Legally Noted

 

 

PROPERTY OUTLINE

 

 

1. General property Info

 

Property – a bundle of rights among a people that concerns things that the law is willing to enforce: a collection of legal rights over a thing backed up by a coercive authority for things both tangible and intangible: to have a legal right and control among people to external things in the world: legal right to control not merely the ability to: state must protect it for it to be property

-property rights are not discovered they are created

1) state protected/ endorsement

2) Manmade or created

-keep off unless you have my permission

-an abstraction not a single thing

 

-Possession: you must know you have what you have to possess it and intend to possess and control what you have

1) knowledge

2) intent

 

-First in time – first in right: depends on how you frame the issue: first always trumps second in right

-easiest to enforce is the first is right> class example the 1^st to sit or park in space

 

Policy drives the law: how we want people to act and behave: then we make are rules to motivate people to act in accordance with our policy> All Law is rule based and all law flow from policy

 

John Locke says that

Law of accession- when one person adds to the property of another by labor alone he there thereof lays a claim of ownership > improver who has mixed he labor owns the new value: I make timber out of your tree then I sell it pay you what the trees were worth and keep the rest (under Lockean theory )

 

1. Acquisition by capture

 

Rule of capture – in order to capture a Ferae Naturae one must 1^st actually kill or capture them

-Mortally wounding by one not abandoning his pursuit/. Continued pursuit after mortal wound

-deprive of it of its natural liberty> or desire/instinct to maintain natural freedom

To bring them into certain control

-Policy implications of that if I must grab or kill or wound a wild animal to get then I must become very good at those things

 

-Mere pursuit does not establish a property right if animals Ferae Naturae they must be killed caught, mortally wounded, or deprived of their natural liberty

 

-Hunters or sportsman regard hot pursuit as giving the 1^st property right> this is not a good standard to determine property standards Ferae Naturae: cannot define how hot or how close in pursuit must a person be: this is ambiguous

 

-what status should courts give to local customs??

The tug boat radio: no one had radio so they were being consistent with the tug boat custom: the court held that there are times when the custom falls so far beyond what is reasonable they are still liable because they have not done what is reasonable

 

Case EX: PIERSON v POST

-Post the hunter> he pursued the fox and got the right of pursuit so he has a better claim than to the fox than anyone to come before or after him >

-Court ruled that killing or mortally wounding the animal asserts you a claim to that animal (only if there is no rationale soli)

-hunters code= hot pursuit is enough> dissent wants to revert to custom but majority does not

-dissent says that is you do what majority wants to do it will have policy implications of discouraging hunters to hunt for fear of making their efforts useless> this empirical hunch (JUDICIAL empirical HUNCH > that it would discourage hunting/ no proof just a empirical hunch

-it was also proved that this would increase a technology to hunt more efficiently

) is wrong people just over hunt and get more equipment to hunt and often times hunt a species into extinction

 

ROL> Merely finding and chasing a Ferae Naturae> wild animal does not give a person possession. Even merely wounding the animal will not give right to possession. The animal must be captured or killed in order to constitute possession> you have to take away that animals natural liberty

 

Ghen v Rich has objective reasonableness: any person similarly situated would (presume not assume) know the custom: presumed that anyone living that area should know customs of that area = objective

-if the rule of capture applied in Pierson v post was applied the result would still be the same

-custom in this case was in accordance with rule in Pierson v post

 

-Held. Yes. The Plaintiff, by using an identifying bomb-lance, did everything practicable in order to secure the whale. Although local usage should not trump maritime law, a reasonable custom, if embraced by the entire industry for an extended period of time, can be enforced. Since this local custom allows the whaling business to remain viable it should be enforced.

 

Constructive knowledge – You are deemed to know whatever is on public record and whatever the public customs are in your area: it doesn’t matter whether you in fact know or not: doesn’t matter that you just moved there or did not know the public record

-legal standard is objective knowledge not subjective

-empirical hunch -If the person who found the dead whale was allowed to keep the fruits of the fisherman’s labor, then no one would be motivated to engage in the whale fishing trade.

