
· Competition is okay, malicious actions are not
· Ratione soli: as long as on your land, they are yours – want to promote trade
o Hypo: geese migrating, yours to kill as long as on your land
· Natural Resources
o General Rule: no one general rule, all courts historically said different things at different times, rule of capture usually does not apply in US (exception: water in TX)
§ When ROC applied to natural resources, encourages premature development, rations poorly, denies citizens the ability to store water underground
§ Reasonable use standard – other way to treat resources
o Previous Rule: if inject gas back into underground reservoir, rule of capture applied so no person had possession yet, no trespass (Hammonds v. Central Kentucky Gas)
§ Those with natural resources below them have the right to extract, but they do not come into possession until they are extracted
§ Similar to how reasonable prospect does not hold with respect to animals, must bring under possession
§ CURRENT: most states say that when re-inject oil company still owns because have refined, would be a trespass (no ROC)
o Tragedy of the Commons: when common ownership causes privately efficient behavior to become inefficient, incentive to take as much as can (socially inefficient)
o To prevent a tragedy of the commons, need:
§ Negotiation and agreement – leads to (1) transaction costs, (2) policing and enforcing, (3) strategic bargaining [how to know in good faith, may have holdouts/free riders]
§ Regulations – set limits so cannot impose a cost, must have enforcement
§ Private ownership – internalize all costs, more socially efficient
o Externality: cost or benefit of a market transaction that affects individuals outside of the market making the transaction
o Riparian Rights: usually found where water is abundant, each owner of land by a water source has right to that source, subject to other’s rights along that same source
§ Each owner of land has a right to use water on it
§ Problems: take little account of relative productivity of resources
o Legislature should change, not the court (Sipriano v. Great Springs)
§ Common law rule for groundwater: Rule of Reasonable Use, have the right not to be harmed by other’s use of water, but low standard of reasonable use:
· Can’t take water maliciously
· No wanton and willful waste
· No negligent withdrawal
§ Institutional Competency: Even though original reasons for using rule (secret movement, damage society) no longer apply, the court said it is for the legislature to decide, public policy to make choice for all, not just two parties in the suit
Ways to gain:
(1) Finders
(2) Adverse possession
FINDERS
· General Rule: Finder has a superior claim against the whole world, except a prior possessor or true owner (Armory v. Delamirie – found the jewel, as finder have relativity of title against goldsmith)
o First in possession/first in time
o True owner depends on who other claimants are, possession is 9/10 of the law
§ Reason: preserve social order, if had first do not want someone to take away from you or have to prove you are the true owner (protecting possessors)
· Lost v. Mislaid
o General Rule: finder has the right to lost items, while the owner of the locus in quo has the right to mislaid items (McAvoy v. Medina)
§ Mislaid = intentionally separated at the time separated from the owner
· Reason: more likely the owner will go back for it, better off to be with OLQ
· Creates involuntary bailment, shop owner holds for TO
· Finder has no rights to the property
§ Lost = unintentionally separated, better off to give to finder
· Reason: less likely the true owner will come back
o Question: when is it too late to come back à True owner v. AP, shift in who we protect
§ Leads to stale evidence
§ Finder/AP becomes invested in property over time
§ Lack of action à TO not diligent/interested in getting back
· Why does the finder have a property right?
o The rule makes it impossible to distinguish between a thief and a prior finder, okay bc don’t want the courts in the business of determining the character of a
)
§ South Stafford Water Co. v. Sharman: distinguished when pool boy found two rings, claimed finder à homeowner wins (everything on prop belongs to homeowner, and everything servant finds à owner)
§ Elwes v. Briggs Gas Co: lessor of mines found boat underground, had been there for centuries à land owner wins (inherently part of the land, although owner = not know of existence)
ADVERSE POSSESSION
· General Rule: A finder/possessor can gain title to property if the full time of SOL has run +meets common law elements
o (1) Actual possession: marks beginning
o (2) Adverse: without permission of TO
§ Cannot adversely possess land you have the right to be on
§ Co-tenants = ouster
o (3) Open and notorious: not sneaking around
o (4) Exclusive: using like a TO, tell people cannot come on
§ Cannot share land with the actual TO
o (5) Continuous and uninterrupted: as TO would use
o (6) Under claim of rights
§ Objective standard: state of mind irrelevant, SOL
§ Good faith standard: “I thought I owned it”
§ Bad faith standard: “I knew I didn’t own it but intended to make it mine”
Spectrum of Privity in AP
0 I————————-I—————————–I—————————–I————————I 100%
2 agg tres. no color of title/ deed to part of color of completely correct
– never met no contract/deed, property title deed
but privity like Howard
· Special Circumstance:
o Color of title: written document that is defective for some reason, reasonable belief that own property
§ Ultimately in good faith, so shorter statute of limitations
§ If only use part of the land, can still get entire land under COT if AP granted (constructive possession)
· UNLESS someone else has possession of another part of the land, then just what AP
§ Usually because did not comply with SOF or incorrect description of parcel of land
o Tacking: (Howard v. Kunto): Taking allowed if ha a close personal relationship (reasonable)
§ EX: passing the title which was incorrect, use for many years; does not matter that current owners have not met the SOL
o Seasonal Use: (Howard): if using as the TO would (winter/summer home) constitute as continuous possession
· Statute of Limitations:
o Personal property: 5 years
o Special Circumstance Land: 10 years
o Land in general: 20 years
· AP Arguments:
o Arguments for AP:
§ Don’t want land to be wasted, encourages productive use
· Penalize TO for sleeping on his rights
§ Attachment to land you are on
§ Cost to occupier to make sure title not defective
§ Difficulty with evidence after time
o Arguments against AP:
§ Trespass encourages, overuse encourages
§ Overinvestment in security if do not use land much
§ Harm industries that leave land alone (timber, investment)
§ Encourages squatters
