property

Question 1

Kinds of property

Answer 1

real property, personal property

Question 2

real property

Answer 2

rights in land and anything attached to the land

Question 3

personal property

Answer 3

chattels: items of tangible, visible, personal property
-exceptions: human body parts, wild animals roaming free

intangibles: stocks, bonds, patents, trademarks, copyrights, trade secrets, ect

Question 4

types of property

Answer 4

no property: nobody has any rights

common property: everybody has equal rights

state property: the government owns all rights

private property: one or more people hold the rights

Question 5

theories justifying private property

Answer 5

first occupancy, labor in the commons, utilitarianism, personhood theory, tragedy of the commons, tragedy of anti commons

Question 6

first occupancy

Answer 6

he first person to occupy, capture, or possess something owns it

Private property rights arising from unowned natural resources; used to resolve difficult priority disputes

Question 7

Labor-in-the-Commons

Answer 7

persons are entitled to the property produced by their own labor

A person owns her body and thus also owns the labor her body performs

Question 8

Utilitarianism

Answer 8

private property exists to maximize the overall happiness (or utility) of all people

Rights are allocated and defined in the manner that best promotes the general welfare

Question 9

Personhood Theory

Answer 9

private property is essential for full development of the individual self

Some people define themselves through their property (even a particular chattel); seeks to maximize utility by protecting a person’s emotional or psychological happiness

Question 10

Tragedy of the Commons

Answer 10

if no property exists in a valuable resource, it will be overused and eventually depleted

w/o private property, nobody has an incentive to conserve or protect the resource (i.e. overgrazed public pasture; overfished unowned waters)

Question 11

Tragedy of the Anti-Commons

Answer 11

if too many property rights exist in a resource, it will be under-used and gridlocked

Unless rights can be reduced, allocated, or restructured, nobody has the ability to exploit the resource as a coordinated bundle of sticks (i.e. patent thickets, Moscow storefronts, air traffic control standards)

Question 12

rights to wild animals

Answer 12

first occupancy theory, following industry customs

Question 13

First occupancy theory

Answer 13

ownership of a wild animal requires bodily possession or capture

Other ways to capture: mortal wounding plus continued pursuit of the animal; trapping or netting the animal

Pierson v Post – pursuit of fox alone does not constitute occupancy

Hunting and fishing today are regulated usually by statute or ordinance

Question 14

Following industry custom

Answer 14

Ghen – whaling custom was followed by court

Industry norm adopted as a legal rule –

It comports with judicial decisions; it is reasonable; it is limited to the [whaling] industry; and it has been recognized and obeyed for many years

Without adopting a rule like the one above, might undermine the industry (policy)

Question 15

rights to water

Answer 15

water is “tangible”, but has fugitive or fugacious character not unlike that of intangible property

Riparian Owner’s rights (those who own land bounding upon a water course) , Other Water Related Rules

Question 16

Riparian Owner’s rights

Answer 16

Evans – RP has a usfurctuary (right to use or enjoy, without owning) right to use the water for business purposes but must do so as to not injure any other RP

RP’s use must be a reasonable one

Captured water = when RP owner lawfully removed water from a stream, she owns the water, as reduced to possession (occupancy/capture like Pierson)

Common law rights – only landowners on banks of waterways have the right to use water there

Question 17

Other Water Related Rules

Answer 17

Public Trust Doctrine: navigable water are deemed to be held in trust for the public by the sovereign (State) and not owned by private individuals

Underground water:

Traditional rule – water below the surface is property of the owner of the soil, who may exploit water from underground springs in a neighbor’s tract (absolute ownership rule)

Modified rule – soil owner must be reasonable in exploiting found water, just as with surface water, and must use extracted water in for reasonable purposes and not transport it away

Common law prior-appropriation water rights: non-RP owners may obtain water rights to water in waterways in order of priority of acting for beneficial use (“first in time, first in right”)

Statutory/admin water rights: states have created agencies or officials to allocate and adjudicate water rights

Some Surface Water Rules

Common enemy rule: this favors an improver of property at the expense of affected neighbors

Civil law rule: upland owner has a natural servitude in the lower land to accommodate natural flow (but no more than natural flow)

Reasonable-use rule: a person altering land has a duty regarding surface water not to act unreasonably in the circumstances

This followed from Yonadi, where the rule was that one who alters the land, even by artificial devices causing increased concentration in surface water, is not liable for the resulting flow of surface water

Question 18

Rights to oil and gas

Answer 18

Traditional rule: the owner of the land owns everything from the heavens above the land to the center of the earth below it

