Property I

RIGHT TO TRANSFER

- Generally, owners of property have the right to transfer their property to another person - The state imposes a handful of restrictions on this right—e.g., antitrust and anti-monopoly regulations, as well as limitations on discriminatory treatment of prospective buyers - Courts are generally quite skeptical of restrictions on the right to transfer (restraints on alienation)

Granting a life estate: (you can have this gift when I die)

1. is irrevocable; and 2. divides the property interest in two—there's the person possessing the property for the remainder of their life (they have a life estate and are considered to be a "life tenant") and there's the person who gets the remainder upon the termination of the life tenant's life (they have a remainder and are considered to be a "remainderman").

GHEN V. RICH

Rule of Law: A person establishes a property right over whales when he takes possession of the carcass and takes practical steps to secure it, in accordance with local custom.

JOHNSON V. M'INTOSH

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

MARENGO CAVE COMPANY V. ROSS

Rule: Possession of land is open and notorious only if it would give clear and unequivocal notice to the true owner or his agent visiting the land that the owner's rights are being invaded.

TRUSTEE DUTIES

- A trustee has fiduciary duties in managing the trust, which include: - Duty of loyalty — the trustee can only act in the interest of the beneficiaries (no self-dealing!) - Duty of prudence — the trustee has to act with the skill and care that a prudent person would exercise in their own affairs (an objective standard) - Duty of impartiality — the trustee can't show favoritism toward any beneficiary, past or present - Other duties irrelevant here — avoid commingling funds, duty to account to beneficiaries, etc.

TYPES OF DELIVERY

- Actual delivery - The act of giving real and immediate possession to the buyer or the buyer's agent - Constructive delivery - When actual delivery is impractical or impossible, an act that will provide physical access to the gift—something about as good as actual delivery (keys to car) - Symbolic delivery - When actual delivery is impractical or impossible, the transfer of something symbolic of the gift being transferred (like a letter or a legal document) that generally does not provide for physical access)

OUTCOMES OF CAUSBY

- Ad coelum is basically dead as applied to airspace above land but remains in effect with regard to subsurface rights. - "The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land." - Airspace beyond that remains in the public domain unless and until it's used by the landowner - As a practical matter, property owners might expect to have the 500 feet above their land theoretically available for future development - Landowners can sell the airspace above their land—railroads were the first such landowners to do so - Cities routinely sell airspace above publicly owned lands to private developers - And the government can limit construction in airspace with height restrictions (but zoning is a conversation for next semester)

BREAKING DOWN BAILMENT

- Delivery — a physical or imaginary transfer of property - Personal property — usually something tangible! - Bailor — the owner of the property - Bailee — the person granted temporary possession of the property - Holds the property — takes possession, including temporary exercise of property obligations - For a certain purpose — usually safekeeping, but could be to borrow or service - Under a contract — contracts can be implied from contract or explicitly made - owner must deliver property otherwise bailment may not exist

BREAKING DOWN NEXT OWNER

- First person — we're not necessarily concerned with the first finder, but note the connection to finder's rights in the context of lost property. (saying "I want it" is not good enough) - Taking control — discovering an object doesn't necessarily accomplish this, but physically moving it, claiming it as yours, etc., probably would - Generally, not required to perfect abandonment — abandonment is unilateral, not bilateral, so we don't really care if there's a next owner or not; in the absence of a next owner, the property is theoretically owned by no on (Next owner is not an element. If you abandon something without a next owner, it is owned by no one)

IN RE SEIZURE OF $82,000 MORE OR LESS

- For criminals even if drug dealers, theoretically are the rightful owners, couldn't claim the money without risking arrest, so they functionally abandoned it. - Abandoned property (usually) rightfully belongs to the first person to discover it. The buyer's mechanic, acting as his agent, found it, so the buyer is the rightful owner.

