ACQUISITION BY CAPTURE



Property 5

Acquisition By Capture 5

Actual physical possession 5

Pierson v. Post (Fox) 5

Ghen v. Rich (Whale) 6

Interference with Business 6

Keeble v. Hickeringhill (Duck Pond) 6

Externalities (Demsetz - Toward a New Theory of Property Rights) 6

Coase 6

Acquisition by Find 6

First in Time 6

Relativity of Title 6

Finder has better right to find than all the world except true owner. 6

Armory v. Delamirie 6

Constructive Possession 6

Finds on private property go to owner 6

Hannah v. Peel (Exception) 6

Invited guests 6

Employees 7

Finds on Private Property Open to the Public 7

McAvoy v. Medina 7

Mislaid objects go to owner of land. 7

Lost objects go to the finder 7

Adverse Possession 7

Elements 7

Exclusive possession 7

Open and Notorious 7

Continuous 7

Statutory Period 7

Hostile 7

Claim of right 7

Policy 7

As Statute of Limitations 7

Color of Title 7

Taxes 7

Adverse Possession Against Governement 7

Real Property 7

Van Valkenburgh v. Lutz (uncle Charlie) 7

Manillo v. Gorski 7

Morengo Caves 7

Howard v. Kunto (shifted lots) 7

Tacking 8

Of AP 8

Of Real Owner 8

No AP against future interests 8

Personal Property 8

Policy 8

O'Keeffe v. Snyder 8

Disabilities 8

Aquisition by Creation 8

Interference with Business 8

International News Service v. Associated Press 8

First in Time 8

Cheney Bros. v. Doris Silk Corp. 8

Unnecessary Statutes 8

Virtual Works v. Volkswagen of America 8

Nuisance 8

Traditional 8

Use one's property in such a way as not to injure the property of another. 9

Elements 9

Substantial 9

non-trespassory 9

invasion of the 9

use or enjoyment of the land. 9

Intentional – Most cases. 9

Unintentional 9

Balancing Test 9

Policy for Balancing 9

Boomer v. Atlantic Cement Co. 9

Spur 9

Property Rules, Liability Rules, and Inalienability 9

Source 9

Property Rules, Liability Rules, and Inalienability: One View of the Cathedral 9

Guido Calabresi / A. Douglas Melamed 9

Property Rule 9

Must be negotiated for and bought, with consent 9

Use when equity and efficiency point the same way 9

Liability Rule 9

Rights to compensation 9

Informative to judge. 9

Inalienable 9

Cannot be taken away 9

Choosing 9

Consider transaction costs. 9

Risky course gives property right to party that doesn't deserve it and relies on post verdict bargaining. 9