 

Keeble v Hickeringill

-facts: plaintiff had a lawfully possessed decoy pond on his land which he was lawfully using. Plaintiff expended time and energy to lure wild fowl on his land. Then the defendant intentionally fired guns to scare away the wildfowl. The defendant engaged in lawful activity when he shot the gun on his own property (he was not trespassing).

-issue: Does neighbor have cause of a action against the neighbor for potentially scaring the animals away from their land by shooting gun form his own property (d did not trespass)

-Holding: yes a person does have a cause of action of a neighbor who engages in an equally socially ben. Activity of chasing away waterfowls

HOLDING- Held. Yes. The Plaintiff is entitled to damages because the Defendant intentionally frightened the ducks off of the Plaintiff's property. Even though the Plaintiff did not have title to the ducks, he was using his land in accordance with the law. Since the Defendant interfered with the Plaintiff's lawful use of his land the Plaintiff was entitled to damages.

-P has no possessory right under the rule of capture because in Pierson v post the land was un-owned but in this case the land is owned so he had possessory right to what is one his land

-using his pond is lawful and profitable for him: it is his right to use

-a man may not hinder the livelihood of another without being liable to him for hindering his trade

-Instrumental ends in this case are: encouraging other to provide food for other: the greater the social benefit the greater possibility if winning: school master example from book

 

1. Acquisition by creation

ACQUISITION BY CREATION

-any expenditure of mental effort, either tangible or intangible vest into person who brought it into being> propitiatory right to ownership and commercial exploitation

-Case EX:

- INS v AP

-you cannot own the info itself or the underlying facts but you can have property rights to the novel interpretation or presentation of those facts> example: copyright and plagiarism: you own individual form of new or packaging but not the news itself

-INS v AP: empirical hunch> people will no longer be motivated to conduct business in this industry if this activity was allowed: the initial news gathers would cease to engage in that form of business> they won’t gather the news if people could just take it> even though AP reworked the info INS was still competing unfairly and that would de motivate other to get in this industry and it would destroy small news companies

- RULE OF LAW: narrow rule is that news is quasi property and the 1^st publishers of the news has a quasi property right to reap that benefit of the news they gathered: empirical hunch

- There is a quasi property interest in news collected by an agency against other news collection agencies. It is unfair business competition for a news collection agency to distribute the news collected by another news collection agency

-under the holding weekly newspaper can do this because the quasi property right is temporary > weekly magazine not direct competitors

-but daily paper cannot because a daily paper is direct competitor to the other daily news paper

-where it does not threaten the other business the holding does not apply

Therefore a radio station probably can read paper over radio airwaves

Court characterizes INS’s behavior as misappropriation

 

Chaney bros V Doris Silk

-p claims that d undercut them and took their designs and undercut thereby selling their design for less

The plaintiff’s theory of the case

-they put money and effort into making design so they should anyone else should be legally be prohibited from copying their design > p claims they have created the designs so they now own a property right of the design by creation and therefore their property ownership through creation should not be infringed> they also believe they should be protected like as for as long as it takes to reap the benefits> this case the season

-the copy is cheaper and therefore of less quality> teacher says this but I do not agree> you would be willingly to pay more for quality and that’s why people would pay more for the original than the copy

-Courts said that forbidding others to copy the designs is not the law> at the absence of some common law precedent or statutory -“a man’s property is limited to the chattels which embody his invention. Others may imitate these at their pleasure.”

> Just the actual items themselves and to extend AP to this case would be going further than the court in AP desired> this is the job of congress

-ROL No. Because the Plaintiff could not secure a copyright or a patent on its patterns, the Plaintiff could not recover as a result of the Defendant's copying. Since no statutory authority promulgated pursuant to the patent or copyright law existed to protect the Plaintiff's pattern, the Plaintiff's property is limited to the tangible objects embodying his invention. Thus, although the Defendant copied the Plaintiff's patterns the imitation is not actionable.

-to prohibit copying and set up a monopoly is that design is too far > it gives a man power over his competitors is too much and only congress can give this power

-court says that there are larger issues: to allow this would hinder commerce and would not protect competition and that would damage the supply and demand theory > if prices are too high you must compete w/ competitors to become in accordance with supply and demand

-Competition depends on imitation but: everyone is better off with many choices by protecting a person from monopolies > who charge as much as they can get

-so this is a problem only the legislature can fix

 

Smith v Chanel

- the court ruled that a person can copy a un -patented scent and sell it as their own. The previous decision was affirmed.

