Property Outline
Principles & Definitions
Cases
Capture & Trespass of Property
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Ghen did all he could do, unlike Pierson, because he killed. Idea is that
you chase/pursue/hunt to the fullest extent possible.
o Ghen presents a more complicated narrative because in Pierson
he who kills & captures is the only true owner, but here though
Ghen has acted to the full possible extent to capture/occupy by
killing and marking the whale, still Ellis has an interest in the
whale as the finder.
 Ellis technically did have something to sell to Rich - the rights
of the salvor/salvor's fee, but not the title to the blubber. As
finder Ellis had the right to sell his salvage fee.
Disgorgement - Injunction forcing a party to turn over all the profit
they accrued from conversion/trespassory use of another's property
(which can also be information).
Trespass - Interference with a possessory right.
 Example - Intrusion on land or stealing someone's car.
 Ghen & Pierson are cases involving trespass of property.
 Ordinary remedy - Get the thing back or receive its monetary value,
or punitive damages.
 What the hunter knows at the time, actually or constructively, is
important. If the farmer hadn't marked the deer, & the hunter
assumed they were wild deer on government land, he's not liable
under the law of capture. But if the hunter had notice the deer were
domesticated, then the hunter owes the farmer acknowledgement of
the law of capture.
 Customs arise to maximize the well-being of the group by ensuring
that individuals don't take benefits for themselves that impose net
losses on the group as a whole.
 General public policy considerations of property law:
i. Reward productivity & foster efficiency,
ii. Create simple, easily enforceable rules,
iii. Create property rules that are consistent with societal habits
& customs,
iv. Produce fairness in terms of prevailing cultural expectations.
Ratione Soli - Refers to the conventional view that an owner of land
has constructive possession of wild animals on his land.
Pierson v. Post
Facts: Post was hunting on uninhabited land, pursuing a fox, when Pierson
killed the fox, knowing Post was pursuing, to prevent him from capturing.
Lower ct. ruled for Post because of his intent & the pursuit's proximity to
success.
Issue: Does Post’s pursuit create a right to, or property in, the fox, that can be
recovered from Pierson?
Reasoning: Property over wild animals is acquired by occupancy only.
Mortal wounding, capture by net/trap that removes the animal's liberty, by the
hunter creates title. But mere pursuit alone doesn't create title.
Class Notes:
 Claims at issue arise from a question of relative, not absolute, title. "My
claim to X is better than yours, because ….."
 Court objectives are to create rules that are certain, fair, effective, and will
promote peaceful resolution of conflict.
 Capture creates ownership over previously un-owned resources.
 Being first matters - the prior claim most often takes precedence.
Ghen v. Rich
Facts: P Ghen killed a whale that washed up on a beach days later. The finder,
instead of reporting the find according to over a decade of established custom so
it could be recovered by the true owner, instead advertised the whale at an
auction. D Rich bought said whale & extracted the oil, which P had a right to
according to custom, & appeared to claim once he heard of the auction. Though
neither D nor the finder knew P killed the whale they could have through
reasonable discovery.
Issue: Can P claim title under common usage/custom?
Reasoning: The original whaler must first take possession of the whale through
actual possession & appropriation to create title.
 Swift v. Gifford validated that local custom created legally valid terms of
usage; at instance "first iron," or who first held the whale. Ct. agrees that the
local customs create legally valid terms of usage.
 In whaling, the rule of the first taker must be maintained because otherwise
the risks/costs inherent to the industry outweigh the benefits because the
arbitrary chance of the finder supersedes the efforts of the whaler, would
undermine the industry.
Holding: P Ghen successful, will be reimbursed the cost of the whale oil plus
interest minus the cost of the processing/"trying."
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Abuse of Right Doctrine - An owner abuses their property rights when
exercising them with the subjective intent to harm someone.
 We allow interference to the extent that it generates a social
good that outweighs the cost. Better teacher can advertise his
superior credentials, if true, because it benefits the students and
ensures a greater degree of education, but not to scare them
away from another school, because that minimizes how many
students are educated.
 Creates a limit on the right to capture; cannot maliciously
interfere with Ps lawful exercise of his trade.
Oil & Gas Problem
 Law of capture is difficult to apply because the resources span multiple
properties where each landowner has the chance to be the 1st to drill.
 Pierson was applied to natural resources because it's fugitive in
character, like a wild animal in the sense that it migrates from property
to property.
 If A & B share an oil reserve under their land, and A drills for oil in at
an angle onto Bs property, A is responsible to B for whatever property
damage he causes, the trespass, and the profit of the oil he removed
from Bs land.
