Property

Professor Schmudde

Fordham Law

Fall 2002

First Possession:

Chapter 1- Acquisition of Property by Discovery, Capture, Creation

A.Property Rights Defined:

Property rights is the protection by the State of a claim to valuable resources

First in time rule: The first person to take possession of a thing owns it.

B.Acquisition of property

1.General rule: person who captures the resources first is entitled to the resources

2.Discovery of America:

Johnson v. M’Intosh:

Property dispute between same land with a grant from Native Americans and the US gov’t.

- European nations went by rule of discovery between themselves. However, while Native Americans “discovered” America first, alternative is “title by conquest”.

-Held that while Native Americans found the land first, they did not possess it because did not build dwellings and improve the land. Traveled around.

-The courts of the conqueror (US) cannot undermine its own title.

  • Possession: Culturally determined
  • Enforcement of property rights depends on power of state to impose its will.
C.Acquisition by Capture
Wild Animals
  1. Wild animals ferae naturae that are captured belong to the capturer. Merely chasing is not enough.
Pierson v. Post

A on horse pursuing fox, B captures fox and kills. B gets to keep fox.

  • Competition: Society’s object is to capture foxes (to destroy) or ducks (to eat). More animals get killed and improve society if we encourage more ppl to pursue animals.
  • Ease of administration: Rewarding capture is objective, and easy to protect. Pursuit is subjective. The stakes are not high and not worth the judicial time and money in deciding such cases.
  • 19th Century Rule: Can lead to over capture today. Do not want to promote killing now.
  1. Interference by non-competitor (malicious interference with trade)

If a person is trying to capture animals and someone ruins his efforts, not legal.

Keeble v. Hickeringill

A puts decoys out on his pond, B shoots in air so that ducks fly away and are not captured. B can shoot ducks over his own land b/c this is constructive possession (anything over land or under the land).

Rule promotes killing. Law designed to achieve ends.

  1. Custom:

In some hunting trades, a physical acquisition is defined differently than capture.

Ghen v. Rich

Whalers kill whale and put a mark in it. Whale sinks, floats ashore. Whoever finds it notifies the killer and gets a finder’s fee, but the whale belongs to killer. This case the finder sold it himself. Should have been on notice that someone killed the whale, and known the custom.

  • In a case where it produces more killed animals, better not to enforce capture. Instead of ship waiting days for whale to float ashore, goes and kills more whales.
  1. Animus Revertendi

Where wild animals that are tamed have “habit of return” to a house, although they are let out to the wild to graze, they belong to the owner. Reflects society’s value of domesticated animals

  1. Escaped Wild Animals

Animal with no animus revertendi escapes, is subject to capture by another except if the animal not native to the area and obvious that it must belong to someone.

  1. Limitations on capture of wild animals

Common law puts no limit on capture. Regulatory statutes today regulate hunting and fishing.

  • The state does not own wild animals, thus regulating their taking.
  • The state may regulate the taking of game due to their police power, protecting harm to the public.
  1. Discovery of Caves

Ownership of land extends above into air, and below to the ground. Cave discovered still belongs to the owner.

  1. Oil and Gas

Oil and gas are fugitive substances

Give incentive to produce oil and gas if you encourage discovery of it. First in time rule.

-Can drain all of the oil under a pool in A and B’s property if first in time.

-If A’s well bottoms at B’s land, can they keep the oil? No, trespass.

-A reinjects gas into land, flees to B’s land. Can B sue A for use and occupation of land? No, B owns the gas now because it is on her property, so cannot sue for occupation of land. But ownership was overruled today and A still owns the resource.

  1. Water

Capture:

Also the first in time rule, as long as you do not unnecessarily harm owners below you.

Example: A builds dam, lessening the water going to B’s land. Allowed b/c first in time.

D.Acquisition by Creation
  1. General Rule: Want to reward labor. If you are first in time, should be yours. Exceptions apply.
  2. Intellectual Property: property created by exercising the mind: patents, copyrights (written works), and trademarks (recognized design, logo). Property in ideas or persona.
  1. The problem: how to reward labor but not encourage monopolies and stifle creativity in others? Creativity thrives on imitation.
  2. The common law: allows imitation.

Cheney Bros v. Doris Silk Co.

Cheney Bros didn’t patent their design (not practical). Doris silk copied it and made a lot of money off it at their expense. P asked for protection just for that season. Their creation alone did not make the design their property. Allowed to copy things w/o a patent.

-Patents and copyrights themselves are limited in time by statutes. Cannot copyright an idea, only the expression of that idea.

Smith v. Chanel

Cannot patent a smell. Can advertise “smells like Chanel no. 5” not “is Chanel no. 5”

Just pumping money into an ad campaign does not justify your property rights to the smell.

  1. Person’s creation of a persona/celebrity may not be imitated without their permission

(Vanna White v. Samsung Electronics America)

  1. Unfair Competition: A News agency has property interest in the news it collects and can prohibit competitors from disseminating their info until the commercial value of the news has passed (International News Service v. Associated Press).
  1. Rights in body products

One does not have property rights in body products.