-Chanel had no patent for the perfume, so smith was free to copy it at his pleasure

-“a large expenditure of money does not in itself create legally protectable rights “

 

fine balance by allowing people to compete and protect people’s property:

1) patents- so long as the products are novel useful and non obvious (not like the silk design here), and that patent lasts 20 years and is non renewable and goes into to public domain> the patents gives you a quasi property right to reap the benefit for a reasonable time,

2) Copyright-protect expression or independent and originally created ideas> does not last forever only 70 years after death of author> but even in time period it is subject to fair use> like parody> copyright can be assigned, sold or inherited

3) Trademark- cover words or symbols: images or words that identify a product or service> generally used to prevent infringing on a company’s good will> not just undercutting them or competing in same industry: people trust that mark as a sign of quality or its good will> when a Co is sold the goodwill can also be paid for because that’s where will allow the new owner to profit > goodwill often most valuable thing you buy> TM lasts as long as it is used in business or until it becomes generic because it fails to identify you

 

-NICHOLAS v Universal pics

-whether it is copyright infringement to make a movie with similar general themes to a copy written play.

-Holding: The court ruled in favor of the defendant and stated it was not copy right infringement to make a movie with similar general themes to a play.

--the defendant’s movie was too unlike the plaintiff’s play to be an infringement, not withstanding that in some details the defendant used the plaintiff’s work

-the plaintiff’s copyright did not cover everything that might be drawn from her play: its content was to some extent public domain.

 

 

1. Acquisition by Adverse possession

ELEMENTS OF ADVERSE POSSESSION (keep in order not the same in book)

1-Actual entry> I must have actual entry physical entry on land

2-Exclusivity or exclusive possession> must hold land exclusively > no title greater or equal to mine

3-Open and notorious or openness and notoriety > must be open and clearly obvious I am there

4-Adversity > adverse of hostile under a claim of right >most important and key to adverse possession

5-Continuity> continuous for the statutory period > they must all line up for statutory period for me to be a adverse possessor

Actual knowledge of owner is irrelevant : it is not whether they know but can they be charged by a reasonable person’s standard that they should know

1) Actual entry onto property -The entry must be physical so that the owner knows you are there

-Therefore constructive entry is not enough

2) Exclusive possession

-This refers to the title of the property

-the adverse possessor must have predominant title and not title that is shared with rival title

-exclusivity does not refer to the people on land> you can have multiple people on land and still have exclusive possession> as long as they are subordinate and therefore have a lower claim of title to you/ they are subordinate to you/you claim of title: they must have your permission > you must have best title and they must be subordinate

3. Open and notorious- you must be seen occupying the property like a true owner

-you cannot be hiding

-proof when people refer to this property as yours: ex “Joes place”

4. Adverse and hostile – must put Owner on notice (constructively) = not merely occupying the land but in fact taking title > most critical element and often litigated > you must put the owner on notice ypu are taking not using the land > act like ur the owner

-this claim of right must be established by ones state of mind

-objective based solely on one’s actions. This includes those who are mistaken and think the land is theirs.

-subjective- one must have a bonfire good faith that the title is yours

-aggressive trespasser- the desiser knows that the land is not theirs but they take it anyways

5. Continuous for the statutory period - must satisfy either common law or statutory statute of limitations

 

-The standard is not if you did know they were on your land but you should have known because a reasonable person would have known if they would have been a reasonable diligent owner = constructive notice

-Constructive knowledge is not that you did know but you can be charged because you should have known

 

 

 

- Adverse Possession- the use or enjoyment of real property w/ a claim of right that when use or enjoyment is continuous, exclusive, hostile, open, and notorious

-also known as title by theft, very controversial because it is a wrong that can mature to be right

-in direct opposition w/ legal theory> neither fraud nor might can make title their legal right

-use to be the standard was improvement but the new view improvement can be keeping it in its pristine state

