Select Page

Property I
Vermont Law School
Loder, Reed Elizabeth

Vermont Law
Reed Loder
Spring 2016
Fundamentals: What is Property?
“Property is the relationships formed between people and things”~R.L.
Introduction & Errata
Real v. Personal Property
Real Property = land and things attached to the land (buildings, trees, minerals, etc.)
i. main focal point of this course
Personal Property = all property that isn’t real property. (Further divided into two categ.)
Chattels: tangible items.
Intangibles: (i.e. bank accounts, intellectual property, insurance policies, etc.)
Bundle of Rights = the largest quantum of ownership, included:
Right to Possess (Pierson v Post)
Right to Transfer (Moore v. UC Regents); *Right of Alienation*
Right to Use (Desmetz Article)
Right to Exclude (State v. Shack)
– These rights are limited and not absolute –
Title (roughly translates to ownership)
a. Affords the power to transfer (allows one to dispose of property: give it, will it, sell it, etc.)
Policy and Property
Normative v. Descriptive View of Property
Bailments – created when one person gives temporary possession of their property to another
Acquisition by Discovery/Conquest
GR= First in time; A person who first captures otherwise unowned resources is entitled to the resources. (Whomever is prior in time wins. A prior possessor prevails over a subsequent possessor.)
First in time = basic notion of property law.
Legal Doctrine & Instrumental Ends:
Precedent- promotes productivity
Possession- protects expectations
First in time, ownership- promotes certainty & predictability
Ownership is title; legal right to property
Possession is proven by showing physical control and the intent to exclude.
a. Possession is easier to prove than ownership
Constructive possession: a person is in constructive possession when the law treats them as if they were in possession although they are not or are unaware of it.
Why the law protects possessors:
Possession is an efficient way to prove ownership
Protecting possession preserves peace and order by preventing a stronger person from ousting a possessor.
Protecting possession facilitates trade
Gives effect to the expectations of a person who has asserted a right in a thing.
In the case of capture of wild animals, it rewards persons from making a useful item available to society.
Possession is an easy & efficient way of allocating resources
Johnson v. M’Intosh (1823): Title given to first “civilized” occupiers of land based on “first in time” principle; discovery vests title; justified by Locke (nomadic Indians didn’t blend labor with land) and English tradition; right of occupancy is granted to conquered people, but not right of title to dispose of land [conflict between two people with title to land, one from govt land grant the other purchased from Indians; held, Indians did not have title and therefore could not covey it]  
Property as Capture & Custom
Capture (Manucaption)
Rule of Capture= a wild animal (ferae naturae) on unowned territory (terrus nullius) is a thing belonging to no one (res nullius) that becomes personal property through the capture (manucaption) or acts of sufficient possession.
One must have actual possession, or else constructive possession by inflicting a mortal wound; pursuit does not vest title.
Pierson v. Post (1805), one hunter was pursuing the fox when another hunter shot it; hunter who shot the fox had possession.
“mortal wound” approach: (1) is objectively likely to deprive the fox of his natural liberty; (2) shows a subjective “manifest intention” to seize the animal (i.e. not just for the enjoyment of the chase)
“socially useful enterprise”: majority accepts that killing foxes is a socially useful enterprise; dissent elaborates that it protects activities of chicken farmers (wants to protect pursuit as possession to encourage more hunting; intruder should not gain

he animal
O has a claim against both T & T1 for return of the animal
The party with superior title has a claim against all who have an inferior title.
Rule of Increase: if a domesticated female animal goes onto a neighbor’s property, takes up with a neighbor’s animal, baby belongs to female animal’s owner.
Wild Animals
Wild animals with a habit of returning – these animals continue to belong to the captor while they roam at large.
Escaped wild animals – the captor loses possession of these animals if they do not have a habit of returning.
Fugitive Resources
Oil & Gases: under Common Law they are attributed the elements of wild animals bc of their fugitive nature. Gases that are part of another element are considered to be part of that element.
Underground Storage: The rules of trespass don’t generally extend to underground storage. The idea is that the underground storage does not interfere with the owner’s use of the land.
Surface Water Rights: (Western states); subject to first in time (aka prior appropriation); the person who first appropriates (captures) water & puts it to reasonable and beneficial use, has a right superior to later appropriators.
English Rule: a landowner over an aquifer could freely draw from it without regard to the effect on neighbors. (Rule of Capture).
American Rule: rule of reasonable use, is also a modified rule of capture, but it says that wasteful uses of water are unreasonable and therefore unlawful
Modern Rule: extraction is generally governed by legislative & administrative programs.