Modifications: from 1850s – the fugacious nature of oil and gas posed problems (not as stable like other minerals)

Barnard – since oil and gas are fugitive in nature and will seek any opening in the earth’s surface, a landowner may place wells anywhere on her tract and may even crowd adjoining tracts so as to draw oil and gas from them

Some oil and gas rules

Traditional capture theory – oil and gas are “fugitive” things like wild animals

Later doctrine of correlative rights – each owner has a right to a fair and equitable share of oil and gas under his land as well as to protection from negligent damage to the producing formation

Many statutes regulate wasteful drilling and encourage rational development of the resources

Question 19

Conveyance

Answer 19

the land’s owner conveys title to another by deed, either in a sale transaction or by gift

Question 20

Inheritance

Answer 20

the land’s owner dies intestate, with the land passing to the owner’s heirs as identified by the applicable state descent and distribution statute

Question 21

Devise

Answer 21

the land’s owner dies, having executed a valid will that makes a testamentary gift of the land

Question 22

Color of title

Answer 22

means a deed or other instrument of conveyance that purports to convey title to the land in question

Question 23

Jennifer decides to purchase a new home. Reading the paper, Jennifer discovers that the county is about to sell several homes at auction in order to satisfy unpaid tax liens. Jennifer goes to the auction and purchases one of the homes for $50,000. She receives a deed to the home from the county.

As it turns out, the county failed to give notice of the sale to Steve, the previous owner of the home (the owner who had failed to pay his taxes). For purposes of this question, assume that the county’s failure to give Steve notice prior to the sale means that the sale violated the state constitution and was thus invalid.

Does Jennifer have possession under color of title?

Answer 23

Yes: The deed that the county provided to Jennifer constitutes color of title. Thus, even though the deed was invalid and did not pass title to Jennifer, she is in possession of the land under color of title.

Question 24

Adverse possession elements

Answer 24

C: continuous
O: open and notorious
A: actual and exclusive
H: hostile

Question 25

Rip owned a parcel of land, CALIacre, in another state. [Rip had purchased CALIacre for investment purposes, and the land was completely undeveloped when he purchased it.] Several years later, Tracey took possession of CALIacre, placing a trailer on the land and thereafter occupying the trailer as her residence. Tracey remained there for 15 years. At no time during this period did Rip take any action to eject Tracey from CALIacre. Now, after 15 years, Rip has sued to eject Tracey from CALIacre and to recover damages for trespassing for the previous 15 years (equal to the fair market rental of the land over that period).

The state’s statutes require that any action to recover of possession be filed within 10 years from the date that the cause of action first accrued. If the court concludes that Tracey’s possession of CALIacre was open, hostile, continuous and exclusive for 15 years, which statement is correct?

Answer 25

Rip cannot recover possession of CALIacre, and he cannot recover any damages on account of Tracey’s possession at any time during the previous 15 years.

Question 25

subjective “good faith”

Answer 25

under which the possessor’s claim is hostile only if the possession is the result of a good faith mistaken belief that the possessor really owns the land in question

Question 26

In 1960, Frank (a resident of New York) purchased CALIacre, 5,000 acres of land in central South Dakota, certain that someday central South Dakota would become a vacation mecca and that the land would skyrocket in value. CALIacre remained undeveloped and Frank did not take possession of it.

In 1970, Lisa, who owned a ranch adjacent to CALIacre, was building a cattle fence along what she thought was the boundary between her parcel and CALIacre. By mistake, she put the fence in the wrong place and fenced in 4 acres of the CALIacre parcel along with her own land. Unaware of the mistake, Lisa thereafter maintained all of the land on her side of the fence, including the 4-acre portion of CALIacre.

In 1975, Frank died. His will devised CALIacre “to Jerry for life, then to Richard in fee simple absolute.” Jerry did not take possession of CALIacre, as it was not suitable for development.

In 2000, Jerry died. Richard immediately filed suit against Lisa, seeking an injunction to force her to move the fence back to its correct location.

The state’s statute of limitations for actions to recover possession of real estate is 10 years. Of the following statements, which reflects the most likely result of Richard v. Lisa?

Answer 26

Lisa will prevail, as she has acquired superior title to CALIacre by adverse possession.

Question 27

subjective “intent to claim”

Answer 27

under which the possessor’s claim is hostile only if the possessor subjectively intended to claim the land in question as her own, without regard to the true boundary lines, but is not hostile where the possessor did not intend to claim ownership of land that did not actually belong to her.