Week 3 Flashcards
AP is unique because the SOL ____ AND ___
cuts off plaintiff claims, shifts ownership
In AP, ____ trumps ownership
possession
Why is possession strict for AP cases
possessor rights no longer qualified by the TO
Requirements for AP generally
(1) SOL runs
(2) under claim of ownership/title
(3) actual or hostile
(4) open, notorious and visible
(5) continuous and uninterrupted
(6) exclusive (not shared with anyone else)
(7) Good faith vs. bad faith?
What does hostile mean
infringes on TO rights, TO not given permission to be on the land
what is color of title
piece of paper AP thinks authorizes them but is actually legally defective
Many states require color of title but it is __
never absolute
Color of title affects the ___
scope of the claim
Justifications for AP
(1) lockean –> owners should be good stewards but with AP possessor acting as owner should
(2) discourage disputes
Traditionally AP not allowed __
against the sovereign
Some states allow for ____ to extend SOL
disability (minor, insanity, sometimes imprisonment)
Scott says that for AP in Mississippi it must be ___
(1) under claim of ownership (2) actual or hostile (3) open notorious and visible (4) continuous and uninterrupted for 10 years (5) exclusive and (6) peaceful
Why is the open/hostile requirement subjctive in Scott
is blue paint really open/did TOs know its meaning
fence initial purpose to keep cattle out NOT to signal boundaries
Why is the continuous requirement subjective in Scott
is harvesting timber once every 10 years and issuing hunting licenses really continuous
Why not use a survey in Scott
not cheap to use here and may not give conclusive answers
Scott illustrates that sometimes AP used because it is ___
less expensive/more efficient to use it to resolve land disputes
Alternative answer to Scott problem
agreed boundaries: before SOL ran party behavior shows implicit agreement
Carpenter says that AP requires ___
good faith (minority rule addition to AP)
Good faith is sometimes called __
possession under color of title
Carpenter says that good faith can exist even when ___
knowledge of a defect in title
Majority AP rule says courts will not investigate ___ BUT __
litigant state of mind, tend not to like “squatters”
One problem with good faith requirement is that if TO sleeps on rights but ___
bad faith AP is it just no man’s land
Merrill thinks that TO should be able to sue AP ___
for damages/restitution if bad faith
Howard v. Kunto says that the Kuntos did ___
establish title to their summer cabin through AP
The Kuntos established AP through ____ because it was ___
seasonal occupancy, consistent with how a TO would behave
Howard defines continuous as ___
use of land aligning with its ordinary use
Howard says the purpose of continuos use is to ___
provide adequate notice to the TO
The Kuntos were also allowed to tack on the periods where ___
property possessed by their predecessors in the chain of title
Howard says there was privity because there was a ____ NOT a __
direct consensual exchange of rights, series of trespassors
Howard implies that you can transfer possessory rights ___
without ownership
For AP of personal property the SOL is usually ___
shorter and easier to satisfy
AP for personal property not possible for ___ because they can’t be ___
intangible rights, possessed
Three approaches for start of claim for AP of personal property
Conversion (Songbyrd)
Replevin/Demand (Guggenheim)
Discovery (OKeeffe)
Problem with AP in Songbyrd
If AP based on possession does it really apply if only suing for damages, also AP factors not really discusssed
Hinman is inconsistent with Jacques because it suggests that ___
actual possession and harm are required for trespass
Hinman maybe suggests that solving trespass issues is really about ___
transaction costs
Authors Guild v. Google holding
google books database akin to overflight issue, injury to each author is small and transaction costs of negotiating consent is enormous
Hinman decision is more in line with the ____ of property
bundle of sticks theory
Causby held that low overflights by military aircraft was ____ to be a ___
sufficiently noisy and frightening to chickes, taking of surface owner’s property
R4P distinguishes between airspace that is ___
possessed vs. non-possessed
R4P says if airspace unpossessed only liable for trespass if ___ OR ___
intrusion is permanent OR intrusion is temp but interferes substantially with use/enjoyment
Edwards v. Sims is about
cave entrance vs. cave below
Edwards holds under ad coleum a __
survey should be ordered and anything directly under Lee’s land belongs to Lee
Edwards majority analogizes the cave to ___
mineral rights/mining
Edwards dissent thinks that a ____ is silly
literal interpretation of ad coleum
Edwards dissent reasoning
(1) Lockean – shouldn’t be able to own that which you can’t use if it is a benefit to others that can use
(2) cave decreased value if Lee fences off his third
(3) classic bilateral monopoly
Rule of capture
for oil/gas first person to capture the resource owns it
As long as the surface owners does not _____, the driller can extract as much oil and gas as it can
drill a well that enters the column of space below another surface owner
Rule of capture is straightforward for ___ but harder for ___
solid minerals, fugacious ones
Issue with rule of capture
tragedy of the commons (excessive production/waste)
Current solution to tragedy of commons for oil/gas
regulatory schemes
One possible solution to problems of rule of capture is the ___ BUT ___
unification of oil field, very difficult
Briggs says that the rule of capture ___
applies in PA oil and gas including fracking
Briggs says that ____ don’t necessarily constitute a trespass
pressure differentials in hydraulic fracturing
Briggs rejects the _____ distinction
naturally vs. artificially induced flow
Briggs does not address _____ issues
slickwater and crack issues
R4P says that if the only injury from a subsurface trespass is the alleged drainage from a common reservoir then subject to injunctive relief only if ____
subsurface trespass substantially impairs another’s equal right to capture fugacious minerals or use/enjoyment of the surface
Public rights are vital to any property system because some resources are ___
too public for private claiming and would make private property worthless (constant negotiation)
Public rights can be for the Govt and not for the public like ___
military bases