 Boundaries separating property are understood to extend to the center
of the earth, so drilling underneath someone's property still qualifies as
a trespass.
 What does A owe B in regard to a natural resource they have mutual
claim to? A owes B the duty to exercise ordinary reasonable care in
pursuit of the resources they mutually shared/had a claim to. If
negligent, A is owes B not only the surface damage to Bs land, but the
value of Bs proportionate share in the resource.
Externality – Consequence of As actions, imposed on B, but not reflected
in the cost of the act for A. The main allocative function of property rights
is the internalization of beneficial and harmful effect.
 Private land ownership forces the owner to act as a broker that, to
maximize the value of his property, must consider the effects of his
activities on his neighbors and future generations.
 Communal ownership tends to increase externalities, and a system of
private ownership reduces them.
 Property is a means of distributing society's wealth.
 Fugitive resources tend to be over-consumed.
Keeble v. Hickeringill
Facts: P set up a decoy pond to capture ducks, which D ruined by (i) firing six
shotguns so the noise and smell of gunpowder drove the animals away, and (ii)
shot at the ducks.
Reasoning: Affirmed because the decoy pond was Ps trade, which D disturbed
through malicious action. Would not have been a recoverable disturbance if D
instead lured away the ducks through his own decoy pond through fair
competition.
Class Notes: Problem with Ds behavior is there's no social good to be had from
merely scaring the ducks away, D wasn't luring the ducks away through fair
competition, D was interfering with Ps interest in his property for no justifiable
reasons. Ds right to capture is limited to acting within bounds of fair
competition & social policy; cannot act with malice.
Trespass of Land & Adverse Possession
Property - A relationship among people that entitles owners to
include/permit or exclude/deny use or possession of their property by other
people. The free transferability of property rights in important. The right to
include & exclude are the necessary & sufficient conditions of
transferability.
 Trespass protects the right to exclude.
 Exceptions to the right to exclude: civil rights legislation, laws
granting public access, limits on a landlord's right to evict tenants.
Singer's Reliance Interest in Property:
1. When owners grant access to others they're not unconditionally free
to revoke the access. Non-owners who relied on their relationship
with the owner who granted access in the past may be granted partial
or total immunity from having access revoked if necessary for justice.
2. When parties are in a relationship of mutual dependence involving
joint efforts, and the relationship ends, property rights (access/control
of valued resources) must be redistributed among the parties to
protect the interests of vulnerable persons.
 Singer's concept of reliance applies in State v. Shack because the
government workers had immunity from trespassing to aid farm
workers they previously served, as required by justice to ensure the
migrant workers (the vulnerable party) had their essential needs met.
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The purpose of adverse possession is to automatically quiet all titles
which are openly & consistently asserted, to provide proof of
meritorious titles, and correct errors in conveyancing.
Adverse Possession requires: (1) an entry that is (2) open &
notorious, (3) exclusive, (4) continues throughout the statutory
period, and (5) is adverse & under a claim of right.
o Entry - Triggers the statute by marking the time of
entry/trespass for the statute of limitations.
o Open & Notorious - Puts reasonable property owners on notice
that someone is on their property. Test is objective to establish
constructive, not actual, knowledge.
o Punishes negligent owners for "sleeping on their rights."
o If the AP is underground then it's necessary to prove the
owner knew of the occupation, or knew of the
underground space & that it was easily accessible by
outsiders.
Jacque v. Steerberg
Facts: D was delivering a mobile home, & the easiest route of delivery was
across Ps land, which D utilized despite Ps protests. P successfully sued D for
intentional trespass. Higher ct. allowed punitive damages of $100k in addition to
$1 nominal damages because of public policy relating to intentional trespass.
Reasoning: Ct. recognizes every person's right to exclusive enjoyment of their
property for any purpose that doesn't invade the rights of another. Jacque did not
want another to trespass on his land despite being offered money, and there was
another road, though more dangerous, available for D to use. (a) It's the legal
system's responsibility to protect that property right and nominal damages are
insufficient to act as protection because (b) a series of intentional trespasses can
threaten an individual's very ownership of land, (c) which society has a strong
interest in deterring. (d) When landowners trust the legal system to punish
intentional trespassers they're less likely to resort to self help remedies.
Class Notes: What's being taken away is Ps right to say No, which is being
cheapened/reduced in authority if D isn't assigned punitive damages, or owes P
only nominal damages.
 Intentional violation of another's right affords you an unjust enrichment at
the victim's expense, which can be remedied not only by extracting the
benefit, but given the social importance of the right to say no, also requires
punishment.
