#8770 - Property - Property Law

Tussey_Property_Spring_2010

General Property Concepts:

Law creates rights as to things between people. It is really a concept of relationship between people as to things.

Rights in property only exist if the law recognizes and enforces them.

Things that can be property:

Doesn’t have to have monetary value (love letters, photos, etc.)

Doesn’t have to be scarce to be property (cars, clothes, etc).

Real Property= oldest, about power

Land or/ land fixtures on land, attached to land

Surface rights + possible mineral rights

Personal Property:

-Tangible (chattels) moveable, not attached, touchable

-Intangible- invisible, not touchable, stocks, bonds, debts, licenses, copyrights.

Rights Associated w/ Owning Property: (Inherently Limited, not absolute)

Right to exclude others

Right to Tranfer by selling, willing, etc. (alienability)

Right to Posses and use it

Social Concerns:

Free alienability

Stability of Titles

Productive Use (adverse possession)

Others eg: habitable housing, fair dealing quiet enjoyment

Justification for Private Ownership

First Possession or Occupancy, Labor Theory, Utilitarianism, Personhood, Civil Republicanism.

1. First Possession: Acquisition of Property By Discovery, Capture, and Creation

1. Acquisition by Discovery

Discovery -Entails “the sighting or ‘finding’ or unknown or uncharted territory”

-It is frequently accompanied by a landing and a symbolic taking of possession.

-It gives rise to an incomplete title that must be perfected by settling in and making an effective occupation.

Conquest: is the taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror.

First In Time: the notion that being there first somehow justifies ownership is a venerable and persistent one.

This was basically the institution of property, an agreement between men legalizing what each had already grabbed, w/o any right to do so, and granting, for the future, a formal right of ownership to the FIRST GRABBER. (arguments for this are weak).

Labor Theory: John Locke

Each person has exclusive right to and ownership of his body. So any labor he produces w/ his body and anything produced thereof becomes attached to his body giving him a right over it.

Property and Power- property confers and rests upon power, when gov. recognizes and enforces one person’s property right, it simultaneously denies prop rights to others.

2. Acquisition by Capture

Pierson v. Post (encourages peace and fairness)

Post out w/ hounds hunting a fox on public land, and Pierson sees fox and Post and shoots and kills fox.

Post tries say that he owned fox due to pursuit and first sight or discovery.

Court disagrees and says no property just from pursuit, must actually capture or at least have wounded the fox.

Keeble v. Hickeringhill (duck pond, other guy scaring them away so he could get them).

Court held that no right to interfere in this way w/ trade and livelihood by violence or malice but okay by other means like just lure them away.

Wild Animals= “fugitive nature” wander from place to place, same with fugitive resources (oil and gas) general rule that not owned until captured, and that while on the possessor or captors land are their property, but once they leave the land the captor looses possessory rights, unless can show animal has the habit of returning to possessor. (aminum revertendi)

Capture here means to mortally wound or kill or trap so as to bring w/in certain control of the hunter (not necessarily absolute control).

Reinjection of Oil once Captured-

Reinjection doesn’t give rise to liability for the use & occupation of parts of a reservoir underlying land of neighbors, even though the ownership of the reinjected minerals remains intact.

Water (not use regulation instead of capture)-

Groundwater-

American Rule= reasonable use, where rule of capture but wasteful use and harmful use is unlawful.

Surface Water-

Eastern States use Riparian rights rule where each land owner along a water source has right to use water, subject to rights of other riparians. (encourages development of uneconomical “bowling alley” parcels of land near the source, rations poorly when water level low).

Western States use Prior Appropriation or “first in time”. The person who first appropriates (captures) water and puts is to REASONABLE and Beneficial use has a right to superior later appropriator. (encourages premature development and excessive diversion)

3. Acquisition by Creation

Property in One’s Person (key to Locke’s theory of property: “every man has property in his own person”

Can we really say, without qualification, that you have property in yourself?

Ex. case Moore v. Regents (researcher doctor takes rare tissues and makes crazy money from them. Moore tries sue for conversion.