BREAKING DOWN INTENT TO RELINQUISH

- Intent — ideally, we'd prefer a specific (and articulated) intent, but in the absence of that, we may be able to infer an intent - Relinquish all interests — whatever interests the original owner has, they're relinquishing all of them and holding onto nothing [in other words, this isn't a bailment] (can't say I'm giving everything away but if no one comes to get it I'll hold onto it) - No intention of specific acquisition — if the original owner has an intent that the property be acquired by someone in particular, it may be an imperfect gift, not abandonment

DELIVERY

- Possession — traditionally, we need actual possession to change hands for the delivery to be effective - Donor to donee — traditionally, the person delivering the gift would be the donor (person who owns the property) and the recipient would be the done (person who will own the property) - Manifested intention to make a gift — the previous intent has to carry through into the actual delivery

INTENT

- Present transfer — we're talking about giving a gift right now; future promises to make a gift are generally unenforceable - Existing interest — you can't give more than you have - Property — could be real property or personal property

WHY DO WE CARE ABOUT ABANDONMENT?

- Rights can also be abandoned — if someone has a right to an easement or a license, non-use consistent with abandonment can be construed to surrender the right - Interests in real property — if someone holds property under the requirement that it be used for a particular purpose, non-use consistent with abandonment can be construed to revert ownership [but we'll talk about this later!] - Fourth Amendment — abandonment of property is generally construed under the Fourth Amendment to also mean that the owner has no privacy interest in the property any longer

ILLINOIS CENTRAL RAILROAD V. ILLINOIS, 146 U.S. 387 (1892)

- State did not have the ability to grant the sub-emerged waters (tide waters) to the RR - State cannot give away large amount of land because the trust purpose itself. You cannot guarantee the trust will be met it gives up all its power to regulate. - State sold its harbor to Illinois Central through statute. Later repealed statute. Illinois Central wanted the harbor back. - Held that the original grant of property to the railroad was not valid because it violated the public trust doctrine. Alienation here would have a negative effect on the public's use of the harbor - commerce, fishing, navigation. - Look at the public's use before and after the sale to determine if there is a breach. Alienation of Trust Resources: The state cannot alienate certain property held in trust for the public unless it can prove that the alienation will have no effect on the public's use of the resource or will actually benefit public.

ACCEPTANCE

- Typically, not at issue; courts will generally find (implied) acceptance if there was actual delivery - But if a donee refuses the gift, courts won't find implied acceptance—because there's an explicit refusal! acceptance depends on the persons manifested intent - even if they do not expressly say they do not want something and take action to return it no acceptance.

BREAKING DOWN ACT TO EFFECTUATE

- Voluntary — the original owner is choosing to do this (not by trick or subterfuge) and we're using it as a proxy for the owner's sincerity - Act — we want a physical action; e.g., placing the object in a particular place [notice how this is similar to the physical delivery requirement of a gift] (can physically move it a very small amount) - Effectuating intent — the act is consistent with the intent of the original owner and the act manifests that intent; e.g., putting a sign next to the object reading, "Free to takers "

gifts of future interests

- a promise to make a future gift is generally unenforceable however, a gift of future interest in property is valid -difference: a promise to make a gift in the future does not transfer any property right to the promisee at the time the promise is made. a gift of future interest vests the donnee with title to the future interest the moment the gift is made. -gifts of future interest (live inter vivos gifts) are irrevocable -the donee's right to possession is deferred until the point in time when the present estate expires -"when i die you may have (my computer). this indicates an aquired ownershup interest at the time of death. this is too late. a preoperty owner can transfer property at his death only by making a valid will

HOWARD V. KUNTO - that a ten year summer occupancy did not

- that a ten year summer occupancy did not destroy continuity of possession for purposes of adverse possession because the land was regularly used during the time it was capable of use and defendants made continued improvements on the land. As a result, the court found tacking permitted. - The court determined the privity requirement for tacking was satisfied because defendants' claim of right as the last of successive purchasers who received title under the mistaken belief they acquired a contiguous track was sufficiently above that of a trespasser.

