Property Outline
Methods of Acquisition
· Discovery:
o International law justification: Consensus among European nations that the nation who discovers land gets ownership.
o Domestic law justification: Virginia law says only the state can buy land from natives.
o Lockean Justification: Improvement of land creates property rights therein. (labor theory).
o Case: Johnson v. M’Intosh (Indian Land)
§ Rule: All land grants derive from the government, Indians have no legal standing to sell.
§ Policy justification: above, and settled expectations. Land from the government is easy to establish title to. Much harder to establish title from an array of tribal leaders, who do not necessarily conceptualize of property in the same way as Europeans. Settled expectations are important, because reassigning ownership in land tends to cause conflict. See Zimbabwe.
o First in Time: General theory is that the first person to occupy the land (or seat or parking space) has ownership. Functions well to explain who has property, but less well as a justification for why they should have it.
· Capture:
o Ratione Soli – Landowner possesses animals on the land.
o Case: Pierson v. Post (Foxes; Saucy Intruder)
§ Rule: Must have actual possession (or certainty of capture) to establish right by capture.
§ Justification: Actual possession is easy to determine, minimizes conflict over ownership. This may maximize the capture of foxes, because it says anyone who kills a fox gets to keep it.
§ Dissent: Custom should dictate (Hounds of Imperial Stature). Argues opinion should favor destruction of foxes, and that we must encourage hunters. Hunters who put in labor only to have their fox stolen will stop hunting. Echoes of Locke. Reasonable prospect versus certainty.
o Case: Keeble (Pond Owner) v. Hickeringill (Disturber of peace) (Duck Pond)
§ Rule: Malicious interference with trade is actionable.
§ Justification: Though not a trespass, shooting a gun over a duck pond to drive away ducks is a form of destructive interference with trade. Competition is OK, destructive competition is not. Schoolhouses example – you can compete by building a new school but not by shooting at the old school’s students. This is generalized to the way of making a profit.
o Case: Popov v. Hayashi (Barry Bonds’ Ball)
§ Rule: In cases where there is a prepossessory interest, the value of the property is split.
§ Justification: In the absence of third party intervention, it is likely but not certain that Popov would catch the ball. Court concludes this gives him a prepossessory interest in the ball. Hayashi actually captures the ball, and does not interfere with Popov to do so, and therefore has a valid possessory interest in the ball. The court can’t make up its mind, so it splits the value between the two.
§ Note: Strahilevitz hates this decision. The case doesn’t establish a norm for fan behavior. A clear rule in either direction, like Pierson v. Post, would better establish a clear.
· Find:
o Types of Found Property:
§ Abandoned
· Intentionally left behind. Finder has good title.
§ Lost
· Accidentally left behind. Finder has good title against all but the true owner.
§ Misplaced
· Purposefully placed, accidentally left behind. Finder has good title against all but the original owner.
· Misplaced property usually awarded to the owner of the premises on which it is found rather than the finder, to facilitate restoring the property to its original owner.
§ Treasure Trove
· Really only used in Britain. Money buried underground goes to the king. In US, usually goes to land owner. See pg. 107 for note cases.
o Case: Armory v. Delamirie (Chimney Sweep/Jewel) LOST
§ Rule: Finder’s title is good against the whole world except the rightful owner.
§ Justification: Property is about relationships between people. If we didn’t give finders title above all but the original owner, there would be a free for all for the ownership of found possessions. We don’t want to encourage people who find property to hide it away and never use it, in fear of it being taken by others. Also encourages search for original owner, as if they can’t be found, you have good title.
§ Professor Helmholtz says that the courts consistently award property to the honest finder, but not the dishonest trespasser. Even in cases where the subsequent finder is honest, and the original possessor is wrongful.
§ Replevin: An action for return of an item.
§ Trover: An action for damages.
o Case: Hannah v. Peel (Soldier/Jewel) LOST
§ Rule: When something is found on (not in or under) the land of another, finder has claim to title (to all but original owner). Otherwise, land owner has claim (to all but original owner).
§ Justification: Found in the house by someone engaging in otherwise meritorious conduct. Rule designed to encourage finding of property.
§ Exception to the general rule.
§ What is Hannah was a trespasser?
· Favorite v. Miller (Owner prevails unless trespass “trivial or merely technical.”)
· Bishop v. Ellsworth (No claim for trespasser.
