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Majority holding: Mere pursuit is not sufficient for “possession.” First “possession” of that which is not previously owned = ownership. Possession First in time, first in right.
Persuasive precedent: Mortal wounding by one who has not abandoned pursuit may be sufficient to establish possession.
Dissent: Labor theory argument - Post put in his time & effort so should get it; also encourages looking at custom and usage of hunting practices
Popov v. Hiyashi: (Barry Bonds baseball) Popov made contact with ball but intentional interference from crowd; when he dropped it, Hiyashi (not a wrongdoer) picked it up.
Majority holding: Taking significant steps to possession but having those efforts interrupted by unlawful actions of others established a pre-possessory interest that will be protected from a subsequent legitimate claim. Fairness principle determined that Hiyashi (who had actual possession) should get something too. Split the profit.
Ghen v. Rich: Ghen shot whale with bomb-lance, sank to bottom & found 3 days later by Ellis. Sold to Rich. Ghen gets the whale.
Majority holding: Custom & usage applied as rule. Ghen followed customary whaling practices (did everything possible in the situation to “possess” this type of whale) and Ellis/Rich knew or should’ve known those customs. Not against public policy b/c limited application.
(1) they can change, and
(2) one aspect of society is privileged over others.
Society’s recognition of property rights changes over time to reflect societal interests.
dominion and control over object/land not physically held
Owner has constructive possession or the pretense of occupancy to all that is upon his land or in it without actual capture.
Title to property compared to someone else’s title in same property. You don’t have to own the property to have relatively better title than someone else.
Ask: As between these individuals, who has the better title to the property?
Courts use rules by analogy to deal with new issues that arise.
possession of that which is not previously owned gives ownership,
Make your argument by analogy to rules set out for wild animals - argue all (first possession, pre-possessory interest, constructive possession, custom & usage)
NOTE: exceptions where individual uses right in excess or commits trespass
If wild animals escape from the possessor, he loses all property rights
Must maintain dominion & control
(exception to escape rule) possessor does not lose rights if the animal has a tendency to return -- policy to encourage domestication of animals
Must show that animal is sufficiently domesticated
Must be able to give some form of notification to 3rd parties
property interests in offspring go to the owner of the mother
Certainty - always know who the mother is but father uncertain
Custom - mother takes care of the offspring
Public policy - rewards breeding & productivity
“one of the most essential sticks” in the landowner’s bundle of rights (S. Ct.). Fundamental but not absolute. Enforced through action in trespass.
Majority holding: A man’s right in his real property is not absolute - he cannot use it to injure the rights of others. Permission and necessity/consent, and governmental workers are exceptions to the right to exclude.
HYPOTHETICAL: abandoned building squatters in winter - “disadvantaged segment of society” and may be better use than sitting vacant, but distinguished b/c they are trespassers. Right to exclude still valid (and owner must exclude to avoid AP)
consent (owner gives permission)
Civil rights legislation prohibiting discrimination
Limitations on rights of landlords to evict tenants
Doctrines granting public access to private beaches & other private lands
federal or state constitutional provisions
*civil rights legislation prohibiting discrimination
limitations on rights of landlords to evict tenants
exclusion of public from access to enjoyment/use of resources
Madonna example: statutory “right to roam” privileging the right of public to enjoy the countryside over rights of property owner to exclude
Hypothetical: Landowner v. trespassor who hunts an animal
Landowner has “constructive possession” of the animal, as the law has created an exception to the Post v. Pierson. Because society has an interest in deterring trespassers and self/help, also we want to encourage productivity and discourage expense in unnecessary protection.
Trespassor B takes emu from trespassor A
Who has relatively better title? Trespassor A has better title, because of the same policy reasons as listed in the hypo above.
[DK, p.33, n.1]
quasi-property interest in animal, as long as the property “animal” is ensnared owner has interest in animal, however when the animal escapes, you lose the property rights.
that an animal who is trained/tamed and who returns at night, the possessor will not lose the property interest. A third party might have notice that that animal has a property interest. What might give a third party notice? A tag; the way the animal acts; or the way it is fed.