When case is close, tough to choose, yet magnitude of mistake is small too. 9

Restatement View 9

Injunctions 9

Damages 9

The Right To Exclude 10

Balancing in Trespass 10

Supreme Court Cases 10

No exclusion for entire town 10

Marsh v. Alabama (1946) 10

Picket Reach Specific Persons 10

Logan Valley Plaza (1968) 10

Decline to Expand Logan 10

Lloyd Corp. v. Tanner (1972) 10

Overrules Logan Valley 10

Hudgens v. NLRB (1976) 10

Pruneyard Shopping Center v. Robins (1980) 10

State v. Shack (1971, NJ) 10

Bell v. Mayland (1964) 10

Possessory Interests In Land 11

Rights in Land 11

Sell 11

price controls 11

blood, organs, babies - give not sell 11

Destroy 11

paper money 11

haz. waste 11

Gift 11

can't in bankruptcy "fraudulent conveyence" 11

sell but can't give. 11

Possessory Estates 11

Granting Language 11

Words of Purchase - To Whom 11

Words of Limitations - What interest 11

Freehold v. Non Freehold Estates 11

Freeholds 11

Non-freeholds 11

Types 11

Fee Simple Absolute 11

Life Estate 11

Fee Tail 11

Leasehold Estates 11

Defeasible Estates 11

Generally 11

Fee Simple Determinable 11

Fee Simple Subject to Condition Subsequent 11

Public policy is Pro-Marriage 12

Adverse Possession in Defeasible Estates 12

Alienability Differences 12

Future Interests 12

Remainders 12

Remainder Test 12

Divest 12

Vested Interests 12

Vested or Contingent Test 12

Condition precedent 12

Executory Interest Test 12

Examples 12

Special Rules For Future Interests 12

Acceleration in Possession 12

Destructibility of Contingent Remainders, Doctrine of 13

Waste 13

Merger, Doctrine of 13

Rule in Shelly’s Case 13

Worthier Title, Doctrine of 13

Rule Against Perpetutities (RAP) 13

Alternatives to RAP 14

Cy Pres 14

Wait and See 14

USRAP 14

New York 14

RAP and Leases 14

The Symphony Space, Inc. v. Pergola Properties, Inc. 14

Easements 14

Generally 14

Right to enter other’s land. 14

Enforcement between contracting parties. Like K 14

Remedies 14

Transferability. 14

Positive Easement 14

Right to enter other’s land 14

Negative Easements 14

Owner promises to refrain from certain action 14

Types 14

Will not block light or air. 14

Lateral Support 14

Subadjacent Support 14

Blocking Artificial Stream 14

Generally 14

Easement Creation 15

Grant 15

Reservation 15

Exception 15

Prescription 15

Necessity 15

Private Eminent Domain 15

Easement Termination 15

Abandonment 15

Necessity 15

Prescription 15

Sale 15

Merger 15

Defeasibility/TOY 15

Types 15

Real Covenants 15

Definition 15

Positive 15

Negative 15

Remedy at Law 15

Caveats 15

Use contract law when between original promisor/promisee 15

Running With The Land 16

Generally 16

Burden 16

Benefit 16

Equitable Servitudes 16

Remedy 16

Remedy at Equity, Injunctions. 16

Elements to Run 16

Burden 16

Benefit 16

Tulk v. Moxhay 16

Establishes equitable servitudes in UK 16

England didn't recognize instantaneous privity. 16

on grounds of fairness 16

Benefits of Covenants 16

Reciprocal Promises 16

Non-reciprocal promises 16

Third Party Beneficiary Solution 16

Implied Negative Reciprocal Servitudes 17

Condo Associations 17

Generally 17

Nahrstedt v. Lakeside Village Condominium Association, Inc. 17

Pets 17

Kids 17

Test 17

Protects against poor choices. 17

Size of Area Restricted 17

Propagation of Rule 17

Trusts 17

Reasons 17

Lack of flexibility in L.E. 17

Creates trustee with power to sell and negotiate 17

Co-Ownership 17

Tenancy in Common 17

Elements 17

Creation 17

Default modern presumption in "To B and C" grants 17

Joint Tenancy 17

Right of survivorship 17

Common Law Presumption 17

Four Unities 17

Destruction 17

Tenancy By the Entirety 18

Elements 18

Destruction 18

Marital Property 18

Common Law 18

Coveture 18

Married Women's Property Acts (1840-1900) 18

Equitable Division 18

Community Property 18

9 states 18

Divides Property into Categories 18

Community Property 18

Commingling 18

Fiduciary Duty 18

Division of Assets 18

Landlord Tenant Law 19

Generally 19

Types 19

Term of Years 19

Periodic Tenancy 19

Tenancy at Will 19

Tenancy at Sufferance 19

Tenants Remedies 20

At CL 20

Constructive Eviction 20

Illegal Leases 20

Implied Warranty of Habitability 20

Delivery of Possession 20

Covenant of Possession 20

English Rules 20

American Rule 20

Subleases and Assignments 20

Sublease 20

Assignment 20

Determination 20

Commercial - Right to Sublease/Assignment 20

Residential Right to Sublease/Assignment 21

Residential Duty to Mitigate 21

Recording System 21

Title Search Process 21

Common Law Rule 21

First in Time 21

Exceptions to First in Time 21

Recording Acts 21

Generally 21

Race 21

Notice 21

Shelter Rule 21

Race Notice 21

Faulty Recording 21

Wild Deeds 22

Chain of Title Problems 22

Covenants & Easements 22

Records Too Soon 22

Records Too Late 22

Land Sales Contracts 22

Purpose 22

Warranties of Grantor 22

Has ownership 22

Marketable Title 22

Violation of Marketable Title 22

Present Violations of Ordinanace & Covenants 22

Adverse Possession 22

Deeds 22

Purpose 22

Effectuates Land Sales 22

Types 22

Quitclaim Deed 22