ABANDONMENT OF PERSONAL PROPERTY (ONLY 2 ELEMENTS)

1) Intent to relinquish — the owner must have intended to relinquish all interests in the property, with no intention that it be acquired by any particular person 2) Act to effectuate intent — a voluntary act by the owner effectuating that intent

GIFT ELEMENTS

1. INTENT - to make a present transfer of an existing interest in the property 2. DELIVERY - of possession from donor to donee with manifested intention to make a gift 3. ACCEPTANCE - of the gift by the donee - if all three elements are met gifts are irrevocable

MICHAEL V. FIRST CHICAGO CORPORATION

A finder of property acquires no rights in mislaid property, is entitled to possession of lost property against everyone except the true owner, and is entitled to keep abandoned property.

Van Valkenburgh v. Lutz

A party takes adverse possession of a property owned by another when he takes actual possession of it, encloses it and/or makes improvements to it, for statutory period of years.

Adverse possession

Adverse possession is the enjoyment of real property with a claim of right when that enjoyment is opposed to another person's claim. a person who takes possession of property without consent or permission of the owner and thereafter maintains possession for a long time may acquire title. the prior ownership is extinguished.

ELEMENTS: Adverse possession

Adverse possession requires that there be (1) an entry that is actual and exclusive, (2) open and notorious, (3) continuous for the statutory period, and (4) adverse and under a claim of right [or hostile].

Fee Simple Absolute

An estate in fee simple, or fee simple absolute, is near-absolute ownership of a parcel of real property · There are no future interests and no significant restrictions on the usage of the land · In theory, estates in fee simple last forever . . . if the world lasts that long · If you think you own something in fee simple absolute and you, don't you can use adverse possession to get perfect title

UNIFORM STATE LAW FOR AERONAUTICS

Flight in aircraft over the lands and waters of this State is lawful, unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be imminently dangerous to the persons or property lawfully on the land or water beneath.

DYCUS V. SILLERS, 557 So.2d 486 (Miss. 1990) (exception on the right to exclude)

General rule: oxbow lakes were public because at one point that is where the water was (where it was navigable and accessibility to the public at one point) 1) The public has a right to waters it did at one point. It does not matter if the public access has changed 2) Private parties can lose the right to exclude (while also subject to the limitations stated below) - Private created/manmade lakes that are landlocked are generally private - If the only reason you can access waters is through a manmade channel, then it is not open to the public - If you can access the waters through natural channels, it is most likely public. That is if the natural channel connects to something we'd consider to be public. Consider what would happen if the forces of nature create a natural channel between two manmade bodies of water. (This may not be likely, but it's a helpful hypothetical.) In that case, it's tough to conclude that the channel connecting manmade bodies of water renders them public simply because it's a natural channel.]

SUBSURFACE RIGHTS

Generally, ownership of the subsurface estate accompanies ownership of the surface estate - The surface and subsurface estates can be severed from each other: · Unified estate — surface land rights and mineral rights are wholly in the same person · Severed estate — surface land rights and mineral rights are split in two different people · Fractional estate — someone owns a portion of the mineral rights

LIMITATIONS ON THE RIGHT TO EXCLUDE

Government intrusions — government searches, health and safety inspections, or seizure of property under eminent domain · Surrender of rights — you can lose your property if you sit on your rights via adverse possession, easements, etc. · Public accommodations — innkeepers and "common carriers" (commercial enterprises that holds themselves out to the public as offering to transport freight or passengers for a fee) can't discriminate and must serve customers if the fee for the service is paid Necessity and exigent circumstances — trespassers to property generally can't be prosecuted or sued if their invasion is necessary · Discrimination — it's illegal to exclude people from property simply because they're members of a protected class · General public policy — there may be an overriding public interest in allowing certain private people to enter onto someone else's property · Custom — many states have historically allowed hunters (and sometimes fishers) onto the private, unenclosed lands of others; many still do!