Court says lack property rights in your body or its tissues and so can’t assert conversion because it is a property based claim.

Right to Exclude: Trespass & Conversion

Exceptions: Human Rights Trump Property rights.

2. Subsequent Possession: Acquisition of Property by Find, Adverse Possession, and Gift

1. Acquisition by Find

“Finders keepers, losers weepers”

General rule = items that are lost become property of finder as to world except the rightful owner

Finder – person who first finds & takes possession of something presumed to be lost or mislaid by the owner.

-Must have the intent to control the object and must amount to an act of control

Armory v. Delamire Rule-

Title of finder of lost property is good against all but the true owner or a prior possessor ( is a relative relationship)

Difference between:

Lost: finder entitled to possession against all but true owner (kid finds jewel in chimney)

Misplaced: finder not rights to mislaid property (McAvoy v. Medina= Misplaced Pocketbook cause on counter not floor so not lost and finder can’t keep it shopkeeper keeps it cause in best position to get back to true owner)

Abandoned: finder entitled to keep abandoned property, cause true owner has renounced his claim, but the interests of the owner of the place where found still remain.

General Rules –

Usually objects found in a house are awarded to the landowner not the finder. ( may depend on if exercised possession of premises).

-McAvoy Rule- object found in public place (and not on the floor) will be treated as mislaid, not lost, and the locations owner has a better right than the finder.

-Objects found embedded in the soil on private land go to the landowner.

Trover- common law action for $ damages resulting from the defendants coversion to his own use of a chattel owned or possessed by the plaintiff.

The plaintiff waives his right to obtain the return of the chattel and insists that defendant be subjected to a forced purchase of the chattel from him.

Bailment- the rightful possession of goods by a person (bailee) who is not the owner

Voluntary Bailment- (valet, coat check).

Involuntary Bailment- lose it

In the case of found goods:

Bailment is involuntary from the standpoint of the owner but not that of the finder, Finder is a bailee and is holding prop till true owner reclaims so must use reasonable care.

Damages: Usually return of object or full value of the object if converted.

Subrogation: if after paying finder damages, the true owner comes forward, the goldsmith has to pay the owner but can then go after the finder for the damages paid.

2. Acquisition by Adverse Possession

A owns something, without A’s consent, B takes possession of it. B may become owner, and if not, may have some rights.

1. Theory and Elements of Adverse Possession

Controlled by Statute of limitations (20 years or even 6-10 years common) that fix period of time beyond which the owner of land or personal property can no longer bring an action, or undertake self-help, for the recovery of land from another person.

The running of the statute bars any action by the true owner but also VESTS NEW TITLE, by law, in the adverse possessor.

The new title “relates back” to the date of the event that started the statute running, and law acts as though adverse possessor owner from that point.

Policy Reasons: Morally wrong for true owner to allow a relationship of dependence to be established and then cut off the dependent party, if common man fails enforce rights law will do the same. Encourages efficient use of land.

Elements to Prove-

-Actual entry (starts the statute running)

- exclusive possession (can’t have permission, can’t be sharing w/owner or someone with better title or members of public) (provides notice)

-open and notorious (obvious to owner to put him on notice, or should have put on notice)(used in the same manner as would the true owner)

-adverse or hostile under claim of right/title (claiming directly in conflict w/ right of owner)

3 different approaches- Look at in terms of state of mind required of the adverse possessor :

1. State of Mind Irrelevant (objective standard) (majority)

must possess and act as reasonable owner would w/o permission.

2. The required state of mind is “I thought I owned it” mistake , believed rightful claim or had colorable title (written defective instrument)(subjective standard)(dwindling minority)

3. I knew I didn’t own it, but I intended to make it mine (aggressive Trespass)( rare but must be adverse knowingly from beginning)

-continuous & uninterrupted for the whole statutory period, owner can’t have reclaimed at all, must be continual use as the normal owner would use, so could be seasonal if that how owner would.

Rule of Thumb-

Use the property as the average or reasonable owner would do...