· Hendle v. Stevens (Bishop is in error.)
o Case: McAvoy v. Medina (Barbershop/pocketbook) MISPLACED
§ Rule: Misplaced property (intentionally placed but unintentionally left) goes to the owner of the premises rather than the finder to facilitate return.
o Finds By Agents
§ Law all over the place. Jackson v. Steinberg (find by maid to hotel owner), Erickson v. Sinykin (interior decorator found money held to be abandoned, did not need to tell employer), Kalyvakis v. The T.S.S. Olympia (money found by ship steward held to be abandoned, rejected English master-servant exception.)
o Finds by Police Officers
§ Generally go to the person who called the officers: Hoel v. Powell.
o Shipwrecks
§ In Britain, if it washes up on shore, the king.
§ Traditional law a ship lost at sea remains owners property, unless title abandoned. Salvor gets salvage fee.
§ In US, finder gets wreck, unless embedded in land owned by another. The Abandoned Shipwreck Act of 1987 transfers shipwrecks embedded in state territorial waters to the state to develop their own rules for salvage.
o Bailment: One who has rightful possession of another’s property. Generally for safekeeping. Required to return property in same condition.
· Adverse Possession (Land)
o Elements of adverse possession
§ Actual
· Majority Rule: More than mere entry. Must use the land in the same manner that a reasonable owner would.
· Minority Rule: Some states have statutory requirements including enclosure. Tend to be antiquated and applied to rural land.
· Exception constructive possession: if you cultivate part of the land, you only get some of it, unless you have color of title (defective deed or will).
§ Exclusive
· Must not be shared with true owner or public. Must not be absolutely exclusive – needs to be reasonable owners use.
§ Open and Notorious
· Visible and obvious to reasonable owner. Not necessary to show actual knowledge, so long as diligent inspection would prove occupation.
§ Adverse under claim of right
· Three approaches to state of mind, all must be against consent of true owner:
o Majority is objective test (Connecticut rule): irrelevant.
o Good faith test (Maine test): Adverse possessor must believe in good faith.
o Intentional Trespass: Must know it is not his and intend to take it.
§ Helmholtz says that courts consistently rule in favor of good-faith trespassers but against bad-faith trespassers.
· In cases of boundary dispute
o The majority rule is that it is irrelevant what you intended.
o The minority rule (Maine) is that you must intend to claim to a specific line, whether or not it is the boundary.
§ Continuous
· Reasonable owner. Seasonal occupancy can be continual possession if it is the norm.
· Successive periods can be tied together (tacking) – claimants must be in privity (transfer made by deed. See, Howard v. Kunto.) No privity between trespassers.
§ For the statutory period.
· Varies from 5 to 40 by state, most states are 10, 15, or 20. Western states shorter, northeastern long.
o Some states require payment of taxes on the land.
o Special restrictions
§ Minor, incompetent, or imprisoned owner – period extended until disability is relieved.
§ Government Owner – Can’t adversely possess – held in trust for all.
§ Cotenant owner – Equal rights to occupy means no adverse, unless one claims sole ownership unequivocally.
§ Landlord owner – tenant with permission of landlord cannot get AP.
§ Future interest holder – Period starts over when the future interest vests.
o Other methods to solve boundary disputes:
§ Ad coleum Doctrine: Ownership of the soil also includes what is above & below the land (Marengo Cave Co. v. Ross)
§ Doctrine of Agreed Boundaries: if neighbors have an oral agreement to settle what the true boundary is, the matter is enforceable if that line is accepted for a long period of time
§ Doctrine of Acquiescence: Long acquiescence, even for a time shorter than SoL, is evidence of agreement between parties fixing a boundary line
§ Doctrine of Estoppel: When 1 neighbor makes indications of the location of a common boundary and the other neighbor changes his position in reliance on those representations, the 1st neighbor is estopped to deny the validity of his statements or acts
· Estoppel has also been applied when 1 neighbor remains silent
o Case: Van Valkenburgh v. Lutz (Angry neighbors)
§ Largely incoherent rules. Lutz claimed easement rather than ownership originally, therefore not adverse. Court also requires enclosure/improvement.
§ Confusing holding about hostility repudiated 2006.
o Case: Mannillo v. Gorski (Stairs encroachment)
§ Rule: A small encroachment (in this case 15-inches), unreasonable to notice without survey, does not constitute adverse possession.
§ Criticize maine doctrine, take Connecticut doctrine (intent doesn’t matter)
§ Rule in Mannillo forces conveyance to innocent improvers (pg. 135)
o Accidental improvement
§ If you improve land you mistakenly believe you own, balancing test!
o Case: Howard v. Kunto (Survey error)
§ Rule: Summer occupancy is continuous if that is normal use.
