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Property I
University of Toledo School of Law
Kennedy, Bruce M.

Professor Kennedy Property I Fall 2008

Ch1 First Possession
Bundle of Rights

right to use
right to own the fruits created by property
right to exclude
right to transfer (gift, sale, devise, descent)
right to compensation if state seizes property

A) Acquisition by Discovery and Conquest
Rule: Conquest is the taking of possession of enemy territory through force, followed by the formal annexation of the defeated territory by the conqueror. Discovery and conquest gives an exclusive right to extinguish aboriginal title of occupancy, either by purchase or by conquest. Natives are admitted to retain possession of land, and use it at their own discretion, but their rights to complete sovereignty is diminished, and their power to dispose of the soil at their own will is denied by the original fundamental principle, that discovery gives exclusive title to those who made it.
Purpose: For a rational system of titles, all titles must be able to be traced back to a sovereign.

B) Acquisition by Capture
Rule: The actual bodily seizure is not indispensable to acquire right to, or possession of, wild beasts; but that the mortal wounding of such beasts, by one not abandoning his pursuit, may, with the utmost propriety, be deemed possession of him; since, thereby, the pursuer manifests an unequivocal intention of appropriating the animal of his individual use, has deprived him of his natural liberty, and brought him within his certain control.

rule applies to wild animals as well as natural resources

They belong to the owner of the land, and are part of it, so long as they are on or in it, and are subject to his control; but when they escape, and go into other land, and come under another’s control, the title of the former owner is gone.

Purpose: For the sake of certainty, and preserving peace and order in society.

Ratione Soli: Landowners are regarded as prior possessors of any animals on their land, until the animal has taken off.
Although not all economic interests are property, common law will protect non-property economic interests. That is, common law protects business from the interruption of production cycle, from conducting business.
In industries such as whaling, custom and usage may be observed by the courts in cases where if the strict rule of law was followed that branch of industry would cease.

C) Acquisition by Creation
Rule: First in time, first in right- If you create something, if in that sense you are the first in time, then that something is most certainly yours to exploit. common law protects unfair interference of the development of a product, but imitation is allowed.

In the absence of some recognized right at common law, or under the statutes, a man’s property is limited to the chattels which embody his invention. Others may imitate these at his pleasure.
you can use the original products name to draw attention to your own product

Purpose: To exclude others from the enjoyment of a chattel is one thing; to prevent any imitation of it, to set up a monopoly in the plan of its structure, gives the author a power over his fellows vastly greater, a power which the constitution allows only congress to create.
Public Policy: The imitator, by taking his free ride, serves an important public interest of offering comparable goods at lower prices. The public as a whole may be better off, as long as this freedom to imitate does not destroy the incentive for people to come up with new devices.


The news is regarded as quasi property, and is protected as property from unfair competition in business between news agencies themselves, but not protected as property from the general public.
the right to exclude is an important, if not the most important bundle of rights, but it is not absolute and does not trump other rights. It has long been true that necessity, private and public, may justify entry upon the lands of another.

Ch 2 Subsequent Possession
A) Acquisition by Find
Finders rights
Law of Finders: The finder, though he does not acquire absolute ownership, has a good possessory title better than the rest of the world except for the true owner.
Finder Definition: a finder must have an intent to control the property, and an act of control.

unlawful possession is not dominion, in that case you only have custody which is short of possession.
the law of finding involves relativity. In a suit between a first finder and a second finder, the first finder wins.

Public Policy: The dominant concern of the law of finders is to protect the true owner.
I. Lost Property

finder v. landowner in a public setting. Finder wins. Bridges p. 113

Rule: The lost item, being dropped in the public part of the shop, was never in the custody of the shopkeeper, or within the protection of his house.

finder v. landowner (non-public setting). Landowner wins. Sharman p. 115

Rule: The possessor of land is generally entitled, as against the finder, to chattels found on the land. The possession of land carries with it possession of everything which is attached to or under the land, and in the absence of a better title elsewhere, the right to possess it also.
Note: A man does not necessarily possess a thing which is lying unattached on the surface of his land even though the thing is not possessed by someone else.

finder v. non-possessory landowner. Finder wins. Hannah v Peel p. 111

The non-possessory land owner never has possession of the lost item.

employee finder v. employer.

