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Property Law Outline

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Chapter 1. First Possession: Acquisition of Property by Discovery, Capture, & Conquest

  1. Acquisition by Discovery

Action of Ejectment: a civil action to recover the possession and/or title to land.

Discovery: entails the sighting/finding of previously unknown land; frequently accompanied by landing, a symbolic taking of possession that gives rights to title that must be cemented by making effective occupation within reasonable time.

First Possession: the notion that being first to possess something justifies ownership

Conquest: establishing occupancy of land & resources through the use of force

Possession: exercising physical control or dominion over land or objects

Occupancy: actual possession of land or personalty

Title: legally recognizable claim to ownership of land which confers rights to the titleholder and privileges pertaining to its use and conveyance thereof

Nemo Dat (quod non habet) Principle: you cannot give that which you do not have

Chain of Title: Metaphor used by courts to resolve land disputes; each “link” in the “chain” represents a previous owner and is traced back to the original grantor, or root of the title. *The traditional rule is that if both claims trace back to the same root of title, then the prior grantee prevails.

Root of Title: the original entity establishing legal title over land

Common Grantor: a source of title who grants land/possessions to two or more grantees

First-in-Time Rule: provides clarity/certainty as to who holds rightful title; default rule to resolve disputes

Johnson v. M’Intosh (1823)

Rule: Land title transfers are only valid when made under the rule of the currently prevailing government.

     B.   Acquisition by Capture (And the Right to Exclude)

  1. The Rule of Capture

Rule of Capture: Wild animals become your possession upon pursuit of the animal and depriving the animal of natural liberty.

**This rule applies to oil and gas. Oil and gas are not considered owned by anyone until reduced to physical possession, as long as the owner drilled within the imaginary column of space under his land. 

  • Policy reason not to apply this rule is b/c it encourages a race to drilling. Many states have therefore modified the rule.

Ferae naturae: wild animals

Custom: practice or tradition among particular groups which is often used by court to decide merits of case

Constructive Possession/Ratione soli: "according to the soil"is a justification for assigning property rights to landowners over resources (including animals) found on their own land.

Locke’s Labor Theory of Property: private property may be created through labor

Doctrine of Accession: Comes into play where A applies labor and/or materials in good faith to materials to some object(s) that B owns.

  1. If A adds innocently and in good faith applies labor alone, the final product is generally awarded to B, unless A’s labor (1) transforms the original item into a fundamentally different article; or (2) greatly increases the value of B’s original item. However, B is entitled to damages equal in value of the original material before transformation.
  2. If A adds labor and materials, the final product is awarded to the owner of the principle materials. What exactly constitutes “principle material” is often difficult to prove.

Economic Theory of Property: derives from utilitarian account of property (Jeremy Bentham); views concept of property as a human invention/social construct. Dominant view today.

Tragedy of the Commons: a theoretical view of cataclysmic consequences arising from property rights being assigned upon acquisition due to humans having an innate self-interest regardless of others’ needs. Come under fire recently due to work of social psychologists.

Equitable Division: a legal concept with its basis in Ancient Roman Law which provides for an object, in which parties to a lawsuit both have legally cognizable property claims, to be sold and the proceeds divided between the two according to the degree of their ownership interest

Pierson v, Post (1805)

Rule: In order to obtain possession of a wild animal, the pursuer must at minimum deprive that animal of its natural liberty (i.e. mortally injuring, entrapment, enclosement, incapacitation, etc.)

Dissent: Possession of wild animals should be left to determination of huntsmen according to their custom

Keeble v, Hickeringill (1707)

Rule: A property owner has a right to make lawful use of his property for profit without malicious interference of others.

Dissent: Possession of wild animals should be left to determination of huntsmen according to their custom

Popov v, Hiyashi (2002)

Rule: Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property AND the effort is interrupted through the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the item.

                II. The Right to Exclude

The Right to Exclude: a legal right to exclude others from your property

Externalities: effects of activity by one person on others which the actor has not taken into account

Jacque v, Steenberg Homes, Inc. (1997)

Rule: the right to exclude is absolute

Social Policy: One could be awarded punitive damages for intentional trespass, even if compensatory damages were not warranted, in order to protect property rights


State v, Shack (1971)

Rule: the right to exclude is not absolute. Property ownership rights does not include the right to refuse access to individuals providing government services to workers housed on the property.



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