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Property I
Vermont Law School
Echeverria, John D.

Spring 2016
I.                   Discovery
a.       “Sighting or finding of unknown or uncharted territory; it is frequently accompanied by a landing and the symbolic taking of possession.” Gives exclusive title to those who discover. Native titles not recognized.
b.      Different from Conquest
Conquest involved taking possession through force, followed by formal annexation of the defeated territory by the conqueror. Required armies, manpower, resources, and constant vigilance to patrol conquered territory. American settlers didn’t have that so they obtained land through diplomatic treaties and doctrine of discovery.
c.       Johnson v M’Intosh (CB 3)
II.                Capture
a.       First person to exercise dominion over unowned property/wild animal becomes rightful owner.
b.      Pierson v. Post (CB 18)
                                                              i.      Issue: Whether plaintiff exercised dominion over a wild animal when he actively pursued the animal, but didn’t catch it or wound it.
                                                            ii.      Reasoning: Wild animals are unowned property before capture. Mere pursuit is not enough to exercise dominion. Actual possession of an animal suffices as exercising dominion over it.
c.       Ghen v. Rich (CB 26)
                                                              i.      Issue: Whether plaintiff exercised dominion over a whale when he mortally wounded it and marked it (with a spear) as his own as is custom in the whaling industry.
                                                            ii.      Reasoning: A person can exercise dominion over an animal by mortally wounding it. Business customs have more weight than sporting customs.
d.      Keeble v. Hickeringill (CB 30)
                                                              i.      Issue: Whether the plaintiff had constructive possession over wild ducks that entered into his decoy pond.
                                                            ii.      Reasoning. Courts might be more inclined to favor a rule that is disadvantageous to a malicious person.
                                                          iii.      Constructive Possession: person may have a legal right to an animal if they mortally wound it and continue in pursuit, by depriving the animal of its natural liberty (decoy pond, fishery, trap), or if the animal is on the person’s property (criticized).
III.             Adverse Possession
a.       Entry that is actual and exclusive, open and notorious, continuous for the statutory period, and adverse hostile and under a claim of right.
b.      Entry required because it starts the clock for the adverse possessor’s claim, triggers the trespass statute, and creates a cause of action that the landowner could use to eject the adverse possessor.
                                                              i.      Actual Entry: must establish a physical presence on the true owners land; owner would have a claim for trespass
                                                            ii.      Exclusive Entry: must take steps to exclude others
                                                          iii.      Van Valkenburgh v. Lutz (CB 150)
a.       Issue: Whether appellant’s use of land (walking across unused land often and cultivating a small garden on the corner of the property) constitutes adverse possession of the land.
b.      Reasoning: Proof fails to establish actual occupation for such a time or in such a manner as to establish title by adverse possession. The premises were not protected by a substantial enclosure and there is no proof to show that cultivation incident to the garden utilized the whole of the premises claimed.
c.       Open and Notorious Entry & Possession penalizes the negligent and dormant owner for sleeping on his rights. Use must be so visible that reasonably attentive landowner would notice that someone was staking a claim to the land. This element is to
a.       Visible and Noticeable: Can’t hide underground or take steps to conceal use of property. Examples: build a house or barn, erect fences, cut down trees, diss a field for gardening, have lights on at night, etc.
b.      Reasonably attentive landowner standard: Puts pressure on landowners to survey their property regularly. Requires landowner to check on his lands with regularity.
c.       Staking a claim: Must indicate that they are attempting to claim the land as their own. Examples: build a fence, fish or hunt on the land, take natural resources off the land, build a home or road, etc.
d.      Continuous for the statutory period: Must continuously be on the land as an average true owner would given the nature of the property for the statutory period. Continuous does not necessarily mean constant. Can come and go in the ordinary course given the nature of the property.
a.       Continuous use: adverse possessor must use the land continuously. So think about what the adverse possessor was using the land for. Was he/she building a home? Does he/she live on the property? Does he/she farm the land?
b.      For statutory period: must use property continuously for the statutory period. Statutory period governed by state statute. No adverse possession on federal lands. Interruptions restart the clock.
c.       CAUTION: future interests coupled with adverse possession rights. If adverse possessor starts adversely possessing land prior to execution of will or death of testator, then the clock runs on all possessory and future interests. If adverse possessor starts adversely possessing land after execution of will or death of testator, then clock restarts for every future interest that follows.
e.       Adverse, hostile, under a claim of title, or under a claim of right
                                                              i.      Only looks at outward manifestations to determine if his or her use of the land was without the true owner’s permission or against the true owner’s rights.
                                                            ii.      Three views on adverse requirement
a.       Good Faith Approach: Adverse Possessor thought that he/she owned the land. Either has color of title or faulty deed or encroached onto another’s land thinking it was his/her land.
b.      Bad Faith Approach: Adverse possessor knew that the land was not his/hers but didn’t care. He/she decided to take possession even though the land didn’t belong to him/her. This is an aggressive trespass standard
c.       State of adverse possessor’s mind is irrelevant
f.       Non-element points of importance
                                                              i.      Color of title: claim founded upon a written instrument (deed/will) or a judgment or decree that for some reason is invalid or defective.
                                                            ii.      Claim of title: one way of expressing the requirement of hostility or claim of right on the part of the adverse possessor. Claims that the land is his in a physical or verbal manner.
                                                          iii.      Tacking: purchaser may take the adverse use of its predecessor in interest to that of his/her own where the land was intended to be included in the deed between the parties but was mistakenly omitted from the description. The deed running between the parties purporting to transfer the land possessed traditionally furnishes the privity of estate, which connects the possession of the successive occupants. Difference between squatter and property purchaser. If several property purchasers have title and use the land following all adverse possession rules, and are in privity, tacking is allowable.
