Variations of acquisition first, subsequent, and adverse

Question 1

Ferae Naturae (wild animal) Majority Rule and Minority Rule

Answer 1

• Pierson v. Post – positivism v. pragmatism
o Majority Rule – Rights vest when hunter deprives animal of natural liberty (does not require physical seizure, it is enough that you mortally injure them); rule encourages clarity in the law
o Minority Rule – Hot pursuit; problems with certainty; majority rule takes away the spirit of hunting but also diminished the cost/benefit analysis of hunting rodent and may lead to over extraction

Question 2

Constructive Possession (Ratione Soli)

Answer 2

Wild animals on your land, while not in your possession, cannot be poached

Question 3

Limits for Ratione Soli

Answer 3

o Trespassers – no right to possession so as to discourage trespassing
o Declaring ownership by words is not sufficient, have to make affirmative action, making the ferae naturae your own

Question 4

Oil & Gas Rule

Answer 4

– Milkshake rule - First Capture rule applies, unless capture is by slant drilling (illegal - trespass)

Question 5

Groundwater - Majority v. TX

Answer 5

• TX: Sipriano - First Capture rule applied, but subject to limitations (no wasteful/harmful use to neighbors) and no slant drilling
• Other 49 sattes: reasonable/ correlative rights (10% of land above water = 10% of water rights)

Question 6

Riparian water (water/treams) - Majority v. Minority

Answer 6

• Riparian Rights (Eastern/Majority) – Common law: no interference with natural flow; modern rule: reasonable use (benefits v. harms again)
• Prior Appropriation (Western/Minority) – First capture by anyone (i.e., non-riparians) - Limits: lapse of use, beneficial use (CO rule), riparians (CA rule)

Question 7

Administrative Overlap w/ Water Rights

Answer 7

 Administrative overlap – Sipriano
• TX Constitution said legislative in charge of groundwater conservation and they create districts [local control upon approval] per legislation. Sipriano chose wrong remedy – should’ve gone to groundwater conservation district (even though no GCD to complain to. Could’ve petitioned leg to make one, which Great Spring Waters shut down)

Question 8

Acquisition by Find

Answer 8

Relativity of title where there is no “true owner,” but relative to the status of others;

• Policy Consideration – Makes it easier to trace back line of title to the valid prior possessor and true owner

Question 9

Pierson v. Post

Answer 9

Negative iteration: mere pursuit insufficient to create ownership in wild animals
Positive iteration: deprivation of wild animals’ “natural liberty” necessary to create ownership

Question 10

Elements of a finder

Answer 10

o Intent to own, and

o Actual control of the found object

Question 11

General (Armory) Rule - is the location of the property relevant?

Answer 11

– Finder has ownership rights against all the world except the prior valid possessor

o Location of Property – Irrelevant if public place, private place open to the public or non-resident owned-residence

• Policy – Social costs, HBU (highest and best use), deterrence in stealing, finders aims

Question 12

Property found on Private Property

Answer 12

• Ratione soli, The justification for assigning property rights to landowners over resources found on their own land
• Objects buried on or embedded in property belong to owner, see Elwes (ancient boat found while excavating), S. Staffordshire (ring embedded in pool – attached to land)
• Found objects on private property open to public belong to finder, see Bridges (lost bank note in store open to public)
• Found objects on non-owner-occupied property belong to finder, see Hannah (broach)
• Found objects on private property occupied by owner and not open to public belong to owner Property found on Public Property – Look to the status of property

Question 13

Typology of found property (McAvoy)

Answer 13

Lost property
-Finder acquires rights good against all but prior valid possessors
Mislaid property
-Finder becomes constructive bailee; no ownership rights vest, see Medina v. McAvoy
Abandoned property
-Finder acquires rights superior to immediately prior possessor

Question 14

Bailment

Answer 14

 Bailment: possession transfer without ownership/borrowing
• Mutual benefit: standard duties (negligence)
o Valet
• Bailor’s benefit: lowest duties (no gross negligence)
o Pet sitting
• Bailee’s benefit: highest duties (strict liability)
o Neighbor borrowing something