CONSTRUCTIVE VS. SYMBOLIC DELIVERY

In both cases, threshold requirement is that physical or manual delivery be impossible or very hard. Constructive delivery - Not a present transfer of the property, but we imply the transfer because what the donee receives is about as good as physical delivery - Delivering property to someone else to hold onto it for the donee - Delivery of warehouse goods Symbolic Delivery - Not a present transfer of the property, but instead a physical transfer of something that represents the gift but does not, itself, do anything to provide physical access - A letter saying "I give X to you" - A certificate of title

THE LEGAL STATUS OF THE PUBLIC TRUST

It's a common law doctrine, and therefore theoretically something applicable in all states. · But state courts acknowledge their power to modify it: "As a common-law doctrine, the public trust doctrine is not necessarily fixed at its current scope. It is within the purview of this court to examine the appropriate scope of the doctrine and to expand or to mold it to meet society's current needs, as we have done in the past." Chernaik v. Brown, 475 P.3d 68 (Ore. 2020). · In some states, it's a part of their statutes or constitution. · In others, it's been read into vague provisions or statements of policy.

STATE EX REL. THORNTON V. HAY, 462 P.2d 671 (Ore. 1969): custom elements

Neither the state nor the landowner enjoys the full bundle of property rights in the dry-sand area. The doctrine of custom provides a better platform for supporting the rights of the public in the dry-sand areas. A settled custom that applies generally to all dry-sand areas will avoid the potential for multiple individual suits litigating the case-by-case merits of prescriptive easement. The doctrine of custom elements 1) To be recognized as law, is that it must be ancient. "Long and general" usage is sufficient. 2) The right be exercised without interruption. A customary right need not be exercised continuously, but it must be exercised without an interruption caused by anyone possessing a paramount right. 3) the customary use be peaceable and free from dispute. 4) Reasonableness, which is satisfied by the evidence that the public has always made use of the land in a manner appropriate to the land and to the usages of the community. 5) Certainty, which is satisfied by the limitations upon use of the dry-sand inherently imposed by its character. 6) A custom must be obligatory. This requirement is satisfied by evidence that the public's use of the dry-sand area of landowner's property has been consistent with public use of dry-sand areas on other properties and that public use of dry-sand areas has never before been questioned. 7) Finally, a custom must not be repugnant, or inconsistent, with other customs or with other law.

Next owner

Next owner — the first person subsequently taking control of it

MISLAID PROPERTY

Property that has been voluntarily relinquished by the owner with an intent to recover it later—but that cannot now be found · Property — we're still talking about personal property · Voluntarily relinquished — on purpose! ex: you place your wallet on the table at a restaurant · Intent to recover it later — owner did not intend to permanently part ways with the property · Cannot now be found — has location changed? was owner not aware of where it was placed? - landowner holds the mislaid property as bailee for the true owner with responsibilities that normally stem from a bailment relationship. the finder has no right to take the property from the premises and no property rights in the event the true owner never returns to reclaim her property. (the true owner may remember where she left her property and may return to that location)

LOST PROPERTY

Property that the owner no longer possesses because of accident, negligence, or carelessness, and that cannot be located by an ordinary, diligent search · Property — we're talking about personal property · Accident, negligence, or carelessness — not on purpose! ex: your wallet falls · out of your pocket onto the sidewalk while you're walking. · Cannot be located — location may not have ever been known · . . . by an ordinary, diligent search — present location might be hidden

ABANDONED PROPERTY

Property that the owner voluntarily surrenders, relinquishes, or disclaims · Property — we're still talking about personal property · Voluntarily — knowing, conscious effort to disclaim ownership (sometimes can be inferred from conduct) · Surrenders, relinquishes, or disclaims — no further claim to ownership (even if former owner wishes to resume ownership later

EDWARDS V. SIMS, 24 S.W.2d 619 (Ky. 1929)

RULE: As long as a party requesting an order to survey subterranean lands can demonstrate a bona fide ownership interest in adjacent property and allege facts sufficient to support a claim of trespass, the court is within its authority to issue an injunction ordering the survey - We need a bona fide claim and allege facts showing the necessity for the inspection and must allow the property owner to be heard - Dissent: lee doesn't shave a cave entrance so no way to use "the benefit" of the land, so lee should not have an ownership right

PIERSON V. POST

RULE: Property in wild animals is acquired by occupancy, meaning at least mortally wounding or capturing from a distance, and at most physical possession. A person who is pursuing a wild animal does not acquire a right to that animal by the mere fact of pursuit; Mere pursuit of wild animal with an intent to capture does not constitute ownership.