State v. Shack
Facts: Ds entered private property to help to aid migrant farmworkers employed
& housed there, then were convicted of trespassing after refusing to leave at the
landowner’ request. Ds appeal challenges the const. of the trespass statute
because landownership shouldn't include the right to bar access to governmental
services for migrant workers, meaning there couldn't have been a trespass.
Reasoning: Ct. reasons that property rights serve human values. Title to land
doesn't include power to decide the lives of persons the owner allows to enter
his land, the legal system does not permit people to contract away what is
necessary for their health, welfare, or dignity.
 Focus on the weaker status of the migrant workers, who are socially
disadvantaged and isolated.
 Migrant workers have a right to receive visitors at their discretion so long as
it doesn't harm others.
Class Notes: Because the farmer invited the migrant workers onto his property
they have rights on his property now.
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Exclusive - The sort of entry & possession that ripens into title
by adverse possession is the use the property in the manner that
an average true owner would use it under the circumstances,
such that neighbors & other observers would regard the
occupant as a person exercising exclusive dominion.
 Exmpl: Claimant to unimproved lot paid taxes on it,
dug gravel from it, and brought trespass action
against those who used it without his permission.
 Court asks, "Do the occupier's acts & statements
objectively appear to be claims of ownership?"
Continuous means throughout the statutory period but not
necessarily constant.
Adverse - Requires party to assert a claim of right/hostile
acquisition to property that isn't theirs, but they’ve made theirs.
o Hostile - Occupying the land without the consent of the
owner & with intention to remain.
Van Valkenburgh v. Lutz
Facts: D bought two lots of land that were difficult to reach, and cleared a path
through a tract of land adjacent to theirs, but which they didn't own. They also:
(i) built a shack for a relative, (ii) partially cleared the tract, (iii) sold vegetables
there. A year later their feuding neighbors bought the tract & sent D an eviction
letter through their lawyer, demanding he remove all his buildings from the
tract. Lutz agreed to remove all his sheds & junk but claimed a "prescriptive
right" to use the path to reach his house but Ps ultimately successfully sued to
remove Lutz entirely.
Reasoning: Title to real property by adverse possession requires clear &
convincing proof that throughout the SoL there was an actual occupation under
a claim of title. Elements of proof: (i) the premises is protected by a substantial
closure, or (ii) has been usually cultivated/improved.
 The land wasn't improved under a claim of title because (a) when Lutz built
the shack there he knew it wasn't his (so it wasn't a hostile claim), (b) he
thought the garage encroachment was solely on his land (not hostile), &
(c) junk laid throughout the property cannot qualify as improvement. At
 Claim of Title - Requirement of hostility/claim of right on the
previous trials D conceded the tract belonged to P, forfeiting his right to
assert a hostile claim.
part of an adverse possessor.
 Color of Title - A claim founded on a written instrument such as
Fuld Dissent: Believes D occupied the land under a claim of title prior to its
purchase by P because he cleared the tract, developed a farm & built a dwelling.
a deed or will, or founded on a judgment or decree, that is
The farm extended from one side of the tract to the other as a boundary marking,
defective/invalid.
 Example: Will from a grantor who doesn't actually own the land. Or therefore it occupied nearly all of the tract.
the deed is improperly executed.
 Though Ds knew the property wasn't theirs they still intended to assert title
 Actual possession even of only part of the land in the defective
to it/acquire & use it as his own. This should satisfy the hostile claim
writing creates constructive possession of all of the land. But you
requirement.
have to be on enough of it to give them proper notice.
 "Cultivated & improved" shouldn't be construed narrowly, but in reference
 Person who occupies land through AP without color of title
to the nature, character, condition & location of the property. The statute
acquires title only to the land they've actually physically possessed
doesn't require the whole plot has been cultivated, just that the act of
during the statute of limitations, vs. an AP who occupies under
improvement is usual under ordinary cultivation/improvement standards
color of title, who acquires title to all the land described in the
for thrifty owners of similar land.
o Nature & character of Ds improvements gave all his neighbors notice
defective deed even if they've only occupied a portion of it.
of his adversarial claim to the land.
 Ease of identifying the original owner/title-holder is important in
Class Notes:
determining who the true owner is, regardless of who happened to
 State of mind approaches to asserting hostile title:
steal the property later. (Fairness & good public policy.)
1. State of mind is irrelevant.
 Even though the first theft was wrong/unlawful, it doesn't give the
2. Required state is "I thought I owned it." Must be a good faith claim.
second thief the right to steal from him. The person who has quiet
3. Required state is "I thought I didn't own it, but I intended to make it
possession has greater legal significance/superior possessory interest
mine."
o Under "bad faith" occupancy many courts will only award title
than all others except the person who had original possession. Peace
is best served when people aren't given incentives to take property
if the adverse possessor agrees to pay fair market value to the
from others.