Moore v. Regents of the U. of California

Man’s spleen removed in order to create profitable cell line. Thus doctors were first in time to acquire the spleen, as Moore could not own his spleen. Not transferable in the market. He did not expect to keep his spleen when they removed it. Do not want to hamper medical discovery by requiring permission to use ppl’s body parts in experiments.

Ct concerned in making body parts sellable. While not all property is alienable (like ivory which is illegal to buy b/c endangered species laws-only inheritable) and SS, ct did not want the body parts to be available in the open market.

E.Right to Exclude

Related to the transfer of goods (like Moore)

  1. The essence of property is the right to exclude others from its use.

Limitations of right to exclude:

  1. Worker’s rights to organize: To secure these rights, landowner may not prohibit union organizers or lawyer from coming on a property (State v. Shack- cannot be held for trespass)
  2. Property rights can be distributed to non-owners in the interest of their safety (farm workers)
  3. Solicitors in shopping centers can exercise free speech according to many state constitutions. According to US SC no constitutional rt for them to override the mall owner’s rt to exclude.

Chapter 2- Acquisition by Find, Adverse Possession, and Gift

A.Acquisition by Find- Private Property
  1. General rule: An owner does not lose title to property when he loses or mislays property.
  2. Prior possessor always has better title to any subsequent possessor, excluding the owner.
Armorie v. Delamirie

A finds jewel and takes it to jeweler, B. B refuses to give back to A b/c he is not the owner of the jewel, he just found it. A deserves the jewel b/c he is a prior possessor

(1)Prior possession protects an owner that has no proof of ownership. Possession is easier to prove than ownership, with a title going back to a prior possessor.

(2)Entrusting goods to another is an efficient practice. Need to bring clothes to dry cleaner. The store is a bailee, who must surrender goods to prior possessor. Not fair for ppl not to return goods without proving your ownership of them.

(3)Prior possessors expect to prevail over subsequent ones. Enforce belief that law is just.

(4)The protection of peaceable possession is ancient policy in law. Do not want to encourage stealing to gain possessions.

(5)Protecting a finder who reports the find encourages honesty.

(6)Protecting a finder rewards labor in returning a useful item to society.

  1. Relativity of title- If A finds objet, then loses it, and B finds again, who owns it? A owns in relation to B, but not in relation to O, true owner.
  2. Prior possessor a trespasser- Even if A is a trespasser, and B takes from A, A has superior claim than B because he was prior possessor. Want to avoid fights.
  3. What constitutes possession? Like captor of wild animals- actual physical possession with the intent to assume dominion over it.

Example: A discovers shipwreck under the sea. Puts buoy floating on top, intends to come back tomorrow. Never does. B comes 9 mo. Later and takes shipwreck. B prevails over A b/c he took physical possession and A did not use sufficient acts of physical control. A must place boat over the wreck with he means to raise it before he has rights to it.

Want to encourage returning good to use in society.

  1. Constructive possession- An owner of land may have possession of something even if he does not know it is on his land.
  2. Finder v. Owner of the premises- (when the owner is not the actual owner of the object)

Finder is trespasser: O gets it. Do not want to encourage trespass.

Finder is employee: Employee is “acting for” or under “contractual duty” to report object to employer. Like maid service in hotel. This facilitates the return of the object if true owner looks for it. Same thing if hire person for limited purpose, like cleaning sewer drain, under the supervision of the owner and objects found belong to him.

Objects under the soil: Since ppl expect to own what is buried on their prop, it is the owner’s.

Owner is in possession: A is guest in B’s home and finds a ring. A has constructive possession of everything in his home.

Owner not in possession: If owner has not moved into a house and made it his “personal space” the owner is not in constructive possession of articles he is unaware of.

Hannah v. Peel

Peel had a house that was requisitioned by the English gv’t to house soldiers. Soldier Hannah found a brooch that O was unaware of. To reward honesty, Hannah got the brooch. O was not in possession of the house for 2 yrs.

B.Acquisition by Find- Public Property
  1. Lost-Mislaid Distinction:

Lost- owner did not intend to put it anywhere. Does not know where object could be. Goes to the finder of the object.

Mislaid- Owner intentionally put something in a place but forgot to take it back. Object goes to the owner because they may come back looking for it and has the best chance of getting it if the owner has it.

McAvoy v. Medina

McAvoy, a customer in a barber shop, found a pocketbook with money in it. He gave it to the owner in case someone came back looking for it. When they did not, he wanted owner to give money back. Ct held that owner got to keep money.

New York has abolished the distinctions between lost and mislaid. All goes to finder.

  1. Abandoned property- the finder gets to have title and possession of it.
C.Adverse Possession
  1. Theory: If within the number of years established in a S/L owner does not take legal action to eject possessor who claims adversity to owner, owner is barred from bringing an action in ejectment. Possessor then gets title to the land

(1)Example: S/L is 10 yrs. A pretending to be O sells Blackacre to B, forging O’s name. After 10 years, B has title in the land through adverse possession.

