Professor Evans Property I Outline Fall Semester 2012
I. Chapter 1. First Possession: Acquisition of Property by Discovery, Capture, and Creation
1. Property is a bundle of rights consisting of:
a. right to exclude (keep others out)
b. Privilege to use (landlord/tenant situation)
c. Power to transfer or otherwise dispose of property
d. Immunity from having property taken by government or others (government must give “just” compensation).
e. Immunity from harm to the property- rights can be disaggregated (separated)
2. Theories of Property
a. Labor Theory- First Proposed by John Locke . Suggests notion of common property, sufficient amout of labor has been given with one hands that one appropriates it to be theirs.
b. First Occupancy Theory- the first person to take occupancy or possession of something owns it
a. First Possession
a. Acquisition by Discovery
b. Acquisition by Capture
i. Rule of Capture- – property rights in wild birds, fish, and other animals are obtained only through physical possession. The first person to capture or kill a wild animal acquires the title to it. This does not apply to domestic animals.
ii. Mere pursuit is not enough to show possession (Pierson v. Post)
iii. Upon Kill, even if the animal, if not physically possessed immediately thereafter, it is still possessed (Ghen v. Rich)
iv. Where imminent possession exists, there is a pre-possessory interest (Popov v Hayashi)
v. Once an animal is sufficiently restrained in its movement (i.e. in a decoy pond) it is considered restrained (Kneeble v. Hackeringill)
vi. A person can recover against another for interfering maliciously with his ability to use his land for pleasure/profit.
c. Acquisition by Creation
i. Intellectual Property
1) One retains quasi-property rights in things like the news, when the distribution thereof is a lucrative commercial venture (INS v. AP)
2) With designer patterns (such as silk) the design is not given the same quasi-property rights as the news (Cheney Brothers v. Doris Silk Corp.)
3) Other designer items (such as scent) are not afforded the same protection (Smith v. Chenel, Inc.)
ii. Property in One’s Persona
1) The right of publicity is not limited to the appropriation of name or likeness (White v. Samsung)
2) One may be able to assert a property interest in their public persona, but this is strongly contested (white v. Samsung)
II. Right to include and Exclude
a. A property owner has the right to exclude anyone from their property for any or no reason (Jacque v. Steenberg). This right is so protected that punitive damages may be assessed to the violator thereof.
b. A property owner does not have the right to exclude government officials and services when said officials and services are there to aid and protect federal rights of tenants living on their land. (Jacque v. Steenberg)
i. Furthermore, A title to real property is not absolute. An owner’s right to exclude must be used in a way that does not injure others. Necessity, whether public or private, may justify entry into the lands of another without permission.
III. Subsequent Possession
a. By Find
o If Chattel is Lost
§ The Finder has absolute right to property against everyone besides the true owner or prior possessor (Armory v. Delamirie)
§ The finder of lost property has superior title against the owner of the land on which it was found as long as it is not embedded in the property. (Hannah v. Peel)
§ The finder retains his rights if he has made a good faith effort to return the item to its rightful owner (Hannah v. Peel)
§ The finder retains his rights if he finds the item in one’s property if the property is requisitioned by the government (Hannah v. Peel)
o If Chattel is Mislaid
§ When a chattel is placed somewhere intentionally, and forgotten, it is considered “mislaid” (McAvoy v. Medina)
§ When a mislaid object is found, the finder acquires no rights to it (McAvoy v. Medina)
o If Chattel is Abandoned
§ The finder is entitled to keep abandon property (Michael v. First Chicago Corp.)
§ When an actor takes significant but incomplete steps to achieve possession of a piece of personal abandoned property and is interrupted by the illegal acts of others, the actor ha
establish that they were there consistently based on the facts/situation. Occupation must continue without significant interruption.
4. Adverse and under a claim of right- All courts require that acts of adverse possession must be adverse/hostile.
i. Three approaches
1. Objective test: Adverse possessor’s state of mind is irrelevant
2. Good faith test: adverse possessor must believe in good faith that he owns the land.
3. Intentional Trespass- Adverse possessor must know that he does not own land and must intend to take title from the true owner.
ii. Claim of Right v. Color of Title
1. Claim of Right is a component of adversity or hostility. One way of expressing the requirement of hostility or claim of right on the part of the adverse possessor.
2. Color of Title is a claim founded on a written instrument or a judgment or decree that is for some reason defective and invalid. This is not required but it may prove helpful to adverse possessor.
iii. Things to stop the clock
· Infancy, Infirmity, Incarceration
• Stops the clock until the disability is removed
• No tacking of disabilities
V. The system of Estates
a. Freehold
i. Fee Simple Absolute
1. Has potential to last forever. Largest type of estate. Only used to describe real property.
ii. Fee Tail
1. Created by language of “heirs of his body…”
2. Has a potential limitation. Only lasts until bloodline runs out. Must have to account for some future interest.
3. Only accepted in: DE, RI, MA, Mass.
4. Where it is not accepted, it is handles as:
a. Void
b. Life estate to the first descendant, fee simple to the next
c. If A dies without issue, executory limitation