Justifications: for the rules see carol west
Hypo: Otto owns several bulls. Next door neighbor (Flanders) owns several cows. Who owns the calf of a cow that is owned by B, and potentially fathered by A.
Rule of Increase: A universal rule of developed capitalized societies who have property rights that when an off spring is born it becomes property of the mother.
Justifications: (1) mother is in the best position to care for the calf; (2) aspect of certainty (Pierson v. Post) as to who the father is; and (3) the is a labor aspect as to caring for the calf until it is born.
What “Rights” does property “ownership” provide?
· Rights to possess/occupy
· Right to exclude * one of the most fundamental rights
· Right to use
· Right to the income
· Right to consume
· Right to destroy
· Right to transfer (alienate)
The bundle of sticks don’t always have to stay together: leasehold agreements, restrictive covenants, etc.
§ Societal interests, can K rights, allowing the landlord in (exclude)
§ Zoning restrictions (use)
§ Renting a piece of property (income)
§ Burning fire wood/ right to destroy (Right to consume)
§ Societal interest in preserving economic value of property/interest of the beneficiaries (decedent v. beneficiaries) – right to destroyWho you can/cannot sell property to – constitutional limitations; Fair Housing Act in regard to leasing (right to transfer/alienate)
Right to Exclude: USSCOS “one of the most essential sticks” in the landowners bundle of rights
Common Law - Blackstone’s time: right to exclude is not absolute (consent/necessity – boat’s caught in a storm and tie up to a dock, societal interests in protecting lives over property)
Trade-offs in protecting right to exclude:
· Exclusion of public access to enjoyment/use of resources.
· The Madonna Example:
o Statutory “right to roam” – privilege the right of public to enjoy the countryside over rights of property owner to exclude. [Anderson, “Comparative Perspective on property Rights: The Right to Exclude”]
When we accept this right to exclude we are limiting the rights that the general public has to access property.
Jacques v. Steenberg Homes, Inc. - intentional trespass for delivering mobile home across Jacques’ property; fined $30 for criminal trespass but went across their land anyway. Argued that no actual harm so no punitive damages could be imposed (Barnard rule).
Majority holding: Barnard rule does not apply. The intentional trespass is the actual harm (it harms a property owner’s right to exclude), so where nominal damages are awarded in intentional trespass claims, punitive damages may be awarded at discretion of the jury. Right to exclude is hollow without legal means to protect it.
Individual interests: right to exclude is harmed, without a legal means to protect it. Right to exclude should be validated, and preserved.
Counter-argument: is a risk/benefit analysis and economic
Discourages trespassers (series of trespasses can threaten ownership - AP) – integrity of the legal system
Prevents self-help justicePrevents over-investment in security measures
PROPERTY RIGHTS ONLY EXTEND AS FAR AS THE SOVEREIGN IS WILLING TO RECOGNIZE -- WHICH IS DIFFERENT IN DIFFERENT SOCIETIES
a. property that is lost when the owner unintentionally and involuntary parts with it.
a. Mislaid property:
property is abandoned when the owner knowingly relinquishes all right, title, and interests to it. Typically will not be a thing of value.
The lost – mislaid distinction.
D contends that his interest is just as valid as the sweep does, as he is the last to occupy/possess. The Sweep is acting as a bailor on behalf of the bailee – A bailment (p. 99, FN, 2). “the title of the finder is good as against….” The finder has relatively better title than everyone, but the true owner OR prior possessor. [DK, p. 100].
we determine the classification of the property as: lost, mislaid, abandoned, or treasure trove property, by looking to the acts of the true owner at the time the property was left.
Finder vs. Owner/occupier: generally, owner has constructive possession of all that is on his land, so he has prior possession -- discourages trespassing to look for items of value. (Distinguished here because he never occupied the house).
Superior title goes to the finder. The court in Hannah states that the finder wins, as the finder of lost property, even in another’s house will have relatively better title, pursuant to the bridges’ rule. As Peel never occupied title. What about constructive possession? Counter-argument – owner would have a stronger interest pursuant to the doctrine of constructive possession.
court holds that “constructive possession” [DK, p. 104, last paragraph]. Distinguish this as a employee/employer relationship.
prehistoric boat that is barred. Court rules in favor of the landowner. Mineral case.