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Some states authorize limited authority to retrieve chattels
from property the original owner left on the land, but never
when there's not a pre-existing relationship with the current
land owner; prevents adoption of self-help tactics.
Exceptions to trespass: (i) emergency services/public services,
(ii) private necessity.
As your property moves into the public domain you right to say no
declines significantly & is going to be replaced with a presumptive
yes or conditional no.
Claim of Right - Conduct implying the person exercising a claim to
property has rightful possession of that property.
 Good Faith/Georgia Rule - Can only claim title if you enter under a
good faith claim that the property is yours.
 Bad Faith/Maine Rule - Can only claim title if you specifically
intended to take property they knew wasn’t their own. Abandoned by
most jurisdictions.
 Objective/Majority Rule – Can claim title if the AP acted without the
owner’s permission & the APs actions are objective assertions of
ownership. Ct. is merely deciding whether the AP acted like a true
owner, ignoring any subjective intent/knowledge.
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dispossessed owner to punish & deter intentional illegal
acquisitions of property.
Adverse possession is a common law doctrine justified by (i) punishing the
negligent title holder, (ii) rewarding the industrious adverse possessor, (iii)
clarify title.
Most courts understand improvement merely to mean using the land as an
average homeowner.
Mannillo v. Gorski
Facts: Ps own the lot adjacent to Ds. Ds son made additions to the house that
raised its height & required her to build extra steps on the front & rear of the
property that encroached 15 inches into Ps land. D claims she has title to that 15
inches by AP. Ps argue she doesn't because her possession wasn't adverse.
Issue - Does entry & continuing possession based on a mistaken belief that D
actually owned the land prevent finding hostile possession necessary for title?
 That title by adverse possession cannot be founded on mistake is
principle derived from Preble v. Maine.
o Maine Doctrine - Hostility must be based on an intent to
possess the land regardless of whether or not you actually own
it, therefore a mistake in believing you own the land renders
your intent to possess non-hostile. Ignorance of the boundaries
can ripen into title if it retains the intent to possess even if an
adversary later clarifies the boundary, but if the ignorance is
without the intent to possess once the boundary is established
then the possession isn't adverse.
 Has been sharply criticized & ruled historically unsound.
 The competing Connecticut Doctrine - Mistake is irrelevant and
only serves to reward wrongdoing at the expense of an honest
homeowner, therefore it's irrelevant in the adverse possession
calculus so long as X intended to possess the land/acted on a
claim of right.
o Court adopts this reasoning and overturns the policy of
deciding based on the Maine doctrine.
 Issue - Was Ds conduct open & notorious possession?
 Presuming notice in the instance of 15 inches, where encroachment
isn't obvious upon visual survey, is unrealistic. Would place an
undue burden on the true owner to constantly police their neighbors
for small encroachments. Without notice there cannot be possession
unless evidence establishes the true owner had actual knowledge.
o In these instances, to avoid an unfair burden on the adverse
possessor who cannot remove the encroachment without
great hardship, the court can force the true owner to forfeit
to transfer the disputed land on fair value payment so long
as no damage would occur to the true owner's remaining
land.
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Notes:
Doctrine of Agreed Boundaries - If there's uncertainty between neighbors
as to the true boundary line an oral agreement to settle the matter is
enforceable if the neighbors then accept the settled line for a long period of
time.
Doctrine of Acquiescence - Long acquiescence, even for a period shorter
than the statute of limitations, is evidence of an agreement between the
parties fixing the boundary line.
Relative Hardship Test - Balancing approach where court considers
the harm of encroachment on the true owner against the hardship of
the encroacher's removal. If decided for the encroacher they acquire
title or easement & are forced to pay damages to the true owner.
Class Notes:
Pg. 140, Q3 : Is withdrawing back to the original property back a break in
the continuity of their claim of right through adverse possession?
o Statute of Frauds controls transfers of interest in real property.
o Even if she voluntarily steps back to the original line it
doesn't satisfy the SoF; B has to spend the next 9 some
years re-claiming the property through adverse possession.
 The burden of proof is on the adverse possessor to
establish the facts by clear & convincing evidence.
 She can still change her mind up to the 10 year limit to
litigate who the property actually belongs to, which is still
her, based on adverse possession.
o Even a gift of property has to be evidenced in writing. Adverse
possession is an exception to the SoF requirement, but the
requirement still governs normal transactions.
