PROPERTY:
I: Introduction to the Concept of Property
A. SOVEREIGNTY
1. Johnson v M’Intosh- 1823- U.S. Supreme Court
A. FACTS:
Johnson (P) after the Proclamation of 1763 bought the land from the Pianteshaw Indians. M’Intosh (D) purchased the land later from the U.S. government.
B. RULES:
Discovery: When a country is conquered, the territory is ceded to the sovereign of the conqueror to distribute as he chooses (absolute dominion or sovereignty over the land).
Proclamation of 1763: Clear law that Indian title is solely the right of occupancy and not the power to sell (can’t sell what you don’t own). Declaring null and void all bargains made with the Indians that did not have governmental approval.
Positive Law: Rule which the sovereign says shall not be broken (no normative base).
Fundamental Law: natural law.
C. SIGNIFICANCE
The United States, from Great Britain and France, obtained dominion and control over such territory, which is inherent in the authority of a sovereign to possess such power, and subsequently is superior to the claims of the indigenous population. The sovereign determines the validity of an ownership claim.
D. PROBLEM: Is the Proclamation of 1763 illegal?
J. Marshall’s dilemma: Declaration of Independence stated the acts of G.B. to be illegal b/c it signaled out the colonists and itself was a “proclamation”.
E. NOTES
1. Commonwealth v. Morgan -1983- Va. Supreme Court
Significance: Marshall’s dilemma- Va. contended that the crown, w/o consent of Parliament, had “no power to grant the bottoms of navigable waters to private individuals thus interfering w/ the public rt. of fishing or oystering. Ct. said no.
2. Tee-Hit-Ton Indians v. U.S. -1955- U.S. Supreme Court
Significance: While Native Americans may have a claim against third parties for a wrongful taking, no action will lie against the sovereign who has superior right to that of the Native Americans’ mere right of possession. The Alaska native Claims Settlement Act of 1971 gave the Indians a just settlement, regardless of ct. rulings.
2. Passamaquoddy Tribe v. Morgan- 1975- Me. Supreme Court
A. FACTS:
The P sought the aid of the Dept. of Interior (D) to recover land sold to Ma. in 1794 b/c it violated the Nonintercourse Act of 1790 which provided that no Native American tribe could dispose of its lands w/o approval by Congress.
B. SIGNIFICANCE:
Under the Nonintercourse Act, the U.S., as sovereign, owes an obligation/trust to protect the lands of all Native American tribes from unfair, improper or improvident sale or disposition. While fee title remains w/the federal govt., the rts. of occupancy accorded to Indians has been granted by Congress and are valid against all third parties. Justice Dept. must do what is best for the Indians, not U.S. govt..
C. CASES:
1. Oneida v. Oneida Indian Nation- 1993- U.S. Supreme Court
Facts: Oneida Indians want rent b/c the sale of lands in 1795 to N.Y. State went against the 1793 Nonintercourse Act b/c not approved by Congress.
Issues: (a) Statute of Limitation for 175 yr. old claim; (b) laches
Holding: (a) Federal Common Law of Indian right of occupancy does not have a state statute of limitations and no limit due to Congressional intent. (b) Dissent: legitimate reliance and inexcusable delay (definition of laches). Problem w/dissent: The Nonintercouse Act was made to protect these people who could not protect themselves.
2. Mashpee Tribe v. New Seabury Corp 1979
Significance: The Mashpee could not recover for Nonintercourse violations b/c they had not been a tribe continuously from the date of violation to the present.
B. PROPERTY IN ANIMALS
I) Capture is required for acquiring possession of wild animals. Soceity’s object to kill noxious beast as well as certainty and efficiencies means to reward only the captor not the pursuer. Mortal wounding or trapping is close enough.
1. Pierson v. Post- 1805- New York Superior Court
A. FACTS:
Pierson (D), knowing that Post (P) was hunting a fox, killed it and carried off.
B. RULE:
Mere pursuit does not mean possession. Property in wild animals is only acquired by occupancy, and pursuit alone does not constitute occupancy or vest any right in the pursuer. Post had a right in the process (case) and not in possession (trespass).
Trespass on the Case: Intentional infringement of nonpossessory ownership
rights.
Trespass: Intentional infringement of possessory rights.
Justinian: seizure vests property (possession) rights.
Puffendorf: Seizure, or mortal/greatly maimed gives property rights.
Barbeyrac: Seizure, wounding, chase or deprivation of their natural liberty.
C. SIGNIFICANCE:
A private person cannot acquire exclusive rights to a wild animal except by taking and reducing it to actual possession. After the animal has been lawfully subjected to control, the ownership becomes absolute as long as the restraint lasts. The focus should be on notice to “innocent” parties who can rely on circumstances as they can reasonably believe them to be. Court refuses to punish one for interfering with a game. Economics favors Pierson. Ignores custom due to economic importance(distinct fr/ Ghen).
-Changing of classes, policy (noxious beasts v. sport), and notice
D. CASES:
ii) A person who does not want to capture the animal cannot interfere.
