Acquisition by Capture

acquisition by capture

Pierson v. Post (1805) NY supreme court- In cases with an animal ferae naturae, property right manifests on occupancy, which happens when the individual who intends to appropriate the animal for his own use deprives it of its natural liberty and brings it within the individual’s certain control (e.g. fatally wounding, ensnaring, etc.) (Post is in hot pursuit of a fox, Pierson kills and takes the fox)

dn: May not enter onto my property to kill a noxious beast[1]

Keeble v. Hickeringill (1707)- Where a violent or malicious act is done to a man’s occupation, profession or way of getting a livelihood, and the man used his art or skill to take the animal with intent to sell/dispose of to his profit, and the one doing the malicious act had no legal right to do so, there an action doth lie (decoy pond case, D fires gun to frighten ducks)

n. Prof says it’s not a legal right, it’s society’s interest

General Principals:

1. Occupancy: For wild animals, property right begins when one, with intent to appropriate, brings animal within his certain control and deprives it of its natural liberty
2. Malicious interference with trade: Where on maliciously interferes with trade of another without a societal interest in him doing so
3. Ratione Soli (“according to the soil”): One acquires the right to a wild animal when it comes onto your property (trumps occupancy)
4. Animus Revertendi (“with intention to return”): domesticated wild animals are property of domesticator
5. First in time first in right
6. Termination of occupancy: occupancy terminates when the animal is no longer under certain control, and it has returned to it’s natural habitat (e.g. animal escaping from the zoo)

property rights and the law of finders

Moore v. Regents of the University of California (1991)- No property right in own cells (mostly has to do with society’s interest in research and individual’s assignment rights), but wins on breach of duty to gain consent (guy gets medical treatment, doctors keep his cells for research without telling him, he sues for conversion)

Bundle of Property Rights (note, not all property rights include these):

1. Possess
2. Use
3. Exclude
4. Dispose of/Transfer

International News Service v. Associated Press (1918)- One normally does not have a property interest in news, but there is an exception for people whose business is extracting the value of having news first “quasi property right” (destructive competition) (INS steals AP’s news off their bulletin board)

*prof says critical fact is that INS was stealing news on the east coast and wiring to the west coast

Cheney Brothers v. Doris Silk Corp. (1930)- No property interest in a design after released to the public (constructive and fair competition, don’t want to give them a monopoly) (new silk patterns very popular for one season, CB copies pattern)

Jaque v. Steenberg Homes, Inc. (1997)- Right to exclude is important, large judgments prevent people from engaging in self-help (mobile home delivery, against the will of the property owner drove across his property to deliver it, rather than take the public road which was inconvenient, awarded $1 in actual damages and $100,000 in punitive)

State v. Shack (1971)- Right to exclude depends on who you want to exclude and why, cannot exclude to isolate migrant farm worker from those who would help him (lawyer and doctor want to talk to migrant worker alone, landowner says they can’t and excludes them from the property)

Principles:

1. Property rights are relative and between individuals
2. Finder has property interest superior to all but the rightful owner (or someone with a superior claim)
3. Jus Tercii defense: if another has property rights, you must not have any. This is an invalid defense
4. Possession is 9/10 of the law (we assume possession is lawful in order to avoid burdens on society)
5. A thief can never pass good title
6. Between innocent parties, the risk of loss is placed on the party best able to prevent the loss (in the case of a bailee who sells item to a third party, risk of loss in on the bailor. In the case of a thief who sells the item, risk of loss is on the buyer)
7. Doctrine of subrogation: like indemnification, see e.g. the armory case if damages were paid and the true owner came to recover
8. If the true owner does not recover the item within a reasonable amount of time, then the finder gains full title

Armory v. Delamirie (1722)- A finder has a property interest superior to all but the rightful owner. Further in actions where the remedy is either return of the item or damages, damages are based on the assumptions most favorable to the winning party, in this case the highest quality gem (chimney sweep finds a jewel, takes it to a jeweler who steals it)

Hannah v. Peel (1945)- A finder lawfully on the property of another and not exceeding the scope of his license has legal title to lost property against the landowner who has no knowledge of the item in question (soldiers are quartered in a house and one of them finds a brooch, the owner of the house claims the brooch because they own the property)

Principles:

1. Locus in quo: claim to property as a landowner, as opposed to claim as a finder
2. Limited purpose doctrine: a person is allowed on another’s property for a limited purpose, but once he exceeds that purpose he becomes a trespasser, and therefore cannot invoke property claims as a finder
3. A trespasser cannot claim property as a finder
4. Finder has right superior to locus in quo, except where item is in private area, or property is mislaid
5. Property is characterized based on true owner’s state of mind at the time possession was relinquished
6. In the case of property found in a private area, it goes to the landowner unless the trespass was trivial
7. In employer employee situations, typically the employer gets the property
8. In most modern jurisdictions, statute says finder gives item to the police, who then give it to the finder if the true owner does not claim it
9. Cultural property is an exception

PUBLIC AREA / PRIVATE AREA
LOST ITEM / Finder gets it / Landowner gets it
MISPLACED ITEM / Landowner gets it / Landowner gets it
ABANDONED ITEM / Finder gets it / Landowner gets it
TREASURE TROVE / Finder gets it / Landowner gets it

Finders’ law questions:

1. Classification of property (abandoned, lost, mislaid, treasure trove)
2. Where was it found? (public place, private place, landowners expectations?)