Reasonable vagueness about the actuality of the property line ≠ reasonable
notice for AP. But if they take enough of a chunk of your property, you’re
on reasonable notice and the clock starts to run.
--The boundary intrusion has to be significant enough that somebody
would say that it doesn’t look like it’s consistent with the boundary lines
they would imagine.
--Actual notice has to be “put in your face.”
--Encroachment Structures Doctrine, which is an example of The Rule
of Relative Hardship, which is a rule about remedies.
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If ∆ intrude onto π’s property, and removal would cost them a lot,
then they may not be forced to tear it down
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· Injunctive Relief - There’s a trespass, and the default remedy for
a trespass is removal.
· Go in equity, and say even though they’re not in the legal right,
entitled to equitable relief from the legal remedy, since the legal remedy is
unjust. Very tiny burden on π to have on their property; massive burden on
∆; and ∆ acted in reasonable good faith (innocent?) in putting it there – so
innocent mistake about where the property lines were (thought fence
reflected property line)
Tension between wanting people to plan / do things the right way, and the
fact that they just keep screwing up – so we have this kind of doctrine (not
all states have it) that gives them an “out.”
Howard v. Kunto
Issue: Misrepresentation of land boundaries in the deed. (1) Is summer
occupancy of a premises sufficiently restricted to defeat adverse
possession? (2) Can a person who receives title to tract A, mistakenly
believing they title to tract B, then occupy tract B & invoke its previous
possession by his predecessors establish title through adverse possession?
Facts: Ds own a house based on a deed written by McCall; the deed is to a
50 ft. wide parcel of land on the shore of the Hood Canal. The problem is
that the 50 ft. in the deed isn't the same 50 ft. that the house was built on,
instead a lot adjacent to the house. Several of the neighbors have the same
problem.
 P Howard wanted to convey one-half interest in their land to
someone & performed their own survey of the land that revealed the
mix up in deeds, in particular that P owned the Moyer's land & the
Moyer's owned D's land. In exchange for a deed to their land the
Moyer's gave P a title to D's land. Until P acquired deed to D's land
they never asserted any right of ownership over Ds land.
o Trial court refused to find for D because they'd occupied the
property for less than a year and only during the summer,
evidence that contra-indicated the continuity of possession
necessary to establish adverse possession.
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Reasoning: D & his immediate predecessors did occupy the tract for over
10 years as prescribed by the adverse possession statute.
(1) - Summer occupancy doesn't destroy claim of right under adverse
possession.
(2) - The continuous improvement & possession of D & predecessors
for over 10 years is sufficient to create uninterrupted possession given
the nature & condition of the property to satisfy the statutory adverse
possession requirement.
 Rule is one of substance, not absolute mathematical continuity,
so long as there is no break that severs two possessions.
 Buchanan v. Cassell - Purchaser may tack the adverse of a
property's predecessor if the land was intended to be
included in the deed between them but was mistakenly
omitted from the description.
o The deed running between the parties purporting to
transfer the land possessed traditionally creates privity of
estate that connects the possession of the successive
occupants.
 P counters the deed is insufficient to create privity if it
doesn't describe any of the land occupied.
 Court counters this is because of honest mistake,
affecting not only landowners D but their neighbors,
and public policy favors the interpretation of privity
where neighboring landowners are longtime
occupants of houses/land received in good faith
though erroneous deeds.
 Requirement of privity exists as a judicial tool to
create a reasonable connection between successive
occupants of real property, in order to raise their
claim of right above the status of trespasser.
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Class Notes:
In every state the statute of limitations is extended if specified
disabilities are present.
 Tolling - Suspension of the statute of limitations.
 The SoL is tolled if the owner is disabled from bringing action to
recover possession at the time the cause of action accrues by
insanity, imprisonment, minor incapacity, etc.
What counts as an average possessor/owner?
 The Ds use the property every summer, like all the other
average owners. Court looks to the character of the
occupancy & the nature of the structure.
Privity - Voluntary transfer of property from one person to another.
Whether it was done in writing or not is irrelevant.
Tacking - Adding on your predecessor's interests.
Ds were allowed to tack on their predecessors possessions because
privity existed by successive ownership of the deed.
 Court ruled good faith didn't matter.
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Improving Trespassers - If a trespasser in good faith (due to surveyor
mistakes) takes possession of the land then the original titleholder has two
options: (1) sell the land for fair market value, or (2) buying the
improvement.
Fee Simple & Life Estate
Defeasible Estates
Future Interests
Concurrent Interests
Leaseholds
Subleases & Assignments
Landlords & Tenants
Real Estate Transactions
Title & Recording Systems
Nuisance
Easements
Covenants & Equitable Servitudes