Acquiring Possession Cases Flashcards
M’Intosh: “land sold by Indians”
Conquest: Indians had no authority to grant land in the first place. The only property right they held was occupancy. When a country is conquered, the territory is ceded to the sovereign of the conqueror to distribute as he chooses, thus Native American title is not valid.
–Discovery Theory: the right of pre-emption, can buy from Indians or obtain by conquest, the Europeans owned and the Indians occupied
Tee-Hit-Ton: Early form of eminent domain
Conquest: Original Indian title means mere possession recognized by Congress as only a right of occupancy. However, Indians can have a claim against a 3rd party for a wrongful taking, just not against the sovereign.
Passamaquoddy: “Great White Deadbeat Dad”
Conquest: There is a trust of fiduciary obligation on the US to protect; and owned by all Indian tribes covered by the statute.
* Non-Intercourse Act of 1790: Precluded private deals in Indian land, only the Sovereign, the President of the U.S. could make deals. They are subordinate sovereignty to the U.S. and the government.
Shack: “NJ migrant workers’ case.”
Relativity of Title: The owner in the interests of safety is allowed to make the visitor identify himself and state his purpose for the visit. The owner may not deny the worker his privacy or interfere with his opportunity to live with dignity. The rights of the workers are more important than the property rights of the owner. A man’s right in real property is not absolute but must not be used to injure another.
Brumagin: “Wall and peninsula”
Relativity of Title: Sufficient dominion & control (Possessio Pedis: foot hold) varies according to condition, size, purpose, & locality of land; it is often a question for the jury.
P had been practicing open, notorious acts of dominion, exclusive to himself.
Tapscott: “Tapsquatt”
Relativity of Title: The party in possession of real property has superior rights to land EXCEPT as to the rightful title-holder.
–By allowing people to take other’s property, it would be creating disorder, & to take therefore we seek to avoid this.
–Relativity of Title requires showing that you are entitled to land; NOT that the other person is not entitled to it
–Doesn’t matter that person never stepped on land
–Policy: by allowing people to take others property would be inviting disorderly scrambles for possession of property; must maintain peace
Ewing: “No Sleep Till Possession”
Adverse possession makes sure that owners do not “sleep on their rights”
–Mowing the lawn and raking the leaves are not enough to establish adverse possession.
McCarty “McCar-T (is for…)”
Tacking estates (rather than people)
Wallis “Gotta wall out the OO”
Possession must be adverse to the use of the owner.
Ennis “Oops!”
No adverse possession by mistake (MICHIGAN) (objective + subjective)
–Majority view – can adverse possess by mistake (objective only; subjective not necessary)
Lewicki “No Takebacks!”
Can’t adversely possess back from the same party the land you sold them.
Foote: “Foot without an ‘E’”
In the case of sunlight, the AP elements of Exclusivity, and Adverseness are missing, therefore he has no right to the claim.
–Unlike Tapscott & Ewing: the D took the property right from nature, not from P.
Prah: “Su-Prah-man”
(Superman get’s his powers from the sun. NERD!)
Adverse Possession: Different rights will be enforceable according to new techs. that emerge.
–Important that the Π advised the Δ of the problem prior to building
–Δ relies on the fact that he is building with the rules of the city
New Policy:
1) Regulated use of land, zoning, accept more interference with land.
2) Sunlight is now a source of energy; pro conservation
3) Constricted development: quality instead of quantity.
First Possession/Animals
1) Pierson v. Post->have to pierce the fox
–Mere pursuit of fox not enough; deprive of Nat’l Lib
–Own is to: hold title/conquer/dominate/mark
–Underlying tones of Utility->farmer keeps the fox b/c farmer –gets the best utility out of dead fox
2) Ghen v. Rich->not getting rich on my whale
–finback whale killed w/ inscribed bomb harpoon
–OO did all that they could do
–OO followed custom
–Custom: certainty; long time; awareness of outsiders; industry needs to survive; reasonableness
3) Hammonds v. Central Ky. Gas Co.
–O/G are minerals ferae naturae
–Gas Co released gas back into the wild void