McAvoy v. Medina (1866)- In mislaid property, the finder acquires no original right to the item (guy in barber shop finds wallet left on the counter)

Distinctions:

1. Mislaid: true owner has voluntarily and intentionally relinquished the property and neglected to remove it
2. Lost: true owner has involuntarily and unintentionally relinquished possession
3. Abandoned: true owner does not intend to reclaim possession
4. Treasure Trove: anything of value hidden, whether under or above ground (at common law, treasure trove always went to the king)

Adverse Possession (can possession ripen into title?)

Van Valkenburgh v. Lutz (1952)- Need actual and exclusive occupation to claim title under adverse possession (two families, first uses land for a long time, second buys the land and kicks them off) n. different rule most places

-court is talking out of their asses in this case, they really have a problem with the fact that the Lutzes previously won a prescriptive easement and are changing their story

Principles:

1. In adverse possession, do not sue for trespass, sue for ejectment because you want your land back
2. Typical statute of limitations in adverse possession is 10 years
3. Modern rule of adverse possession is objective approach (focus on true landowner)
4. Minority approaches are ordered subjective good faith then subjective bad faith

2 policy approaches:

1. Earnings approach: we want to reward possessors who use land and earn the right to occupy it
2. Penalty/Statute of Limitations approach: we want to punish landowners that fail to protect their property interests

Adverse possession rule:

1. Actual entry
2. Open and notorious possession (gives true owner constructive notice)
3. Exclusive possession (helps to give clarity of notice to true owner)
4. Adverse to landowner’s title under a claim of right (determination turns on whether using the objective or subjective approach)
5. Continuous and uninterrupted for stated period (not to be taken literally, adverse possessor must possess property in the manner a normal true owner would, see e.g. ski vacation home)
6. Sometimes must pay taxes (not part of general rule on exam, but may mention)

Adverse possession outcome:

1. Under claim of title: gain title to the land actually possessed
2. Under color of title: gain title to the land possessed actually and constructively

n. Improvement (100% on property in dispute) vs encroachment (only partially on property)

Mannillo v. Gorski (1969)- As encroachments tend not to be open and notorious, true owner must have actual knowledge to lose title. However, where adverse possessor cannot remove item without great expense, the true owner may be forced to convey title to the land for a reasonable price (case with the steps that extend 15 inches over the property line)–boundary dispute

Principles:

1. When you claim under color of title, the written instrument must be defective in some way
2. Relation back doctrine: When you gain title under adverse possession, we say you have been the owner from the time you entered
3. Transfer of title: has no impact on running of the statutory period, this favors the adverse possessor’s rights (every new owner of property has a duty to check the chain of title, and walk the property)
4. Multiple lots where possessor actually possesses only one: may only claim both lots under color of title if the lots are contiguous and both are owned by the same entity
5. At common law, an improvement on the land belongs to the true owner if you don’t get title (improve at your own risk); BUT
6. Modern trend, where there is a good faith improvement, the court may force a transaction (either sell the land to the possessor or the improvement to the true owner)

Boundary Disputes:

1. Agreed boundaries doctrine: express oral agreement between neighbors as to where the boundary is will be binding
2. Acquiescence doctrine: implied agreement (meaning long acquiescence may imply an agreement as to the boundaries)
3. Estoppel: reasonable reliance on representations which tend to indicate the place of the boundary

Howard v. Kunto (1970)- “privity is a judicial recognition of the need for some reasonable connection between successive occupants of real property so as to raise their claim of right above the status of the wrongdoer or the trespasser” (confusion where people own land on one lot and house on another due to some recording problem)-note, definition of privity is state specific, look to two approaches below)

n. if a court favors SOL or earnings method on one issue, may not assume they favor that method vis a vis other issues (e.g. may go with SOL approach, but jx’s are split on the privity approaches)

Principles:

1. Tacking: adverse possessors may add time together if privity is shown (e.g., if I adversely possess for 19 years and you possess for 1, you have satisfied the SOL)
2. Privity:
3. English/SOL approach: so long as there is no significant gap in possession, tacking is allowed
4. American/earnings approach: May not tack if possession transfer was in bad faith, must have some meeting of the minds/voluntary transfer
5. Transfer of title after SOL begins running does not affect adverse possessor’s interests
6. Where title has been split (e.g. one person has right to possess and another has residual interest): examine quality of title (fee simple absolute, fee simple finite, etc.)
7. Only party with the right to possession has the right to sue for ejectment
8. If title is split (right to possess and actual title lie with different parties): the adverse possessor gets quality of title of the party who had the right to possession
9. Disability doctrine: for minorities, prisoners and those of unsound mind who are disabled when the adverse possession begins, we toll the running of the SOL until the disability is removed, then the person has 10 years to eject
10. If title is transferred to someone who also has a disability, it’s still 10 years after first person’s disability is removed (only claimed by person having disability on the day the adverse possession begins)
11. Disability doctrine for death and minors: if a minor dies, 10 years doesn’t start until the minor would have reached majority UNLESS this would be shorter than the regular statute of limitations
12. A thief can’t transfer good title
13. Voidable title rule: one may gain good title as a good faith buyer buying from a merchant