Policy considerations: the object is to reunite lost objects with their true owner; the policy of rewarding honesty and encouraging the find outweigh the expectations of an absentee landlord
a. The landowner’s rights are superior to the finder’s right, because this is the best way to get the property back to the true owner. When property is mislaid, the true owner will likely retrace his steps to find the property. When do you ever become a true owner if you are a bailor?
Hypo: finder’s keeper, loser’s weepers… “treasure trove rule” CNN tape of $182,000 found in the homeowner’s wall.
· mislaid – because the original owner Mr. Dunn intentionally placed this money in the wall, the money was wrapped in newspaper and concealed the bundles of money, he built the house and knew where the money would be safe kept.
· abandoned, lost, or treasure trove.
o Abandoned: money may have be acquired through illegal means and he was placing the money in the wall to abandon the money.
o Possible exam question: If property was mislaid at one location and then lost as it had been fallen through the wall
· burns drops his wallet with $400, Bart finds the wallet and takes possession of it, but Bart loses the wallet in the park on his way home. Lisa finds the wallet. Bart v. Lisa. Bart would prevail under the Armorey rule, as he has relatively better title. Society encourages peaceful resolution of property.
If one finds lost property in the US, they act as a balior for the property for the true owner, if the true owner never appears, the property will become the true owner when the time for adverse possession has run (common law approach – varies on jurisdiction and what legislature has enacted).
Acquisition by Adverse Possession:
Traditional justifications for adverse possession:
Prevent fraudulent claims – adverse possession operates as a form of SOL, true owners against the person in possession; 1. Correct title defects – most important rationale used today; 2. Encourage development: privy the person who has gone onto the property and has made improvements; 3. Labor theory: the person who has possessed the property and put labor into the property – should reward their labor; 4. Protect personhood reliance
1. Entry and actual possession
2. Exclusive possession
3. Open and notorious possession (visible)
4. “:adverse and hostile”
5. Continuous possession
6. See slide
TRADITIONAL JUSTIFICATIONS FOR ADVERSE POSSESSION
1. Prevent fraudulent claims
2. Correct title defects (where description of property in deed is incorrect)
3. Encourages development (reallocates from an idle owner to an industrious one)
4. Labor Theory (gives privileges to those who actually put labor into property)
5. Protect personhood reliance (after years on property it has become part of them)
P filed a quiet title action, wanting to quiet title to themselves. A quiet title action is unique to property. Justification in quieting title is adverse possession.
the claimant must physically use the land in the same manner that a reasonable owner would, given its character, location, and nature.
NOTE: General rule is that AP only takes title to land actually possessed
Land here was “woody” and “not fenced” - P’s posted “no trespassing” signs, cut firewood, cleared brush & planted food for wildlife. Reasonable conduct of owner.
· If you were to advise a client on how to adversely possess property
the claimant’s possession cannot be shared with the owner or the public in general
Everyone in neighborhood acknowledges P as owner of land; D’s even called to tell P’s if someone was trespassing on that land.
possession must be visible and obvious, so that if the owner made a reasonable inspection of the land, he would become aware of adverse claim (not hidden; VISIBLE)
OBJECTIVE TEST: Would a reasonable owner, if he drove by at the time the AP was doing these actions, be able to see it?
P’s cleared land & put signs up in view of the road; P’s engaged in conduct that would put the true owner on notice that he was exercising dominion over the property.“No one having an adverse claim to the property had to see them
using property with permission can never be AP, but authority split over mindset required to establish this element. Whatis the state of mind of the adverse possessor to satisfy the state of mind requirement. Three approaches:
(1) Objective standard - claimant’s state of mind is irrelevant
(2) Good faith standard - claimant must believe in good faith that he owns the land
(3) Bad faith standard (extreme minority) - claimant must have intent to take title
claimant’s possession must be as continuous as a reasonable owner’s would be, given the character, location & nature of the land.