Employees lose if finding is within work duties. If a man finds a thing as the servant or agent of another, he finds it not for himself, but for the other.
Employees win if not within scope of employment.

landlord v. tenant. Landlord wins. Elwes p. 116

The landlord gets it by virtue by the fact that he is the landlord, and has a better property interest. Landlord has title, tenant has possession.

finder v. stranger. Finder wins. Armory p. 108

Rule: The finder of property has a good possessory title better than the rest of the world except for the true owner.
Note: In a suit between a first finder and a second finder, the first finder wins.

II. Mislaid Property
Definition: Mislaid property is property voluntarily and intentionally placed by the true owner with intent to retain ownership but fails to reclaim it. Unless you can prove that it is mislaid, the presumption that the courts will make is that it is lost property.
Rule: The finder of property acquires no right to mislaid property. There is a distinction made between property placed by the owner and neglected to be removed, and lost property. A finder does not acquire the right to take the property from the shop, but it is rather the duty of the shopkeeper, when the fact becomes thus known to him, to use reasonable care for the safe keeping of the item until the owner should call for it. The finder thus acquires no original right to the property, and the property owner’s subsequent acts in receiving and holding the property does not create any.
Public Policy: the shopkeeper ought to be preferred to the customer, as in that event the article would be more likely to get back into the possession of the real owner.

III. Abandoned Property
Definition: There must be intent on the part of the old owner to relinquish his right title and interest to the property, and to have that intent manifested by some action
Rule: The

defective (no witnesses, not notarized). The claimant constructively possesses all the land described in the deed, even if the claimant doesn’t actually possess it.
c. purpose: to strengthen a weak document.
ii. Exclusive means that you are not sharing possession with the true owner or the public.

Hostile, adverse under a claim of right.

a. Hostile
iii. It means that you are possessing the property without the owner’s consent.
iv. Purpose: to prevent the true owner from being lulled into losing his rights.

b. Claim of right
v. what kind of quality of possession must occur for it to be deemed adverse:
1. objective test
a. The state of mind of the adverse possessor is irrelevant.
2. subjective test
a. the good-faith standard
b. One must enter upon the land claiming in good-faith the right to do so.
3. aggressive trespass test
a. Maine doctrine. Not used anymore. “I know this is not my property, but I will take it anyway.”
c. Color of title
vi. Refers to a claim founded on a written instrument (a deed, a will) or a judgment or decree that is for some reason defective and invalid (as when the grantor does not own the land conveyed by the deed or is incompetent to convey, or the deed is improperly executed).
vii. Color of title was not required by English law and is not required in most American jurisdictions.
viii. NOTE
1. In a few states, color of title is essential to acquiring title by adverse possession.

open and notorious

a. Purpose: to impart reasonable notice to the owner.
b. Generally, where possession of the land is clear and unequivocal and to such an extent as to be immediately visible, the owner may be presumed to have knowledge of the adverse occupancy.
c. If the true owner has presumed knowledge of the adverse possession it is enough. If the use is visible, it is a presumption that the owner knows. Actual notice is not required.
ix. EXCEPTION: slight encroachment in a boundary dispute requires actual notice.
d. The use does not have to be more intensive than a true owner would make it. Examples of open use: if adverse possessor grants rights to some but denies to others, brings a trespass action, leases property, pays taxes.

continuous and uninterrupted

a. Continuous means that the adverse possessor is not ousted from property, nor does he abandon the property. Continuous use also means continuous as a true owner would use it.
b. If it is a summer home, the adverse possessor need not be there year-round.
a. Rule: It is not necessary that the occupant should be actually upon the premises continually. If the land is occupied during the period of time during the year it is capable of use, there is sufficient continuity.
a. Tacking:
x. The adding up the time blocks of prior possessors to show adverse possession.
xi. Requires privity of estate: any voluntary transfer of one adverse party’s possession to another.
xii. If one tenant ousts another, this is not privity
xiii. The purpose is to support the stability of land titles.