Midterm

Question 1

Occupancy theory/ Principle of first in time

Answer 1

Notion that being there first somehow justifies ownership in rights is a venerable and persistent one

Question 2

Acquisition by discovery

Answer 2

First to find land. Discoverer has exclusive right. Johnson v M’Intosh had right to occupancy but not to transfer

Question 3

Conquest

Answer 3

Taking possession of enemy territory through force, followed by formal annexation of defeated territory by the conqueror

Question 4

Acquisition by capture

Answer 4

Trying to assert ownership in wild animal Pierson v. Post

Question 5

Blackletter rule

Answer 5

To acquire title in a wild animal, one must either kill the animal or somehow secure physical possession or control over oit

Question 6

Acquisition by capture spectrum

Answer 6

Killing and possessing- always enough
Depriving animal of natural liberty aka trapping- sometimes enough
Mere pursuit- never enough

Courts often divert from rules if there are local customs (whaling case)

Question 7

Rule of return

Answer 7

If A owns an animal that often wanders off and comes back, capturing the animal will not create ownership

Question 8

Malicious interference

Answer 8

A person may compete, but cannot maliciously interfere with the lawful use of land of another person (duck pond case)

Purpose to interfere + interfere with trade

Question 9

Wild animals on land

Answer 9

Landowners are considered prior possessor of any animals on their land until animal leaves property

Question 10

Acquisition by find

Answer 10

Dominant concern to find true owner

• Rule: Lost property means property that was accidentally dropped, in general, a finder of lost property has title to the property, has superior rights to anyone but the true owner or a previous finder who then lost it.
• Lost, mislaid, abandoned
  o Owner > Finder #1 > Finder #2 > et

Question 11

Acquisition by find majority rule

Answer 11

A finder of lost property that is attached to real estate or buried under the land generally does not acquire a title that is good against the owner of the land.
o A person who owns the land constructively possesses items in the la

Question 12

Acquisition by find minority rule

Answer 12

Anything attached to, under, on, or in the land is in the possession of the landowner.
o If the finder “finds” something that has been “lost” but it is attached to or under another person’s land, the chain of title looks like:
 O (original owner) > Finder #1 (landowner) > Finder #2 (finder)

Question 13

Employee finding something

Answer 13

Consider the relation of the parties here, if employer/employee, then an employee/worker who finds property in the course of doing work on the land of another generally does not acquire title that is good against the other.

Question 14

Mislaid property

Answer 14

Mislaid means property that has been intentionally placed somewhere and accidentally forgotten, not governed by lost property
o Mislaid at shop- The owner of the shop would have superior title to finder (constructive possession) since he owned the place where the item was mislaid. Keep in mind the nature of the location.

Question 15

Bailment

Answer 15

a bailment is the rightful possession of goods by a person (bailee) who is not the owner. A voluntary bailment occurs when the owner of the goods (bailor) gives possession to the bailee, ex: check coat at a restaurant. In the case of found goods the bailment is involuntary from the standpoint of the owner, but not from that of the finder, who has chosen to take possession. By doing so the finder assumes obligations of the bailee. Modern view is to hold bailees to a standard of reasonable care under the circumstances.

Question 16

Abandoned property

Answer 16

• Don’t apply the find rule to abandoned property.
o Abandoned property no longer has a true owner, that prior possession was given up.
o Someone might have constructive possession over it (rings buried in mud on owner’s land)
o Abandoned property that is not in anyone’s possession is up for grabs, the finder then owns it.

Question 17

o Fact Situation: O loses a watch. F1 finds it and then loses it. Now F2 possesses it. F1 sues F2, what happens?

Answer 17

 Option 1: F2 returns the watch or keeps it and pays full money value to F1
 Option 2: F2 pays full value of the watch, discounted against the probability that O will come forward to retrieve the watch from F2.
 Option 3: F2 returns the watch to or pays full value to F1 and if O comes forward, O can sue F1 for the full value.
o Say all three then say which one you think is best and why and apply it to the situation.

Question 18

Regular adverse possession or color of title adverse possession

Answer 18

o Refers to a claim founded on a written instrument or a judgment/decree that is somehow defective and invalid
 Matters because there can be less requirements/a shorter statutory period if the adverse possessor has a claim of right under color of title.
 In addition, actual possession under color of title of any part of the land covered by the defective writing is constructive possession of all that the writing describes.