-a higher and best use>

-adverse possession is really a statute of limitations> you must check you property to see if someone has appropriated it> if you don’t do that for long enough

-statute usually 10 years shorter time discourages adverse possession

-common law usually 21 years longer time is to encourage adverse possession

-Adverse possession is basically the idea of seisn – you go on land and have a physical ceremony> you go on land and hand dirt to the new owner and dirt is symbol of transfer of ownership

-desizer attempts to take the seisers land > once statute has matured the desieser not have appropriate title> it is a brand new perfect title, an off record title but often people get a declaratory judgment to pronounce their new perfect title > called a quiet title action

 

Policies behind adverse possession

-Statute of repose- quieting of titles and eliminating multiple claims to land

-To punish sleeping owners for lack of due diligence> this awards the diligent trespasser and earned the land by improving land or keeping it in pristine state

-to reward those who use the land who use the land most productively

-The presumption is always that mere possession is not presumed to be absolute > to be in possession is presumed to be subordinate to a higher title> so it is decumbent in desizer to prove they have done more than mere possession to establish key element adversity

Different presumption between real and personal property

 

CASES

Main purpose is to quiet disputes over title> policy control is related to what you are trying to accomplish

-short time period burdens owners while a long period would discourage desiesers because they would fear they would lose their purchases, so would 3 rd parties from buying and lenders

 

Van Valkenburgh v. Lutz

Issue > are the acts of clearing, cultivating, storing building as Lutz did sufficient to satisfy actual occupation under a claim of title or claim or right

--once title has been vested by virtue of adverse possession, it is elementary that it may not be divested, not by a oral disclaimer but only by a transfer complying with the formalities of law>

-you can only sell, give away land in estate, or have someone take it from you via adverse possession > only ways to lose title to land

-if a person admits the land was not theirs before the statute ran they would lose adversity because they would b admitting that the land was not their own> because you must be there w/ intent to take the land not just use the land and therefore you are claiming you have the most supreme title> if you acknowledge the owners title which is above you cannot be adverse because you then are subordinate to the owner and you would lose claim of right

Color of Title-the appearance of having title to personal or real property by some evidence, but in reality there is either no title or a vital defect in the title

-ex” person shows title of car but already sold car to someone else > document must be valid on its face but there is a apparent defect > original policy was to help settle land claim in old west

 

-color of title and claim of title/claim of right are 2 different things

 

 

MANILLIO V GORSKI

-mostly about hostility requirement> the mistake of whether or not you are claiming land as your own that you erroneously believe is your own

-ct favored an active standard of encroachment> the mistake is irrelevant

-ct gets to notoriety requirements and does something strange and made this a problematic case that is highly criticized > ct says that p133> “No presumption of knowledge arises from a minor encroachment along a common boundary. In such a case, only where the true owner has actual knowledge thereof may it be said that the possession is open and notorious.”> The owner of the land must have actual knowledge in order for the adverse claimant to satisfy notoriety requirement “

balance burden on both parties> if it is reel easy for me to let it be and reel hard for you to move it: then it probably will stay

ROL - there is no requirement that the entry and continued possession must be accompanied by a knowing intentional hostility and hold that any entry and possession for the required time which is exclusive, continuous, uninterrupted, visible and notorious, even though under mistaken claim of title is, sufficient to support a claim of adverse possession.

-the D’s acts must still be open and notorious possession

 

 

HOWARD v KUNTO

Whether a possessor of land by deed, may obtain a claim of adverse possession, where the deed erroneously describes a different parcel, where the owner has only had possession for one year where the previous owner had it for the statutory period and only used it for a summer home

--May a person who receives record title to tract A under the mistaken belief that he has title to tract B(adjacent to A) , for the purpose of establishing title to tract B by adverse possession , use the periods of possession of tract B by his immediate predecessors who also had record to tract A.