§ Rule: Tacking from good-faith deed transfer.
o What about Caves? Can’t adversely possess those, (not open and notorious). See Marengo Cave Co. v. Ross (pg. 125)
· Adverse Possession (Chattel)
o Traditional Approach: Apply AP to chattel just like land.
o Emerging approaches:
§ Discovery: Statutory period begins when true owner discovers that adverse possessor is in possession. (NJ Supreme Court rule, infra)
§ Demand and Refusal: Statutory period begins when the true owner makes a demand and the adverse possessor refuses. (New York Rule)
o O’Keeffe v. Snyder (Painting)
§ Rule: Establishes the discovery approach: once you know who has the property, the statutory period begins.
§ Allows tacking of possession between owners as long as there is privity.
§ Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts Inc. (pg. 155) indicates that in the case of stolen art, the court continues to apply a due diligence requirement on the part of the artist, which requires fact-based analysis on a case by case basis.
· Gift
o A gift is a voluntary, immediate transfer of property, without consideration, from one person to another.
o Elements:
§ Intent
· Can be express (via letter or statement) or implied (via act of giving)
· Future intent doesn’t count, unless contract.
· Conditional gift (engagement ring) – gift given in case of implied future condition (marriage).
§ Delivery
· Deed of gift: Formal written description of gift, sealed, used in English law.
· Constructive delivery: All jurisdiction permit when manual delivery is impossible. Constructive delivery is giving someone something physical that allows access (e.g. key to house, car, or dresser. Also, rebranded cattle. Location of buried treasure.)
· Symbolic delivery: Any symbol may in theory suffice, normally given via a written statement.
§ Acceptance
· Courts universally presume acceptance of an unconditional, valuable gift.
o Gifts causa mortis (Gift in case of imminent death)
§ Revocable until person dies. If imminent peril doesn’t kill donor, automatically revoked. Same 3 elements, plus expectation of death. Emergency substitute for a will.
§ People prefer wills, because if no witnesses, it can be taken advantage of.
o Special Cases:
§ Engagement Ring: Ring recurred to donor regardless of who broke the engagement (Lindh v. Surman, PA., 1990) Traditional rule is donor cannot recover if at fault.
§ Checks: O writes B a check and hands it to him. Before B cashes the check, O dies what result? Woo v. Smart (Va., 1994) says no gift until check paid because owner could cancel check. In re. Estate of Smith (PA, 1997) says gifts of checks are valid.
§ Gift of portable property by document: traditional rule requires delivery, restatement says document is just as good.
§ Safe Deposit Boxes: Manual delivery is required – putting things in a jointly owned box is not sufficient, even with a note indicating intent (159)
o Case: Newman v. Bost (Housekeeper)
§ Rule: Gifts causa mortis require some kind of delivery – no symbolic delivery in North Carolina.
§ Wills preferred to gifts causa mortis.
§ Modern trend is to enforce donative intent.
o Case: Gruen v. Gruen (Painting, symbolic delivery)
§ Rule: A letter can constitute symbolic delivery (painting, gives in fs absolute to kid with life estate in owner.)
§ A promise to give the painting to the kid when the father dies is not valid, as it is a will, and must go through the formalities of a will.
Managing Common and Disputed Resources
· The Commons
o Case: Tribune Co. v. Oak Leaves Broadcasting Stations (Spectrum as Property)
§ Holds: “Priority of time creates superiority of right.” (First in time). Tribune company via WGN has built up a significant interest in broadcasting on their spectrum, and the public interest supports giving them a property right – otherwise pirate stations will use the same spectrum to steal listeners.
§ Rational businesses wouldn’t invest in radio if they would see no return because of spectrum interference. (Tragedy of the commons.)
§ FCC eventually
· The Public Trust Doctrine
o Shorelines, Navigable Waterways (including rivers, lakes).
o Case: Matthews v. Bayhead Improvement Assoc. (Who owns wet sand?)
§ Bayhead has a private beach, and wants to deny non-Bayhead residents access during the summer.
§ Holding: Bayhead cannot deny access to the beach, because it is protected by the public use doctrine. They must be able to use the dry sand as well as the wetsand. Bayhead can charge a reasonable fee for usage.
§ Matthews court says that Public Trust doctrine 1) guarantees citizens right to access wet sand of beach. 2) Right to cross dry sand to reach wet sand (reasonable access). 3) Right to hang out on dry sand according to public trust doctrine.
§ Matthews takes a communal property regime and makes it open(ish) access. The court says that everyone needs access to the communal property, but it can still charge fees – probably to avoid a tragedy of the commons situation.