Week 3

Question 1

AP is unique because the SOL ____ AND ___

Answer 1

cuts off plaintiff claims, shifts ownership

Question 2

In AP, ____ trumps ownership

Answer 2

possession

Question 3

Why is possession strict for AP cases

Answer 3

possessor rights no longer qualified by the TO

Question 4

Requirements for AP generally

Answer 4

(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?

Question 5

What does hostile mean

Answer 5

infringes on TO rights, TO not given permission to be on the land

Question 6

what is color of title

Answer 6

piece of paper AP thinks authorizes them but is actually legally defective

Question 7

Many states require color of title but it is __

Answer 7

never absolute

Question 8

Color of title affects the ___

Answer 8

scope of the claim

Question 9

Justifications for AP

Answer 9

(1) lockean –> owners should be good stewards but with AP possessor acting as owner should
(2) discourage disputes

Question 10

Traditionally AP not allowed __

Answer 10

against the sovereign

Question 11

Some states allow for ____ to extend SOL

Answer 11

disability (minor, insanity, sometimes imprisonment)

Question 12

Scott says that for AP in Mississippi it must be ___

Answer 12

(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

Question 13

Why is the open/hostile requirement subjctive in Scott

Answer 13

is blue paint really open/did TOs know its meaning
fence initial purpose to keep cattle out NOT to signal boundaries

Question 14

Why is the continuous requirement subjective in Scott

Answer 14

is harvesting timber once every 10 years and issuing hunting licenses really continuous

Question 15

Why not use a survey in Scott

Answer 15

not cheap to use here and may not give conclusive answers

Question 16

Scott illustrates that sometimes AP used because it is ___

Answer 16

less expensive/more efficient to use it to resolve land disputes

Question 17

Alternative answer to Scott problem

Answer 17

agreed boundaries: before SOL ran party behavior shows implicit agreement

Question 18

Carpenter says that AP requires ___

Answer 18

good faith (minority rule addition to AP)

Question 19

Good faith is sometimes called __

Answer 19

possession under color of title

Question 20

Carpenter says that good faith can exist even when ___

Answer 20

knowledge of a defect in title

Question 21

Majority AP rule says courts will not investigate ___ BUT __

Answer 21

litigant state of mind, tend not to like “squatters”

Question 22

One problem with good faith requirement is that if TO sleeps on rights but ___

Answer 22

bad faith AP is it just no man’s land

Question 23

Merrill thinks that TO should be able to sue AP ___

Answer 23

for damages/restitution if bad faith

Question 24

Howard v. Kunto says that the Kuntos did ___

Answer 24

establish title to their summer cabin through AP

Question 25

The Kuntos established AP through ____ because it was ___

Answer 25

seasonal occupancy, consistent with how a TO would behave

Question 26

Howard defines continuous as ___

Answer 26

use of land aligning with its ordinary use

Question 27

Howard says the purpose of continuos use is to ___

Answer 27

provide adequate notice to the TO

Question 28

The Kuntos were also allowed to tack on the periods where ___

Answer 28

property possessed by their predecessors in the chain of title

Question 29

Howard says there was privity because there was a ____ NOT a __

Answer 29

direct consensual exchange of rights, series of trespassors

Question 30

Howard implies that you can transfer possessory rights ___

Answer 30

without ownership

Question 31

For AP of personal property the SOL is usually ___

Answer 31

shorter and easier to satisfy

Question 32

AP for personal property not possible for ___ because they can’t be ___

Answer 32

intangible rights, possessed

Question 33

Three approaches for start of claim for AP of personal property

Answer 33

Conversion (Songbyrd)
Replevin/Demand (Guggenheim)
Discovery (OKeeffe)

Question 34

Problem with AP in Songbyrd

Answer 34

If AP based on possession does it really apply if only suing for damages, also AP factors not really discusssed

Question 35

Hinman is inconsistent with Jacques because it suggests that ___

Answer 35

actual possession and harm are required for trespass

Question 36

Hinman maybe suggests that solving trespass issues is really about ___

Answer 36

transaction costs

Question 37

Authors Guild v. Google holding

Answer 37

google books database akin to overflight issue, injury to each author is small and transaction costs of negotiating consent is enormous

Question 38

Hinman decision is more in line with the ____ of property

Answer 38

bundle of sticks theory

Question 39

Causby held that low overflights by military aircraft was ____ to be a ___

Answer 39

sufficiently noisy and frightening to chickes, taking of surface owner’s property

Question 40

R4P distinguishes between airspace that is ___

Answer 40

possessed vs. non-possessed

Question 41

R4P says if airspace unpossessed only liable for trespass if ___ OR ___

Answer 41

intrusion is permanent OR intrusion is temp but interferes substantially with use/enjoyment

Question 42

Edwards v. Sims is about

Answer 42

cave entrance vs. cave below

Question 43

Edwards holds under ad coleum a __

Answer 43

survey should be ordered and anything directly under Lee’s land belongs to Lee

Question 44

Edwards majority analogizes the cave to ___

Answer 44

mineral rights/mining

Question 45

Edwards dissent thinks that a ____ is silly

Answer 45

literal interpretation of ad coleum

Question 46

Edwards dissent reasoning

Answer 46

(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

Question 47

Rule of capture

Answer 47

for oil/gas first person to capture the resource owns it

Question 48

As long as the surface owners does not _____, the driller can extract as much oil and gas as it can

Answer 48

drill a well that enters the column of space below another surface owner

Question 49

Rule of capture is straightforward for ___ but harder for ___

Answer 49

solid minerals, fugacious ones

Question 50

Issue with rule of capture

Answer 50

tragedy of the commons (excessive production/waste)

Question 51

Current solution to tragedy of commons for oil/gas

Answer 51

regulatory schemes

Question 52

One possible solution to problems of rule of capture is the ___ BUT ___

Answer 52

unification of oil field, very difficult

Question 53

Briggs says that the rule of capture ___

Answer 53

applies in PA oil and gas including fracking

Question 54

Briggs says that ____ don’t necessarily constitute a trespass

Answer 54

pressure differentials in hydraulic fracturing

Question 55

Briggs rejects the _____ distinction

Answer 55

naturally vs. artificially induced flow

Question 56

Briggs does not address _____ issues

Answer 56

slickwater and crack issues

Question 57

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 ____

Answer 57

subsurface trespass substantially impairs another’s equal right to capture fugacious minerals or use/enjoyment of the surface

Question 58

Public rights are vital to any property system because some resources are ___

Answer 58

too public for private claiming and would make private property worthless (constant negotiation)

Question 59

Public rights can be for the Govt and not for the public like ___

Answer 59

military bases