Question 15

Inter vivos

Answer 15

(something you give something to someone else during lifetime for no consideration)

o Intent – donor intends to make an irrevocable present transfer of ownership
 Cannot have a will substitute
 No conditions precedent, few conditions subsequent
• Wedding Rings
o Traditionally – M at fault, W can keep
o Modernly – No fault, W must return
 Remainder interest is still valid, Gruen
o Delivery – physical/constructive/symbolic delivery sufficient to divest the donor of dominion of the property
 Modern view is more that it’s a proxy of intent, so if clear intent, typically not as necessary
o Acceptance – largely presumed

Question 16

Causa Mortis

Answer 16

(in contemplation of imminent death)
o Made in contemplation of specific cause of imminent death
 Are revocable during imminent death period
 Automatically revoked upon survival
 Flexible on delivery/acceptance

Question 17

Justifying Adverse Possession

Answer 17

o Pro – Encourages efficient use of land (HBU); punished lazy landowners; settles claims and maintains clear titles; discourages social and wealth hierarchies where the rich can sit on the land
o Con – Rewards trespassing; diminished property rights rationale of choosing to not use property; creates opportunity for conflict (spill over effects on third parties); fundamental right to own property isn’t qualified by the duty to use it; Endowment Theory (people feel the loss of an asset as more significant than forgoing to opportunity to realize and apparently equivalent gain)

Question 18

Adverse Possession against Government Entities

Answer 18

majority does not allow adverse possession where the owner is a state actor (fed, state, local)

Question 19

AP Elements

Answer 19

o Actual - physical, roughly congruent with reasonable use
o Exclusive– of owner and anyone else
o Hostility –
 1. state of mind (“adverseness” or “claim of title”)
• Objective (Majority) – State of mind is irrelevant
• Good Faith (Minority) – “I thought I owned it” (e.g., boundary disputes, bad survey)
• Bad Faith (Minority) – “I knew I didn’t own it, but I intended to make it mine”
 2. CONFLICTING TITLE, claim the land in a way that is inconsistent with the owner
o Open and Notorious – noticeable to reasonable observer
o Continuous for the statutory period; abandonment restarts SOL clock

Question 20

Tacking

Answer 20

o AP periods [AP 1 -> AP 2] can be tacked:
 w/ privity of estate (title deed, will)
 Or “reasonable connection” Howard
 Does not apply to successive ownership periods

Question 21

AP Against the government

Answer 21

o Basic rule: you cannot have adverse possession where the owner is a state actor (federal, state, or local).
 “Time runs not against the king.” –Blackstone
o Possible exception: state acting in proprietary not governmental capacity
 E.g., land used to extract minerals for state revenue, not open to public for use

Question 22

Color of Title – chain of title with invalid/flawed deeds

Answer 22

o Adverse entry under color of title – not legally entitled to property due to procedural flaws
 May broaden scope of actual entry due to constructive adverse possession
• What you are AP is what is described in deed as opposed to physical possession
 May reduce applicable time period (Texas) – more favorable
 Easy case when no one else on land – can be complicated when someone else lives on land, as can’t believe you own the whole then
• Owner negates constructive AP, so you only get what you possess

Question 23

Disability

Answer 23

If the landowner is a minor, mentally disabled, in military service or imprisoned, then the statutory period does not run until the disability is cured.
o Qualifying disability must have existed at the time of adverse possession, and
o Cannot tack successive disabilities
o Adverse possession period (whichever is longer) =
 Adverse entry + 21 years, or
 Cure of disability + 10 years

Question 24

Texas Adverse Possession

Answer 24

o Actual Possession
o Exclusive Possession that is not interrupted by an adverse suit to recover the property
o Open and Notorious
o Hostility – a claim of right that is inconsistent with and is hostile to the claim of another person
o Continuous
 Statutory periods
• Color of title – 3 years
• Cultivate/use + tax + registered deed – 5 years
• Mere cultivation/use – 10 years

o Disability
 Age of minority (18 and under), unsound mind, serving in US military during time of war
 Outside limit for tolling due to disability – 25 years

o Tacking – there must be privity of estate between each holder and his successor
o AP against the state – not permitted for land dedicated to public use