Question 19

Adverse possession

Answer 19

1. Entry is actual and exclusive
2. Entry is open and notorious
3. Entry is continuous for statutory period (10 year if not specified)
4. Claim adverse and under claim of right

Question 20

an entry that is actual and exclusive;

Answer 20

o Adverse possession depends on a SoL running against a cause of action, the entry creates the cause of action that triggers the statute
o This element requires the AP use the property like a true owner would
o Must be exclusive. If the owner or general public is using the land, that indicates that possession is not adverse at all because the adverse possessor is not taking steps to exclude others.
o This element reflects the “earning principle,”: interloper working the property, making it productive and by some means earning some rights.
o Presence on the property, maintaining the property, paying the property taxes/utilities on the property may be enough
o If you are only using the property seasonally it may be difficult to demonstrate your entry is exclusive because how will you show that the true owner isn’t using it when you aren’t?

Question 21

Open and notorious

Answer 21

o Adverse possessor’s use would put a reasonably attentive property owner on notice that someone is on their property, however, this does not require actual notice.
 Reflects the “sleeping principle,”: penalize dormant and negligent land owner for sleeping on his rights
 Test of notoriety is objective, must consider the nature of the property.
o Different attitude surrounding boundary line disputes
 For open and notorious here, no presumption of knowledge arises from a minor encroachment along a common boundary, in such a case, only when the owner has actual knowledge thereof may it be said that possession is open and notorious.
 Three other relevant doctrines relevant to boundary disputes:
(1) Agreed Boundaries: If there is uncertainty between neighbors as to the true boundary line, an oral agreement to settle the matter is enforceable if the neighbors subsequently accept the boundary line for a long time.
(2) Estoppel: When one neighbor makes representations or acts in a certain way in regards to the location of a common boundary, and the other neighbor then changes her position in reliance on the representations/conduct, the first neighbor is estopped to deny the validity of the statements/acts.
(3) Acquiescence: long acquiescence is evidence of an agreement between the two parties fixing the boundary line.

Question 22

Continuous for the statutory period; (jxs vary substantially as to the SoL, 10 years pretty standard)

Answer 22

o Does not have to be literally constant
o Requisite possession requires such possession and dominion as ordinarily marks the conduct of owners in general in holding, managing, and caring for property of a like nature and condition.
o Continuous possession can be contextual in the sense that court may only require possession consistent with the nature and circumstances of the property (living in a summer home only in the summer for example)
o If the AP abandons the property before the SoL has run, the whole process begins anew
o Tacking in the adverse possession context (right to add prior periods of AP):
 If certain conditions are met, the new adverse possessor can add prior periods of adverse possession, the key condition is privity
 Privity means some meaningful relationship between the parties with respect to the land. (Ex: transfer by deed)
• Doesn’t matter that the relationship is based on a faulty deed; there was a contract, a real substantial relationship.
 A series of trespasses by different trespassers throughout the statutory period with no privity between the trespassers generally cannot be tacked to establish continuous occupancy for the statutory period.

Question 23

Claim adverse and under a claim of right

Answer 23

o Against the right of the true owner and without permission (Hostile)
o Mental State; Three different approaches: (APPLY ALL 3 ON EXAM)
 Objective standard (Majority): state of mind is irrelevant, what matters is the behavior of the adverse possessor, did the adverse possessor behave like a true owner would?
 Good Faith: “I thought I owned it,” mistake is enough
 Bad Faith: aggressive trespasser, “I thought I didn’t own it, but I intended to make it mine.”
 For minor boundary disputes, the majority rule is the objective standard
o An oral disclaimer by the adverse possessor that the property was owned by the other person first doesn’t matter if the SoL has already run. Conveyance of land must be in writing, so an adverse possessor cannot just give up land by an oral statement. Really just goes to show what the nature of the adverse possessor’s possession was. Once an adverse possessor acquires title by adverse possession, it is their title; they can’t lose the title except in ways a regular owner could.
o Adverse Possession generally does NOT run against the government; however, there are some state statutes that allow it, though it is very rare.