1. Keeble v. Hickeringill -1707
Facts: D maliciously made loud noises to drive away ducks fr/ P’s duck pond.
Significance: The P had the right to have the process to get possession w/o malicious interference. Economic livelihood.
2. Ferae Naturae: New Hampshire’s law where it is illegal to interfere with a sportsman’s pursuit in hunting, trapping, or fishing. This does not apply to domesticated animals (Conti v. ASPCA, Chester the parrot). Ownership of moveable thing is regulated by statute (George the cat)
iii) While the general rule is that the captor must acquire physical control over the animal, custom, which is more effective in getting the animals killed, may dictate a different result.
3. Ghen v. Rich -1881- Mass. Court
Facts: Whale had been killed by Ghen, leaving his identifying bomb-lance in the animal. D bought whale fr/ someone other than P.
Significance: When all that is practicable in order to secure a wild animal is done, it becomes the property of the securer who has thus exercised sufficient personal control over the wild animal. The unitary industry-wide custom which is necessary to the survival of the industry and is favorable to all is enforceable. Economic custom adopted by the court.
4. Oysters: Private Property: Internalized the costs of the harvester’s actions. Private right enables the producer to capture a greater proportion of the benefit of his activity. Exclusive rights create incentive for investments and efficiency.
Public Property: In attempting to maximize the value of his common right, the individual can be expected to over-exploit the resource leading to depletion of the stock. Incentive to replenish is minimal, overcrowding, young captured with old.
II. Property in Land
A. ACQUIRING OWNERSHIP
I) Before the statute of limitations bars the true owner, the adverse posessor has all the rights of a possessor (the prior possessor has rights superior to everyone but the true owner). Adverse possessor has no interest in the property valid against the true owner.
1. Brumagim v. Bradshaw -1870- California Court
A. FACTS:
Brumagin (P) alleged that he had been in possession of a tract of land for pasturing which was bounded by three sides by natural boundaries and on the fourth by a wall and gate.
B. HOLDING:
Acts of ownership and dominion over land which may be sufficient to constitute an actual possession vary according to the condition, size, and locality of tract. By such acts the party proclaims ownership over the land. One can evict a subsequent possessor who takes possession away from him (“prior possessor wins”).
C. SIGNIFICANCE:
Notice alone or mere intention to possess may not be enough to give ownership. Through time, what is sufficient notice and what it possession may change. Possession may come and go with the passage of time. For the jury to decide.
B. TITLE VERSES POSSESSION
ii) Prior possessor has superior rights over everyone except the true owner. Win on the strength of you own title/claim.
1. Tapscott v. Lessee of Cobbs- 1854- Virginia Court
A. FACTS:
Lewis erected a house and lived on the property for 15 years w/o legal title. Lewis bequeathed land to Cobbs. D entered land w/o pretense of title. P brought action of ejectment.
B. RULE:
Possessory interest in land grants the possessor rights which are superior to all except the rightful title holder. P must win on the strength of his own title. Color of title.
C. SIGNIFICANCE:
Prior peaceable possession is grounds for ejectment. Law presumes possession unless facts show otherwise (constructive possession). Needs actual possession, not prior peaceable constructive possession. Prior peaceable possessors will be able to bring an ejectment action in order to prevent someone who knows you don’t have title to forcibly get you off land and become legal possessors.
Problem: Policy concerns want to reward productive use of resources and not disorderly scrambling for land. Court rejected this idea b/c rebuttable presumption that heirs will get possession (i.e. preserves adverse possession interests).
D. NOTES: pg.74
An occupying freeholder is both seized and possessed.
A freeholder who has let his land for years is seized, or possessed, of the freehold, but not possessed of the land.
A lessee for years possesses the land even ass against the freeholder.
A trespasser who has acquired de facto possession w/o title is a disseisor, and has a real though wrongful siesin.
C. ADVERSE POSSESSION
A. Adverse Possession: If the “owner” of land ignores his rights and if another possesses and uses the land, the claim of the “bare possessor” ought to prevail over that of the indifferent “owner”. If, within a number of years (statute of limitations), the owner of land does not take legal action to eject a possessor who claims adversely to the owner, the owner is therefore barred from bringing an action in ejectment. Once the owner is barred from suing in ejectment, the adverse possessor has title to the land.
iii) Adverse possession does not require one to actually live on, fence, or improve real property as long as the claim to it is open, notorious, and hostile.
1. Lessee of Ewing v. Burnet -1837- U.S. Supreme Court
A. FACTS:
Burnet (D) claimed a vacant lot next door to his house under claim and color of title based on a deed. D never fenced lot, improved the property, or lived on it. D paid taxes for 30 yrs., leased and used gravel and always treated property as his.
B. HOLDING:
Adverse possessor took sand and gravelform a city principally valuable for sand and gravel, and granted permission to others to take sand and gravel, and sued in trespass those who took sand and gravel w/o permission, and paid taxes; these acts constitute adverse possession. Continuous and uninterrupted use for this type of land.