Special Warranty Deed 22

General Warranty Deed 22

Present Deed Covenants 22

Generally 23

Seisin 23

Right to Convey 23

Against Encumbrances 23

Future Covenants 23

Quiet Enjoyment 23

of General Warranty 23

of Further Assurances 23

Zoning 23

Reasons For 23

Public/Private Land Use Controls 23

Sources 23

Village of Euclid v. Ambler Realty Co. (1926) 23

Aesthetic Zoning 23

Generally 23

Serves General Welfare 23

Standards 23

Zoning Against Speech 24

Adequate Substitution Required 24

Exclusionary Zoning 24

Mt. Laurel I 24

Mt. Laurel II 24

Mt. Laurel III 24

Altman's Thoughts 24

San Antonio Independent School District v. Rodriguez 24

Other Solutions 24

Limits on Ownership 24

Exclusion 24

Use 24

Destruction 24

Alienability (Sale) 25

Eminent Domain 25

Takings 25

Constitutional Source 25

Limits 25

Reasons for Compensation 25

Regulatory Takings 25

Goes Too Far 25

Pennsylvania Coal v. Mahon (1922) 25

Conceptual Severance/Denominator Problem 25

Penn Coal II 25

Goes Too Far II 25

Means/Ends testing 25

DIBE 25

RRI 25

Parcel as a Whole 25

Penn Central v. City of NY (1978) 25

TDR's 25

Permanent Physical Occupation 25

Benefits 25

Loretto v. Teleprompter CATV 26

Exception for Invited Occupations 26

Forced Regulatory Purchases 26

Non-Permanent Cases 26

Nuisance Control 26

Rule 26

Haddacheck v. Sebastian 26

Miller v. Schoene 26

Muggler v. Camdus 26

Harm or Benefit 26

Why not pay? 26

Diminution to Zero 26

All Economicly Viable Uses 26

Traditional CL Nuissance & Property Laws 26

Lucas v. South Carolina Coastal Council (1992) 26

No SOL on Takings 26

Palazzolo v. Rhode Island (2001) 26

Temporary Takings 27

Suits for Takings Damages 27

Compensation Due When Statute Withdrawn 27

First English v. County of LA (1987) 27

Reasons 27

Bad 27

Moratoriums 27

Exactions 27

Same Purpose Test 27

Nollan v. CA Coastal Commission 27

Unconstitutional Conditions Doctrine 27

Concerns 27

Efficiency 27

Analogy 27

Rough Proportionality 27

Dolan v. City of Tigard (1994) 27

Takings Decision Tree 27

No implied covenents 28

Property

relationship among people with respect to things no to a relationship between a person and a thing.

Rights the law protects

Acquisition By Capture

Actual physical possession

Pierson v. Post (Fox)

Possession

Administerability

simple if everyone knows rule

eliminate quarrels

Fairness

A tires out fox, B captures

First in Time?

Instrumental

encourage success not effort

Sport or fox elimination service

Rules can become outdated

Custom

dissent's view

Success v. Effort

No - pursuit alone

Yes. Mortal wounding

Ghen v. Rich (Whale)

Facts

∏ sues for value of whale minus finders fee

Possession

Continued pursuit impossible

pursuit as constructive possession

Name on bomb-lance

Interference with Business

Keeble v. Hickeringhill (Duck Pond)

Instrumental

encourage duck harvesting

judge balanced interests

Interference with commerce

Externalities (Demsetz - Toward a New Theory of Property Rights)

Tragedy of the Commons

Externality

Effect that actor can ignore when computing costs in decision making. Cost to others.

Communal Property

Finite set of people

Property communal

Catch, private

Sharing of catch might upset theory

Tragedy of the Commons

overhunting, mistrust, race to consume

Lake Superior situation can stop this

Free Rider

under contribution, others pay, benefit received

Transaction Costs

Hold-out

best hunter makes demands to give up rights

Private Property

Concentration of Costs and Benefits

Internalizes externalities

Ownership discrete

Lower transaction costs

Fewer persons to negotiate with

Internalization

Decision to reject benefit (liability rule)

Making the offer, or imposition of the fine.

Other Option to Private Property

regulation

communal ownership

Coase

Conditional on low transaction costs

Legal Rules Don't Matter

Outcome is the same.

Acquisition by Find

First in Time

Relativity of Title

the finder of a chattel, though he does not acquire an absolute property in it, yet has such a property, as will enable him to keep it against all but the rightful owner

keep them against all the world but the rightful owner

Contra Waste

Contra Self-Help

Finder has better right to find than all the world except true owner.

Armory v. Delamirie

suit in trover (for value, replevin for object)

Owner still secure in ownership, discourages excessive efforts to protect prop.

Puts item to use even though lost

preserves distinction between thieving and finding.

The finder of a chattel may maintain trover for it.

Prior possesors often are owners who can't prove it.

Constructive Possession

Finds on private property go to owner

Hannah v. Peel (Exception)

Owner never had constructive possession

Invited guests

keep liability of loss with location of property.

owner has better claim

limited purpose of invited guests. Less worry about supervising these guests

Employees

employers own find. rule is considered wrong

most hotels reward with employees with finds. law got it wrong

Finds on Private Property Open to the Public

McAvoy v. Medina

Mislaid objects go to owner of land.