O’Keeffe v. Snyder (1980)- The discovery rule says, so long as the true owner pursues stolen item diligently, the statute of limitation tolls until the true owner gains knowledge of who has the item (o’keefe paintings are stolen, they show up in a gallery and she wants them back, question of statute of limitations)

Gifts

Must have:

1. Intent (present intent to voluntarily relinquish any interest in the item)
2. Delivery
3. Acceptance (usually presumed)

Principles:

1. Redelivery: if the donee to be is already in possession, must only have evidence of intent, not redelivery
2. If physical delivery is possible, that is the only way of achieving delivery
3. Gifts are not revocable
4. Tearing up a deed does not transfer title back, must sign and deliver new deed

Possessory estates and future interests

Possessory estate: title and present right to possess

Future interest: property interest with future right to possess

Distinctions:

1. Fee simple absolute will last forever
2. Fee simple defeasible may last forever
3. Finite estates will end

Phrasing:

1. Words of purchase (identity of the taker)
2. To A
3. Words of limitation (duration)
4. Fee simple absolute: And her heirs
5. Fee simple determinable : As long as/while/until
6. Fee simple subject to condition subsequent: but if (but if may also introduce a condition precedent)
7. Fee tail: heir of the body
8. Term of years: must be able to calculate last and first date

Possessory estates and future interests:

1. Fee simple absolute
2. Fee simple defeasible
3. Fee simple determinable with the possibility of reverter (in fee simple absolute)
4. Fee simple subject to a condition subsequent with the right of entry/termination (in fee simple absolute)
5. Fee simple subject to an executory limitation with the shifting or springing executory interest
6. Finite estates (possessory estates)
7. Life estate
8. If transferred the transferee gains a life estate pur autre vie
9. Fee tail (long line of life estates)
10. Term of years (end date must be capable of determination on the day the thing is established, also may be less than a year)
11. Finite estates (future interests)
12. Remainder (third party gets it)
13. Vested, remainderman must be:
14. Born
15. Ascertainable (you can identify the holder by his personal name at the time of execution), and
16. There is no express condition precedent in the clause creating the remainder or the preceding clause
17. Contingent
18. Common law destructibility of contingent remainders kicks in if condition precedent is not satisfied before or at the moment the preceding finite estate ends
19. This means! You must include a reversion to the grantor whenever you end with a contingent remainder
20. Alternative contingent (becomes possessory only if another contingent remainder fails to vest)
21. Reversion (grantor gets it)

Principles:

1. At common law, must use words “and his heirs”, or it is a life estate!
2. Reversions and vested remainders are transferable
3. With life estates, adverse possessors only gain an interest pur autre vie

Premature ending to finite estates (premature ending destroys all contingent remainders)

1. Forfeiture (a termination of a life estate or contingent remainder as punishment for the commission of certain crimes)
2. Renunciation (life estate interests may be renounced and contingent remainders are destroyed upon renunciation)
3. Merger (for successive vested interests held by the same party, they should be merged and re-identified by the largest estate created by the merger)
4. Only happens if there are no intervening vested remainders

n. at common law, the life estate was the default duration, necessitating “and his heirs” to convey property in fee simple absolute (fsa is now the default)

Gap scenarios:

To A for life, then to B and her heirs if she attends A’s funeral

-A has a life estate

-O has a reversion in fee simple subject to an executory limitation

-B has a springing executory interest in fee simple

The problem is that B cannot come into possession during A’s estate or at the moment it ends. Therefore O fills in gap and here is our springing executory interest.

Class gifts:

To A for life, then to A’s children and their heirs

1. If A has no children:

-A has a life estate

-A’s children have a contingent remainder in fee simple

-O has a reversion in fee simple

2. If A has one child:

-A has a life estate

-A’s children have a vested remainder “subject to open” in fee simple

Rule of conveniens: once the finite estate ends, classes close. So if A’s child is born after A dies, he is not included in the class.

Life estates cut short unnaturally:

To A for life as long as she remains unmarried, then to B (or O) and her heirs

-A has a life estate determinable

-B has a vested remainder in fee simple (or O has a reversion)

To A for life, but if she marries, then to O and her heirs

-A has a life estate subject to a condition subsequent

-O has a reversion in fee simple

To A for life, but if she marries, then to B and her heirs

-A has a life estate subject to an executory limitation

-B has a shifting executory interest in fee simple