Question 24

Adverse Possession of chattels (personal property)

Answer 24

• Personal property is different because of open and notorious; way more movable and far easier to hide.
• Three approaches to Adverse Possession of Chattels:
  o Old School Adverse Possession
   Open and notorious is difficult because chattels are mobile.
  o Discovery Rule: (substitute to adverse possession) a cause of action will not accrue until the injured party discovers, or by exercise of reasonable diligence and intelligence should have discovered, facts which form the basis of a coa and the identity of the possessor of the chattel
   Factfinder will look at what options were available vs. what the owner actually did
  o New York Rule: only the true owner’s demand on the possessor starts the SoL
• Tacking allowed here?
  o Some courts say no, SoL begins anew every time that the chattel changes hands
  o Other courts allow it, only so long as the possessors are in privity with each other
• A thief does not have, and cannot pass good title, but can acquire title by adverse possession
• If a BFP, w/o notice of wrongdoing, buys the stolen item from a UCC merchant, they have good title.

Question 25

Acquisition of gift

Answer 25

Intent
Delivery
Acceptance

Question 26

Gift inter Vivos

Answer 26

Gift given when your alive

Question 27

Gift causa mortis

Answer 27

Gift given with immediate death looming. Conditional gift as if they recover gift is no longer valid. Difficult to prove delivery if it it symbolic or constructive

Question 28

Gift: intent

Answer 28

1. Intent: donor must intend to make an irrevocable present transfer of an existing interest in the property.
   a. Ownership/property can be divided along a timeline (Gruen v. Gruen)
   i. In some jurisdictions, the intent required to make a present gift may be satisfied by the donor’s intent to give the donee an immediate, irrevocable, and unconditional right in property even though the donee will not have possession until a future time.
   c. correct intent test is whether the maker intended the gift to have no effect until after the maker’s death, or whether he intended to transfer some present interest

Question 29

Gift: delivery

Answer 29

There must be a delivery of the gift, either by a physical delivery of the gift or a constructive or symbolic delivery sufficient to divest the donor of dominion and control over the property.
a. Usually the standard is actual physical delivery
b. However, constructive/symbolic delivery may be permitted
i. Constructive delivery: handing over a key or some object that will open up access to the subject matter of the gift
ii. Symbolic delivery: handing over something symbolic of the property given (usually a written instrument)
c. If it would not have been difficult, then actual delivery will usually be required. Some jurisdictions are still very stringent on actual delivery unless it would have been extremely difficult.
d. If we are talking gift causa mortis, the court may not allow constructive/symbolic delivery
e. Many cases recognize the symbolic delivery of property if actual delivery is inconvenient or illogical (in Gruen, because the donor retained a lifetime right to possess, it would have been illogical for the donor to physically deliver the painting)
i. Some jurisdictions don’t accept symbolic delivery at all.

Question 30

Constructive delivery

Answer 30

Give something that opens up gift aka key

Question 31

Symbolic gift

Answer 31

Give something symbolic aka title deed toy car

Question 32

Acceptance

Answer 32

a. When the gift is arguably of some value to the donee, the law will presume an acceptance.

Question 33

Do intectual property

Question 34

Intent to make a _______ gift

Answer 34

Intent to make a PRESENT gift

Question 35

Gruen v. Gruen

Answer 35

Father maintained lifetime possession. Gave an immediate, irrevocable, and unconditional right in property even though possession will be at a later time

Question 36

Intellectual property rights do not protect ideas or facts

Answer 36

Intellectual property rights do not protect ideas or facts

Question 37

copyright

Answer 37

original works of authorship

Question 38

Patent protects:

Answer 38

process, machine, manufacture, or composition of matter

Question 39

Copy right

Answer 39

Protects expressions. not ideas or facts
Must be
Originality- independent creation of author and show some level of creativity
work of authorship-literary works (including computer programs); musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audio-visual works; sound recordings; and architectural works
fixation- Means that the work be fixed in some tangible medium

Question 40

Fair use doctrine (Important defense to infringement claim)

Answer 40

Purpose, character of use
Nature of copyrighted work
Substantiality of portion used
Effect on market or value of copyrighted work

which permits unauthorized copying in some circumstances so as to further copyright’s very purpose to promote the progress of science and the useful arts

4 and 1 are most important

Question 41

Patent protection requires

Answer 41

Patentability- a process, machine, manufacture, or any composition of matter
Novelty- Not already known to the public
Utility- some benefit to humans
non-obviousness- significant technological advancement
enablement- the application must provide a useable description

Question 42

Establishing copyright infringement

Answer 42

Ownership of a valid copyright; and

Copying of constituent elements of the work that are original