C. RULE:
Adverse Possession requirements (taking into account nature and situation of the property:
1. Actual possession for the statutory period (usually 20 yrs.)
2. Regular and uninterrupted possession.
3. “Open and notorious” possession, giving reasonable notice to the owner
and the community.
4. “Hostile” Possession, i.e. w/o permission from owner
+1. Under a claim of right.
1) “Actual” signifies that possession must be of such a character that the community would reasonably regard the adverse possessor as the owner. Triggers the cause of action and must be exclusive possession.
2) Requires the degree of occupancy and use that the average owner would make of the particular type of property. An adverse use is continuous when it is made w/o a break in the essential attitude of mind required for adverse use.
3) Adverse possessors acts must be such as will constitute reasonable notice to the owner that she is claiming dominion. Acts from which the community, observing them, would infer the actor to be claiming ownership. Requirement varies to the condition, size, and locality of the land.
4 & +1) This requirement is so that the true owner is not lulled into believing an occupant will make no claim against him. Objective: actions of the possessor looks like they are claims of ownership regardless of intention. The important thing is occupying land w/o the permission of the owner. Subjective: Adverse possessor must have a bona fide or good faith belief that he has title. Color of title (invalid written instrument) is not necessary. Minority View
D. PURPOSE AND EFFECT: Adverse possession and statute are there to protect the adverse possessor, not owner. When reviewing statute of limitations, ignore the owner, focus on the actions of the possessor. Community rely on appearances of legality: legal, social, economic edifice is built on that idea.
Brumagin: If you possess a little but have a deed (although invalid) specifying the boundaries, then the adverse possessor has constructive possession of entire lot. If not, you get what you possess. Tapscott: Constructive possession is not good enough verse actual possession (need actual peaceable possession).
(a) To Protect title; (b) Bar stale claims; (c) To reward those who use land productively; (d) To honor expectations
E. NOTES: pages 83-87
1. Morengo Cave v. Ross -1937- (open and notorious)
Decision: Possession of a cave under the surface owner’s land, of which the surface owner is unaware, is not adverse possession b/c not open and notorious.
Problem: Focus should be on adverse possessor; acted like an owner and advertised possession. Ct. focused on title owners’ knowledge which is irrelevant. Cave company should have gotten only the cave (you get what you possess).
2. McCarty v. Sheets -1981- Indiana Supreme Court (open and notorious)
Decision: The existence of the garage was open and notorious to all.
Problem: Was it open and notorious?
3. Wallis’s Cayton Bay v Shell-Mex -1974- (permission)
Decision: Garage company’s “use” of the parcel had merely been to wait for the road project. Therefore, P never established possession adverse to that use, and so adverse possession never begun to run in his favor. The adverse possessor knew that the owner had allowed him to use the land (i.e. not hostile).
Problem: Just b/c the adverse possession doesn’t intervene with the owners decision to wait doesn’t mean its not adverse.
4. Fallon v. Davidson -1958- (hostile)
Decision: Even though Fallon bought property, James’ wife and kids were tenants in common and therefore Fallon did not purchase entire property. Ct. said that Fallon became a tenant in common and therefore since he had full right to have full possession of the premises then it was not hostile.
Problem: Better to focus on adverse possessor. Fallon acted like the true (complete) owner and therefore adverse to tenants in common. Implications would create partial owners that can never be taken away (destroy economic stability).
5. Ennis v. Stanley -1956- (hostile and claim of right)
Decision: Because adverse possessor had no intention to claim title (“only intend to claim what was your own”) it was not hostile (+1 no claim of right).
Problem: Because adverse possessor make a good faith mistake he doesn’t get land; however, if he had been conscious and in bad faith he would have received title. Subjective test applied, even though he possessed with claim of right (fence and used filed) and open and notorious.
6. In re Nisbet and Potts’ Contract -1906-
Decision: Promise made by original landowner carries over to the adverse possessor b/c of the nature of the promise (i.e. only enforceable when someone builds so statute of limitation never began).
Problem: How can privity have been maintained?
7. Lewicki v. Marszalkowski -1983- Rhode Island
Significance: Some affirmative action indicating to the grantee that the grantor’s occupancy is hostile to the grantee’s title is required. Exception to public.
8. Pool v. Corwin -1983- Indiana Appellate
Significance: If hostile acts are “so manifest and notorious that a reasonable owner should have been aware of them, no further notice is required”.
9. Slatin’s Properties, Inc. v. Hassler -1972- Illinois
Laches: Equity aids the vigilant and not those who slumber on their rights. Neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to adverse party, operates as bar in ct. of equity.
Significance: Even though the D never had actual possession, the paying of taxes for 37 years should have notified owner and therefore laches applies.
10. Tacking: To establish continuous possession for the statutory period, the adverse possessor can combine his period of possession with that of predecessor, as long as there is privity b/w possessors. “Tacking” is not permitted where one party has ousted another, or where the original party had abandoned possession and was replaced immediately by a third party. Must have privity with each other in order to tack (will, sale, gift, etc.).
Exception: When at the time the adverse possession began the true owner was unable to bring a lawsuit (i.e. infancy, incarceration, or insanity), most state statutes extend the period of limitation.