Possession & Ownership

Question 1

What is Real Property?

Answer 1

Land & improvements attached to land (e.g. buildings, fences, dams, etc.)

Question 2

What is Personal Property?

Answer 2

Property that can move. Property other than real property. (Cars, books, tables, clothes, computers)

Question 3

What is Tangible Personal Property?

Answer 3

Property of a physical nature. You can see and touch it. (Cars, books, clothes, jewelry, coins, paper money)

Question 4

What is Intangible Personal Property?

Answer 4

Assets that cannot be touched or seen but have value. (Bonds, stocks, patents, copyrights)

Question 5

What is a fixture?

Answer 5

Personal property, permanently attached to land that can be removed. (Dishwasher installed into a kitchen cabinet). Sometimes subject to rules applicable to personal property and sometimes to rules applicable to real property.

Question 6

What is the Principle of Discovery? Does it work?

Answer 6

If you were the first person to discover the property, you are the owner. Typically does not work.

Question 7

What is the Discovery + Occupation Rule? How does it work?

Answer 7

If you discover land for the first time, then occupy it and plant crops for example then you own the property. Respected more than discovery.

Question 8

When are land title transfers valid? What is the relevant case law?

Answer 8

LTT are only valid when made under the rule of the currently prevailing government.
Johnson v. M’Intosh: dispute between titles of land, one from NA Tribe and one from US Gov.

Question 9

What is possession? What are the elements of possession?

Answer 9

Controlling or holding of personal property, with or without a claim of ownership.

Elements: (1) an intent to possess on the part of the possessor, and
(2) his or her actual controlling or holding the property.

Question 10

Who does a possessor have superior rights against? What are a possessor’s rights when it comes to “stolen” property?

Answer 10

Possessor has superior rights to personal property against all except those having higher rights or a title. Can recover possession of an item of personal property, or recover damages for its injury or destruction.

Question 11

What is the First-In-time, First-in-right rule? Give examples of when it does and does not work?

Answer 11

Establishes priority of rights based on the time of acquiring the right in question.

Works: Parking spot. The person who parks there first generally has ownership of the parking spot.

Does not work: After property is sold to good-faith purchaser.
If title is acquired from a thief. Title from a thief is void title.
If adverse possessor acquires title superior to those who came into possession before they did.

Question 12

Wild Animals! What is the rule for possession? What is the relevant case law?

Answer 12

First-in-time, first-in-sight. Post v. Pierson. Ownership is acquired through occupancy. Occupancy can be established by mortally wounding the animal, capturing from a distance, and at most physical possession. Title comes from ACTUAL possession, not from mere pursuit of the wild animal/property.

Question 13

What are some other situations with possession influenced by Pierson v. Post?

Answer 13

(1) Oil flowing back and forth between properties belongs to the person who captures it first
(2) Fracking
(3) Water Rights: capture rule with a reasonable ceiling.

Question 14

What inefficiencies can be created by Pierson v. Post rule as it relates to Oil, Fracking, and Water Rights?

Answer 14

Encourages people to drill too deep and too fast to suck oil. Everyone has an incentive so resources will be overused.
Solution: (a) Bring torts suit against people who drill excessively.
(b) Unionization district: regulates rate at which oil can be extracted.
Why is water rights capture rule inefficiency?? ADD THIS

Question 15

What constitutes Mortally Wounding an animal? What type of possession is obtained?

Answer 15

(1) the wounding (objectively) is likely to prove fatal to the animal
(2) shows subjectively that the pursuer intended to follow the hunt with a kill and is not just out for the enjoyment of the chase.
Constructive possession of an animal.

Question 16

If you are the owner of a strip of land near the river can you take water and put it into your mill?
Two viewpoints East v. West (Best)

Answer 16

West Coast: First possession rule. Set up mill and first person to use the water owns it/has first priority.

East Coast: Reasonable use. Don’t take too much or more than your fair share.

Question 17

What is Constructive Possession? Provide Some Examples.

Answer 17

To be in legally in possession of something without physically or actually possessing it.

Examples: (1) Animals with a habit of returning are constructively possessed. (Deer that keeps coming back).
(2) Owner of land with oil, gas, or other minerals lying beneath its surface.
(3) Wild animals on property WOBBLER

Question 18

HYPO: You capture a wild animal on someone else’s land. Who gets possession? What if you are or aren’t a trespasser? Give some policy?

Answer 18

If you are a trespasser, you can not obtain valid title. Owner of real property has constructive possession of wild animals on land.
Policy: Trespasser is a wrongdoer. You can not profit from your wrong. You should not be trespassing on the land.

Question 19

What is custom? What are the elements?

Answer 19

Market or locale specific rules.
Applied when:
(1) its application is limited to the industry and limited to those working in it.
(2) Its recognized by the whole industry.
(3) It requires in the first taker the only act of appropriation that is possible
(4) its necessary to the survival of the industry, and
(5) the custom works well in practice.

Question 20

Policy: Why don’t courts use custom? Why is custom useful? (Both Sides)

Answer 20

Don’t use custom:
(1) Custom only benefits the industry not society as a whole.
(2) Even though it benefits industry, might be dangerous to those employed in it
(3) Wasteful of the resource

Use Custom (Wonnell likes):
Customs typically evolve in the direction of efficiency, maximizing overall value
(EX: Whales, Parking Spaces)

Question 21

How do you gain possession of a whale? What’s the case law? What’s the concept for one way to possess an animal?

Answer 21

A person establishes property right over whales when they take possession of the carcass and take practical steps to secure it, in accordance with custom.

Ghen v. Rich

There are customs in place for hunting/capturing an animal. So, if you are trying to catch a certain animal and there is a custom in place you gain possession by following it. Issue spotting: Is there a custom in place for the possession of the animal?

Question 22

What is the custom for whales?

Answer 22

Person who shoots the whale owns the wale. Finder of a dead whale contacts the original whaler/owner. Owner establishes property claim in the whale, blubber, and oil therein.

Question 23

What is the rule for “constructive” possession/possession? What is the case law?

Answer 23

A property owner has a right to make lawful use of their property for profit without malicious interference from others.

Keeble v. Hickeringill.