Days/weeks away ok so long as in line with nature or character of the property.
determined by state statute. At that point, TO loses right to bring a claim of ejectment.
Majority holding: Elements of AP not met. (BAD REASONING!) With the garden, Lutz did know it wasn’t his property (not under claim of title), so can’t be AP. With garage, Lutz did not know it wasn’t his property (under claim of title), so can’t be AP. Plus, he confessed in earlier suit that it wasn’t his land.
Advantage: Get entire property in the deed (not just part actually possessed)
Advantage: SOL is shorter in most states or elements more lenient with color of title
Homer and Flanders own adjacent lots and homer erects a fence on what he mistakenly assumes to be the true boundary line…. [DK, p. 140, n. 3]
Homer has land by AP, can he claim ownership of the land… a transfer of land must be in writing, so orally conveying property back to Flanders would not be valid pursuant to SOF.
THE BOUNDARY DISPUTE Mannillo v. Gorski – (limited application). Steps encroached 15” onto P’s land; P thought it was his when steps were built.
Proctor v. Huntington Huntington built a home, well and garage on P’s land, and P brought an action of trespass seeking an injunction. P filed suit prior to 10 SOL, so Huntington would fail to satisfy the requirements of AP.
Page two, paragraph 10 last two sentences: CL follows societal interests… courts may craft a rule in equity…. (Listen to tape).
Land is unique and we need to recognize the value of each piece of property…
Concept of a boundary agreement:
P. 140, n. 3 – Agreements between neighbors as to boundary lines enforceable if boundary is existence…
Tacking & Tolling
succeeding periods of possession by different persons may be added together to satisfy the SOL for adverse possession so long as the successive takers are in privity
In order to tack you must be in privity - DK p. 146, first sentence.
Privity is defined: p. 147, second paragraph. There is a relationship (grantor-grantee) …
Presence of specified disabilities stays (tolls) the SOL for bringing the claim for a specified time after removal of the disability (BY STATUTE ONLY).
Disability must exist at the time the cause of action accrued (does not matter if TO becomes disabled after that date) -- COA accrues when AP enters adversely
Most common disabilities: insanity, minority, or imprisonment
Death removes all disabilities
reasonable connection between successive occupants
Subsequent trespassers is the furtherest thing away from a “privity” relationship
ISSUE (1): Element of ‘continuous’ possession met where summer occupancy only? Summer occupancy fine because that is the customary use of that type of land. A reasonable owner would use the property as a summer home. ISSUE (2): Element of ‘continuous’ possession met where summer occupancy only? Summer occupancy fine because that is the customary use of that type of land. A reasonable owner would use the property as a summer home.
Where possession is transferred and occupied in a continuous manner for the statutory period there is sufficient privity of estate. Privity=reasonable connection
the immediate transfer property rights from the donor (person making the gift) to the donee
· Donative Intent: donor must intend to make an immediate transfer of property
· Delivery: property must be deliveded to the done, so that the donor parts with dominon and control
· Acceptance: Donee must accept the property (although acceptance of valuable property is presumed)
· Donors anticipation of immediate death (DK
Types of Delivery: which one will satisfy the element depends on what is being given
Actual - physical transfer of the gift itself
Constructive - handing over a key or some object that will access the gift
For property not easily delivered; if it can be actually delivered, it should be.
Symbolic - handing over something symbolic of the property given
Usually some sort of writing describing the giving of the gift
if grantor gives gifts (satisfies elements) but keeps it for life, inter vivos gift is valid.
Donor can recover regardless of fault (majority)
Leash to the dog would be "symbolic." Car - constructive delivery would be accomplished by giving keys to the car. Most given symbolic gift – stocks and bonds. Picture – if you are given a certificate of authenticity then that would qualify as “symbolic.” Keys to the desk – Ms. Newman (Lakeesh would have a valid claim to the desk).
gift causa mortis - D on deathbed gave P keys to bureau drawer telling her she could have everything in it & in whole house. Life insurance policy in bureau. P argued she was entitled to all furniture, value of piano (burned in fire earlier), and proceeds of insurance policy.
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