                                                          iv.      Howard v. Kunto (CB 170)
a.       Issues: (1) Is a claim of adverse possession defeated because the physical use of the premises is restricted to summer occupancy?        (2) May a person who received record title to tract A under the mistaken belief that he has title to Tract B (immediately contiguous to Tract A) and who subsequently occupies Tract B, for the purpose of establishing title to Tract B by adverse possession, use the periods of possession of tract B by his immediate predecessors.
b.      Reasoning: (1) Summer occupancy only of a summer beach house does not destroy the continuity of possession required by adverse possession. The occupancy of tract B during the summer months for more than the 10-year period by the Appellant and his predecessors, together with the continued existence of the improvements on the land and beach area, constituted uninterrupted possession.(2) Successive purchasers who receive record title to tract A under the mistaken belief that they were acquiring tract B, immediately contiguous thereto, and where possession of tract B is transferred and occupied in a continuous manner for more than 10 years by successive occupants, have established sufficient privity of estate to permit taking and thus establish adverse possession.
                                                            v.      Boundary Disputes
a.       Mannillo v. Gorski (CB 164)
1.      Issue: (1) Whether an entry and continued possession under the mistaken belief that the possessor has title exhibits the requisite hostile possession to sustain the obtaining of title by adverse possession? (2) Whether the Defendant’s acts meet the standard of open and notorious?
2.      Reasoning: A mistaken belief that the land in possession is the possessors land will satisfy the hostility requirement. If the encroachment is upon a common boundary and is only minor, the factors of open and notorious will not be satisfied unless the true owner of the property knew about the encroachment. Can’t punish the landowner as sleeping or dormant when fact of intrusion is not clearly evident to the naked eye, but instead requires a survey for disclosure. Such cases don’t meet the open and notorious requirement unless the true owner has actual notice.
3.      Maine Doctrine (mostly abandoned): adverse possession can’t be bottomed on mistake.
b.      Boundary disputes may be resolved in three ways:
1.      Doctrine of agreed boundaries: if there is uncertainty between neighbors as to the true boundary line, an oral agreement to settle the matter is enforceable if the neighbors subsequently accept the line
2.      Doctrine of acquiescence: long acquiescence evidence of an agreement between the parties fixing the boundary line even if shorter than statutory period
3.      Doctrine of estoppel: when one neighbor

means that a person is born and identifiable. A condition precedent means that there is a condition that must be met before the future interest can become possessory (other than natural termination of previous estate). For example, O to A for life, then to B if B has graduated from Medical School. If A dies before B graduates, then B doesn’t get the possessory interest and O gets a Reversion.
b.      Vested Remainder Subject to Open: estate is given to a class of people “to A’s children” – as long as one child is born – this remainder becomes vested – but the number of people to whom this estate to go could possibly increase if A has more children. So it is subject to open.
c.       Vested Remainder Subject to Close: If grantor conveys to A’s children and A dies – A cannot have more children so the estate is subject to close.
d.      Vested Remainder Subject to Divestment: When a vested remainder is burdened by an executory interest that could prevent the vested remainder from becoming possessory, then the vested remainder is subject to divestment.
e.       Contingent Remainder: if a remainder for whatever reason is not vested. If a remainder holder is not born, identifiable, ascertainable, or if there is a condition precedent, then the remainder is contingent.
1.      Example: O to A for life, then to A’s first child. A has no children at the time of the will/deed. Since A has no born children, the future interest to A’s children would be contingent.
2.      Example: O to A for 5 years, then to the winner of the 2018 state lottery. Since there is no way to know who will win the lottery, the remainder holder is not ascertainable, thus not vested.
3.      Example: O to A for life, then to B if B has married. If B is not married before A dies, then B’s future interest does not become possessory. Requiring B to be married for the estate to become possessory is a condition precedent – B must marry before A dies to get estate.
f.       Alternative contingent remainders (careful)
1.      Example: O to A for life, then to B if B is 50 or in the alternative to the Baylor Medical Center. In this situation, B’s remainder is contingent upon whether B is 50 before A dies. If B is not 50 upon A’s death, then B’s future interest does not become possessory and instead goes to Baylor Medical Center. This is different from an executory interest. In this situation, BMC also has a contingent remainder, they have to wait patiently for A to die and see whether B is 50. They cannot interrupt A’s estate and if B isn’t 50, then BMC automatically gets the land. Doesn’t transfer to B first if B doesn’t meet the condition – it either goes to B or BMC depending on the circumstances.
                                                          iii.      Can Interrupt Previous Estate
a.       Executory Interests can follow any estate (fee simple, life estate, term of years).
1.      Following a determinable estate: Example: O to A until B marries, then to B. A has a possessory interest in a fee simple determinable. When B marries, B can interrupt A’s fee simple determinable estate and take possession of the land through B’s executory interest. B’s executory interest would become a fee simple absolute when B takes possession since there were no added limitations.
2.      Executory interests following a ‘subject to’ estate: Example: O to A; however if B marries, then to B. A has a possessory interest in a fee simple. That fee simple has language “however” which signifies that the estate is subject to a condition subsequent. In this case, since the grantor gave B, another grantee, the right to take possession over the estate when B marries, B has a future interest as an executory interest. Since B’s interest limits A’s estate, A’s fee simple would be subject to an executory limitation. The wording changes. For the purposes of Professor Echeverria’s class, if a possessory estate is burdened by an executory limitation – regardless of whether it is technically determinable or ‘subject to’ – call it an estate subject to an executory limitation.
b.      Springing and Shifting Executory Interests
1.      Springing – follows estate in the grantor
2.      Springing – from grantor
3.      Shifting – following estate in a grantee
4.      Shifting – from grantee