Midterm Outline

Thursday, March 03, 2011

11:36 AM

Right to Exclude

• State v. Shack - While property owners typically have a right to exclude, there is a right to
reasonable access for medical necessity and other human rights interests.
• Desnick v. American Broadcasting Companies, Inc. - If a property is open to the public, you are
not trespassing if you lie about why you've come (journalists, food critics, pretending to be
wealthy, etc)
• Uston v. Resorts International Hotel, Inc. - Most businesses can deny service to anyone for any
reason not discriminatory; Innkeepers and common carriers, however, most have good cause to
eject a patron (one rule is that it must be disruptive). (Note--Uston actually expanded this rule
to all businesses in NJ, but ordinarily it only applies to hotels and transportation.)

Trespass Remedies

• Glavin v. Eckman - Three remedies for trespassory cutting down of trees: 1) Value of the trees
as lumber; 2) Decrease in property value; 3) Costs to restore the property to how it was (if this
is reasonable). In this case, the third option was best applied because literal value of the trees
did not adequately represent the loss to the landowners.
• Jacque v. Steenberg Homes, Inc. - When deciding whether punitive damages for a trespass were
excessively high, the court considers three factors: 1) the degree of reprehensibility, 2) the
disparity between harm by plaintiff and award, and 3) the difference between this remedy and
basic civil penalties. If these three factors don't make the award unreasonable and there's a
compelling reason to award a high penalty to dissuade future trespasses, the court will uphold
it (in this case, $100,000 for crossing a strip of property with a mobile home delivery).

Property Relations in Democracy

• De Peyster v. Michael - Feudalism, or policies resembling it that deny "ultimate ownership" of

property, are not allowable in America. This includes quasi-sales of land in which the property
"escheats" (or reverts) to the original owner's ownership if conditions aren't met, and restricts
the lessor's right to sell the land. Renting is fine, but sale conditions reflective of fealty
antiquities are "repugnant" to modern ideas of sovereignty.
○ Company Towns have been largely abolished/restricted for similar reasons.
• Oyama v. California - "Alien Land Laws" prohibiting sales of land to immigrants are also illegal.
• Commonwealth v. Fremont Investment & Loan - Property sellers and loan officers can't engage
in shady tactics. You can't do anything sketchy when you sell a house or enable someone to buy
a house.

Native Americans

• Johnson v. M'Intosh - The doctrine of discovery gives European settlers (like white Americans)
superior ownership over any original occupancy claimed by Native Americans. Tribes have
rightful occupancy of the land, but cannot sell or transfer the land, and the United States (who
have true ownership) can extinguish that occupancy at will.

Property Page 1
 have true ownership) can extinguish that occupancy at will.
• Tee-Hit-Ton Indians v. United States - Barring an act of Congress formally giving land to a tribe,
the Government can repossess land that tribes hold rightful occupancy over without having to
provide just compensation as outlined under the 5th amendment.
• United States v. Sioux Nation of Indians - If a tribe has been formally given land by an Act of
Congress, the Government can't mess with the land or title at all without compensating them.
• County of Oneida v. Oneida Indian Nation - Any other doctrine trumps rightful occupancy titles.
• Navajo Nation v. United States - When it comes to compensating a tribe for taking land or
resources that they were given title to, Congress need only act in "good faith"; there doesn't
have to be a specific "fair market value" sum awarded (as typical under the 5th amendment).

Labor & Investment

• International News Service v. Associated Press - Established news stories as "quasi-property";

the news is not intellectual property that can be fully protected (as it is not a creative product),
but there are some protections for when competitors employ unfair business practices to
obtain and publish the information you researched.

Parents & Children

• Bayliss v. Bayliss - Courts can more or less award whatever form of child support they want,
even if it breaks the general rule for when the child is no longer a minor; The court here ruled
that postminority child support for higher education is orderable as long as the child shows an
interest and aptitude for it.

