Midterm Flashcards
Occupancy theory/ Principle of first in time
Notion that being there first somehow justifies ownership in rights is a venerable and persistent one
Acquisition by discovery
First to find land. Discoverer has exclusive right. Johnson v M’Intosh had right to occupancy but not to transfer
Conquest
Taking possession of enemy territory through force, followed by formal annexation of defeated territory by the conqueror
Acquisition by capture
Trying to assert ownership in wild animal Pierson v. Post
Blackletter rule
To acquire title in a wild animal, one must either kill the animal or somehow secure physical possession or control over oit
Acquisition by capture spectrum
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)
Rule of return
If A owns an animal that often wanders off and comes back, capturing the animal will not create ownership
Malicious interference
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
Wild animals on land
Landowners are considered prior possessor of any animals on their land until animal leaves property
Acquisition by find
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
Acquisition by find majority rule
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
Acquisition by find minority rule
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)
Employee finding something
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.
Mislaid property
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.
Bailment
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.
Abandoned property
• 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.
o Fact Situation: O loses a watch. F1 finds it and then loses it. Now F2 possesses it. F1 sues F2, what happens?
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.
Regular adverse possession or color of title adverse possession
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.
Adverse possession
- Entry is actual and exclusive
- Entry is open and notorious
- Entry is continuous for statutory period (10 year if not specified)
- Claim adverse and under claim of right
an entry that is actual and exclusive;
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?
Open and notorious
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.
Continuous for the statutory period; (jxs vary substantially as to the SoL, 10 years pretty standard)
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.
Claim adverse and under a claim of right
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.
Adverse Possession of chattels (personal property)
- 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.