(2)If B has title through adverse possession, in order to record it in the courthouse, B must file a quiet title action against the former owner who is barred by S/L. The decree in this lawsuit will be recorded and declare adverse possessor legal title holder of prop.

  1. Importance:

(1)To protect title: sometimes title is hard to prove. Ex: O has Blackacre in 1960, A deeds Blackacre to B in 1970, B to C in 1985. D contracts to sale from C, then realizes there is a break in the chain of title between O and A. Problem with marketability of title? Best for C to quiet title in Blackacre, then sell to D.

(2)The sale between O and A may not be recorded, or it could even be fraudulent. As long as adversely held in possession, OK to quiet title after S/L.

(3)To bar stale claims: Better to sue while witnesses’ memories fresh.

(4)To reward those who use the land productively: Penalizing the unproductive owner.

(5)To honor expectations: After a long time, ppl have attachments to the land and expect to be able to use it. Giving effect to expectations is a policy in property.

  1. Length of time required: S/L varies from state to state from 5 to 21 yrs. The trend is a shorter period of yrs.
  1. Possessor’s rights before acquiring title:

(1)Can evict subsequent possessor (prior possessor first in time)

(2)Has interest she can give to another (tacking)

(3)No interest in the property valid against the true owner

  1. Requirements of adverse possession:

(1)actual entry and exclusive possession (not with owner or with the public)

(2)Open and notorious

(3)Adverse and under claim of right

(4)Continuous for statutory period

  1. Actual entry: Triggers the cause of action that starts the S/L running.

(1)Constructive possession in part of the land: may be valid if under color of title. May take the whole land in that case. Otherwise, only what is actually entered.

Color of Title:

Problems:

-In 1960, O owns 100 acres. 1975, A under color of title from Z (who did not own the land) moves into the back 40 acres of the land, improves. A brings suit to evict O after S/L gives him back 40 acres. He does not get all 100. O was still on the land.

-A enters lot 1 with color of title for lots 1 and 2. Satisfies S/L in lot 1. Both owners to 1 and 2 not in possession. A only can have title to 1 because he entered into lot 1. It would not be notice to owner of lot 2 if he looked at it that someone was adversely possessing it.

  1. Open and Notorious

(1)Visible manner. Must be reasonable notice to the owner claiming dominion. Depends on what the land is used for.

(2)Farmland: Fencing, cultivating, erecting a building is usually open and notorious act.

(3)Wild, undeveloped land: Hunting and fishing land- not for farming- acts indicating dominion (taxes, builds hunting cabin, sells the timbre from the land, executes oil leases) Fencing and living in it not necessary.

(4)City land: the totality of the actions. Paying taxes, excluding others, granting permission.

(5)Statutory requirements: some places (NY) require without color of title to show “usual improvements” and “usual cultivation” of land.

Van Valkenburgh v. Lutz

Lutz used neighboring lot for single dwelling house a few feet from boundary line, and farmed some veggies exclusive means of employment. Some chicken coops. Though the land was his. Ct held not enough improvements or cultivation of land for Lutz to have prop. Through 30 yrs adverse possession. Van Valkenburgh bought the land through the city. Had title to land.

Lutz also admitted in easement suit in the past that he had rt to easement, did not claim adverse possession to the whole lot.

  1. Claim of right: (necessary adversity)

(1)Objective test (majority commentator opinion)- even if person says that they will give back the land if the true owner shows up, objectively they overran the S/L and are adverse possessors. Important thing is the actions.

Problem: A and B own adjacent lots. A puts fence where she falsely thinks the boundary is, but is really 3 ft from the border. After the S/L runs, says “this is my land” and she says “OK”. A changes mind later, talks to a lawyer, and wins, state of mind doesn’t matter.

Example: O tells A “Go farm Blackacre”. He does, but he does not own Blackacre b/c due to Statute of Frauds, must have written title to give as gift. After S/L runs out, had a good faith claim of title and is an adverse possessor.

(2)Subjective test (actual way the cts go): Must have a BFP or good faith belief that he has title. A squatter under this view cannot have good title.-“I know it’s not mine”

(3)American view “I thought it was mine” wins

Which is best approach to claim of right?

  1. Expectations theory- “I thought it was mine” – reward people who act in good faith, punish people who do not look after their property.
  2. Earning theory- reward those who fix it up, rather than those who ignore the land. Best economic use.
  3. Sleeping theory- real owner ignored his land. Deserves to lose the land.

Real Property Taxes- Where do they fit in?

  1. Owner is paying: Owner can argue no abandonment. Affirms his ownership of prop. But argue for possessor that he should be seeing the land as well.
  2. Possessor is paying: Acting like the owner. Stronger arg for abandonment of the prop.
  3. No one is paying: Helps possessor. More indication of abandonment. City can sell house to get the taxes.

(4)Boundary Disputes: Open and notorious possession of a strip of land believing it to be your own.