Gifts & Inheritance

• "The law of gifts requires (1) intent to transfer title, (2) delivery of the property, and (3)
acceptance by the donee." -- "Delivery" can just be a conveyed statement expressing the
transfer of interest.
• "Delivery of a gift with intent to transfer title would be held to be irrevocable" traditionally--
however, many modern courts consider that when the gifts are given in anticipation of
something that does not happen (most obviously, re: a marriage engagement), many judges will
order the gifts returned.

Wild Animals & Baseballs

• Pierson v. Post - Pursuit is not enough to establish ownership of something like a fox you're
hunting; there must be "corporal possession." There may be some middle ground here for
when you've "mortally wounded" the animal but are not yet in full physical possession.
• Popov v. Hayashi - If an actor is "actively and ably engaged in efforts to establish complete
control" over something they've begun to possess, they have interest in that object; however, if
in good faith another completes corporal possession before complete control was completed,
he too has interest in the object.

Oil & Gas

• Absolute Ownership (Texas)

○ Ellif v. Texon Drilling Co.
The Law of Capture says that you are entitled to any oil/minerals you can obtain from

Property Page 2
 ○ The Law of Capture says that you are entitled to any oil/minerals you can obtain from
drilling on your property, even if they are taken from a pool shared with other property
owners.
○ However, this does not apply if you are being negligent or wasteful in your harvesting of
the resources.
○ Your absolute right to the common pool is only in relativity to your property, not who gets
there first--neighbors deserve a "reasonable opportunity" to "produce his own share."

• Qualified Ownership (Louisiana)

○ Technically also follows the Law of Capture.
○ As opposed to Texas, the rule here is that you are entitled to absolutely anything you can
get from your land from a common pool, regardless of whether you are wasting it. You
just need to have gotten there first.
○ Only really horribly negligent waste (e.g. the oil well exploding and you just letting the
whole thing burn) is prohibited.

Water

• Ground Water
○ Free Use/Absolute Ownership - You can take as much as you want from a shared pool, as
long as it isn't disgustingly wasteful. This is largely Qualified Ownership from oil rules.
○ American Reasonable Use - You can withdraw water as reasonably needed and in a way
that doesn't cause unreasonable harm to other surface owners. This is largely Absolute
Ownership from oil rules.
○ Correlative Rights - You are entitled to however much water there is in the pool in
proportion to how much of your land is over it.
○ Prior Appropriation - Rights are allocated based on who began to draw the water first (no
sucking all the water away from an ancient mill).

• Surface Water
○ Riparian Doctrine - Used by states East of the Mississippi; rights are given based on how
much of the water source borders your land, combined with a reasonable use rule.
○ Prior Application Doctrine - Used by states West of the Mississippi; rights are given based
on temporal priority of use, and you may use it to the degree to which you can put it to
beneficial use.

Finders

• Willcox v. Stroup - If you find something, it's yours unless someone else can prove either that
it's someone else's legal property or it was obtained illegally. Burden of proof is on them.
• Charrier v. Bell - Normally if property is deemed to be "abandoned," you can obtain it via
occupancy. This doesn't apply, however, to burial artifacts.

Relativity of Title

• If A is the rightful owner, and B takes possession somehow (illegally or supposedly temporarily),
then B sells to C, the court usually goes one of two routes: it either seeks to revert ownership
back to A (the true owner) or it allows it to continue belonging to the owner who bought it
innocently, if illegitimately (the bona fide purchaser)
In general, even if you're not the most superior titleholder, you can still have greater

Property Page 3
 ○ In general, even if you're not the most superior titleholder, you can still have greater
possessory interest over someone with an even weaker title. There's just a hierarchy
based on temporal priority and whether the assumption of ownership was legitimate,
bona fide, or illegal.
• The U.C.C. has an exception, in which you can't pass title for something you don't possess;
therefore, a thief cannot transfer title and give anyone legitimate ownership--even bona fide
purchasers.