-the 1^st survey was wrong

-the doctrine of impermissibly strategic behavior> due to unethical behavior the ct. tends to find a way for you to lose because you have harmed a innocent person

-footnote 20> a finding of fact that Mr. Kunto testified that he no possession of holding anything other than had the deed stated

-the WA court passes over what Lutz ct said about disclaiming that you own the land> because they treat it as a irrelevancy because it was irrelevant to the ct because the ct did not look at subjective intent because they were looking at objective intent so they want to look at what they did> they acted like the owned it the improved it they built the dock > THIS WAS A OBJECTIVE STANRARD

- Tacking –to add one’s own period of land possession to a prior possessor’s period, to establish continuous adverse possession for the statutory period

-Requires Privity- contact, connection or mutualality of interest between parties> must be mutual, voluntary and successive> the policy issue is to distinguish between mere squatters and good faith purchasers

 

HOLDING > summer occupancy only of a summer beach house does not destroy the continuity of possession required by adverse possession. The occupancy of tract B during the summer months for more than the 10-year period by the Appellant and his predecessors, together with the continued 23 Howard v. Kunto existence of the improvements on the land and beach area, constituted uninterrupted possession. •, successive purchasers who receive record title to tract A under the mistaken belief that they were acquiring tract B, immediately contiguous thereto, and where possession of tract B is transferred and occupied in a continuous manner for more than 10 years by successive occupants, have established sufficient privity of estate to permit taking and thus establish adverse possession.

 

DISABILITIES AND ADVERSE POSSESSION

Disability > every state ahs one and most extend the statue of limitations for adverse possession

-considers in the age of minority status, unsound mind, imprisonment, then after the expiration of the statutory period (21 yrs common law 10 years statute) from when the cause of action accrues, you can bring a action 10 years after the disability has been removed > the cause of action accrues and the qualifying disability is in place you have 10 years after the statute has run to bring claim

- being a disability is not enough it must be a qualifying disability> it must be in place at the time when the cause of action accrues

 

THE GOVERNMENT AND ADVERSE POSSESSION

Adverse possessors against the government

• No time runs against the crown

-adverse possession does not run against the gov.

-Public trust doctrine> the public owns gov property not just one person > if gov could lose property the public would suffer due to the negligence of few employees

-also the state owns too much land to monitor> not reel driving policy issue and in general a poor argument because a person or CO. could also own a vast amount of property and still be subject to adverse possession

- Some states allow these claims against the gov but only after long (longer that statutory period) period of acquiescence

 

What do you tell client to do if the state has done nothing to oust them after a long time> build something and rely to their detriment because it would then be inequitable to oust them after

 

 

 

 

 

1. The 3 types of Possessory Estates

 

ALWAYS 1) IDENTIFY WHO HOLDS THE POSSESORY ESTATE(look at words of a purchase) 2) IDENTIFY WHICH POSSESORY ESTATE THE PARTY HOLDS (look at words of limitation)

 

1) Fee Simple Absolute> this lasts forever, has no future interests, no conditions or restrictions> this is freely transferable, defisiable, and inheritable > “To A and his heirs” = FSA> common law approach is very strict…must say to a and his heir< the modern trend is that all estates are FSA’s unless explicitly stated otherwise= focuses on intent

 

2) Fee Simple Defeasible - this may last forever, but does not have too ……this right of possession is defisiable or can be taken away form the grantee > “to a and his heirs, but is A uses land to sell guns, O can reclaim land”> uses a condition subsequent, a condition which affects a grantees right to retain possession of the property after the grantee’s has taken possession

 

3 types of Fee Simple Defisable

A) Fee Simple Determinable –Future interest is O’s and it is a possibility of reverter> these terminate automatically the moment when the express condition occurs….” To A and her heirs as long as she uses land to grow flowers”

-tell words> as long as, so long as, until, during, while,

-under common law this is transferable, defisable, and inheritable but the future (possibility of reverter, right of entry or power of termination )interest can only belong to O and were only inheritable

- Modern law says they are fully defisiable, transferable and inheritable

 

 

B) Fee Simple Subject to a Condition Subsequent- the possesory interest may end when the express qualifying condition occurs, but it is the grantor’s decision> This future interest is O’s right of entry or power to terminate ….”To A and her heirs, but if A sells guns, then O has the right to reclaim land”

-tell words > but if, provided that, however if

- under common law this is transferable, defisable, and inheritable but the future (possibility of reverter, right of entry or power of termination )interest can only belong to O and were only inheritable

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