Lost objects go to the finder

If kept with shop, more likely for real owner to retrieve

Dubious distinction between the two

Removes incentives for finder to reveal find.

Adverse Possession

Elements

Exclusive possession

Open and Notorious

Sufficiently open to give real owner reasonable notice

Continuous

Normal use

Summer house, just for summer. How an average true owner would use the property, such that neighbors would regard it as exclusive dominion.

Statutory Period

20y Common Law

5y CA

Hostile

Lack of consent from real owner

Claim of right

Goes to hostitlity & Open & Notorious

Some jx's have good faith required

Some have bad faith required.

For lotlines Maine doctrine (Subjective)

perverse rewards bad faith.

CT Test Objective Test

CA has no claim of right req.

Policy

Reward use – 19th C. notion, during industrialization

Encourage monitoring of property

Owners often not thieves, victims of fraud or error.

A sells to B and C, C lives there 20y, then B sells to D.

As Statute of Limitations

Preserve evidence

Only concerned with first trespass.

Color of Title

Specific written instrument involved.

Can shorten statutory period.

Use of any part can be adverse for entire lot.

Taxes

CA & some states require taxes to be paid.

Adverse Possession Against Governement

Generally not allowed

Inefficient. Why punish everyone for single officials poor acts

Burden. Vast tracts of land.

Real Property

Van Valkenburgh v. Lutz (uncle Charlie)

NY requires "claim of title", hostiltiy

NY statute said have to "enclose" land

Manillo v. Gorski

Lotline problem.

Rejects - ME doctrine , "claim of right."

Adopts CT docrine

No presumption of knowledge, open and notorious, from a small encroachement.

pay fair value.

Morengo Caves

Tension between open and notorious use and openness of rights violation

Howard v. Kunto (shifted lots)

Definition of continuous for summer home means normal use.

Tacking for satisfaction of the statute is allowed with parties in privity.

Tacking

Of AP

Allowed with Privity

voluntary transfers only

no document required

Of Real Owner

Generally denied new statute of limitations.

Reset SOL could extend litigation infinitely into the future

No AP against future interests

"To A for life, then to B."

If AP arrives after the grant, then SOL doesn't run against B.

B gets new SOL after taking possession

If AP arrives before grant, then SOL runs against both.

Personal Property

Policy

Generally though theft is worse than trespass

Poor record keeping for personal property

Open & notorious difficult to identify

Rights violation simple to spot, property is gone!

O'Keeffe v. Snyder

Discovery Rule

Had reasonable steps been taken, when you would have known the identity of the possessor is when the SOL starts to run

Difficult to administer. Counter factual

Open and Notorious and Reasonable Search the same thing.

NY Rule

Date of demand on possessor.

UCC 2-403

M entrusted with property of O can transfer good title to B.

Must be merchant of this type of chattel.

Not stolen goods, just entrusted goods.

Incentives to trust merchants.

Voidable Title

B buys from A with bad check (has VT)

B can transfer good title to C

Void Title

B steals from A

B cannot transfer good title to C

Disabilities

Military, Insane, Prison, Minor

Most Jx's accomodate

SOL tolled until diability removed.

Only first disability counts.

Aquisition by Creation

Interference with Business

International News Service v. Associated Press

Reap what you sow. Benefits of efforts

Create incentives for competition and cheaper prices

Monopoly = High R&D & High Prices

No Monopoly = Lower R&D lower prices.

Ownership of the news suppresses discussion

Court sees as interference with AP's business

First in Time

Cheney Bros. v. Doris Silk Corp.

Foil to INS about monopoly incentives.

No property held in silk designs

Snobbery

Time advantage in first producer

Distinguished INS v. AP to hold strictly to the news.

Unnecessary Statutes

Virtual Works v. Volkswagen of America

Like fox hunting? Promotion of activity

Reap where you didn't sow

Not sure you need this statute, however poaching could be a problem

Types

Cybersquatters

Wait to sell

Parasites

AdultsRUs

Poachers

i.e. if Virtual Works sold cars

Nuisance

Traditional

Use one's property in such a way as not to injure the property of another.

Elements

Substantial

non-trivial

non-trespassory

Big particles.

Some Jx's have abolished this distinction

invasion of the

Actually comes onto property

Fountainbleu Hotel

Lack of light not an invasion. Can't be nuisance.

use or enjoyment of the land.

Use...land – Not personal, but in use of property

Intentional – Most cases.

Liable when have knowledge

Reasonably Know

Substantially certain.

Unintentional

Liable when Negligent, Reckless, etc.

Balancing Test

Majority of Jx's do B ................
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