Adverse Possession

• Remember, this awards possession, not title; title is legal ownership of a piece of property,
whereas possession consists of de facto property rights achieved statutorily by virtue of
occupancy, at which point ejectment for trespass is no longer allowable.
• Elements for Adverse Possession:
○ Actual
○ Hostile
○ Notorious & Open
○ Exclusive
○ Continuous
○ Statutorily Defined Length of Time

Or, "AN ECHO" -- Actual, Notorious, Exclusive, Continuous, Hostile, & Open
• A Happy Nemotoad Eats Candy for a Statutorily Defined Length of Time
○ Some jurisdictions require that the adverse possession be under claim of title or color of
title (or in other words, in good faith); some merely reduce the statutorily defined length
of time in recognition of this.
○ California adds the rule that you must have paid taxes on the property.
○ The majority requires that the defendants provide "clear and convincing evidence" that
they meet the reqs for AP (though the minority view requires a "preponderance.")

• Brown v. Gobble - The statutory length of time for AP can be fulfilled via tacking if multiple
titleholders maintained the other elements throughout transfers.
• Romero v. Garcia - Color of Title is met when "an indefinite and uncertain description [is]
clarified by subsequent acts of the parties" -- in this case, a title was vague about whether
defendant owned a part of land, but that defendant had build and paid taxes on it under the
assumption the title said it was hers.
• Nome 2000 v. Fagerstrom - If a property is best used seasonally, "continuous" is satisfied if it is
thus used seasonally; however, even if all of AN ECHO is met, you don't get an entire piece of
property if you weren't actually adverse possessing the entire domain of it. If the borders of the
area are unclear, you can only hold title to land as a squatter where the boundaries of your
possession are open and notorious.
• Notes on Adverse Possession
○ The non-owner must "actually possess" the land, physically occupying it in some manner.
• This applies only to making use of the land as its character makes beneficial
(seasonal occupation, farming on it, leasing it out).
○ If there isn't a fence on that land (as above), there must be substantial building or actions
to show possession openly and notoriously on that specific part of land (no just putting
down small stakes in 4 corners).

"Open and notorious" means use of the land by a non-owner must be obvious to the
owner.
The actual owner must not have given the defendants permission to use the land.

Property Page 4
 ○ The actual owner must not have given the defendants permission to use the land.

Additionally, some courts require that the defendant had intended to dispossess the
actual owners, instead of merely there being a mistaken title.

Some states are the opposite, requiring that your occupation must have been in
good faith and not malicious (color of title).
• The majority, though, is you need merely use the land as though it were yours.
○ Each state has their own statutory legnth of time possession must exist for.
○ Courts generally don't let you win adverse possession cases against government property.
• Prescriptive Easements through Adverse Possession
○ Community Feed Store, Inc. v. Northeastern Culvert Corp. - Adverse Possession will get
you a prescriptive easement if you meet the AN ECHO requirements through continuous
use of something like a gravel road.
• Unjust Enrichment for Trespassory Improvements on Land
○ If a trespasser builds a structure that is partially on someone else's land, the true
landowner can seek an order that the structure be removed; however, there is a "relative
hardship" test.

Under this, if the trouble of removing the structure far outweighs its negative impact
in having been built, it may be allowed to remain; this even moreso if the structure
is in fact considered an improvement to the land.
○ Somerville v. Jacobs - "To prevent unjust enrichment of the defendants … this Court holds
that an improver of land owned by another who through a reasonable mistake of fact and
good faith erects a building entirely upon the land of the owner … is entitled to recover
the value of the improvements."

Boundary Settlement

○ Oral Agreement

Oral agreements between neighbors that set property boundaries are upholdable if
both were uncertain about where the true boundary was and each party was
proveably in agreement on where the boundary should be.
○ Acquiescence

Absent a literal oral agreement, both sides acting in acquiescence of a common
boundary is also enough.
○ Estoppel

If a true owner deliberately leads the other to believe they're not encroaching on
the owner's land through lack of mentioning it, action may be estopped.

Adverse Possession of Personal Property

○ The rules of adverse possession do apply to property that isn't land.

○ This largely applies to situation of discovery in which a buyer of someone else's goods,
sold by a thief, reasonably had no knowledge of the theft.

Property Page 5