Newman v. Bost - A gift of "all the personal property in the house"

Rule of Law: A gift of "all the personal property in the house" is not effectively delivered by handing over the keys to the rooms of the house. Handing over a set of keys only accomplishes constructive delivery of items that are not in the house or that are incapable of physical delivery the items were constructively delivered to Newman if they were too large for manual delivery and could be locked and unlocked with the keys. The items not meeting these requirements were not actually or constructively delivered to Newman and remained the property of the estate

Armory v. Delamirie

Rule of Law: A person who finds a piece of chattel has a possessory property interest in the chattel, which may be enforced against anyone except the true owner of the chattel.

KEEBLE V. HICKERINGILL

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

BALL V. JAMES

Rule of Law: A voting scheme statute that conditions the right to vote on land ownership and apportions voting power according to the amount of acreage owned is constitutional if the scheme bears a reasonable relationship to the statute's objectives. - Owning property can still impact your ability to vote

Hannah v. Peel

Rule of Law: Because Defendant was not physically present in the house at any time, Plaintiff's find was defensible against all parties except the rightful owner. - If you own and occupy the property generally, we can imply that you own the property on the land. This case is an exception. Finder must also be allowed to be on the property. - What if Hannah broke in and took the brooch? Hannah is breaking the law so most likely not due to trespass

POCONO SPRINGS CIVIC ASSOCIATION V. MACKENZIE

Rule of Law: In order to legally abandon real property, the owner must successfully divest himself of all right, title, claim, or possession of the land. - You cannot abandon real property that you hold title to - Abandonment does not apply to real property that you own in fee simple perfect title. (logical that owner cannot Abdon so that someone can be liable for and pay taxes on the land) - Could be total "chaos" and people rush to claim abandoned land Arguments for real property abandonment - Transaction costs much cheaper What could the McKenzie's could have done? - Landowners merge together the land that they own and then sell it together. However, transaction costs would be really high - Could beg for the government to take it though eminent domain?

McAvoy v. Medina

Rule of Law: Mislaid property is not subject to the rule that a finder of lost property has a valid claim to the property against everyone except the true owner. - The simple act of finding mislaid property in a store does not give the finder the right to take it and claim ownership. Rather, it is the shop-owner's duty to use reasonable care to keep the property safe until the true owner returns.

DRED SCOTT V. SANDFORD

Rule of Law: People of African descent brought to the United States and held as slaves, as well as their descendants (either slave or free), are not considered citizens of the United States and are not entitled to the protections and rights of the Constitution.

O'KEEFFE V. SNYDER

Rule of Law: The discovery rule tolls the statute of limitations (it has been legally suspended -- in other words, the clock stops running for a certain period of time) if the owner of stolen personal property acted with due diligence to pursue the property.

HAWKINS V. MAHONEY, 990 P.2d 776 (Mont. 1999)

Rule of Law: The inference of intent to abandon one's property, based solely upon the acts of the owner, is a rebuttable presumption. 1) Intent to relinquish Hawkins - I would like to keep my things but I also want to leave. Of the two I would rather leave 2) Effectuate the intent Ct did not find intent Conclusive presumption - is an irrebuttable presumption Rebuttal presumption - can come back and rebut abandonment. If you abandon it "owner" can rebut the assumption to abandon property and redeem it - In this case, possible bailment + prison held onto his belongings or Hawkins DID Abdon his property but then became the first person to claim them and claim ownership - Prison could've won if mentioned prison abandonment policy but they did not Presumption from Hawkins v. Mahoney - When there is no explicit intent to abandon, we will look to implied intent - The rule adopted by the court is that, in this context, the presumption of an implied intent to abandon is rebuttable until someone else acquires possession with the intent to acquire ownership

EYERMAN V. MERCANTILE TRUST COMPANY

Rule of Law: When a landowner attempts to compel his successor in interest to do to the land something against public policy, a court may deem the condition void. - Landowner cannot destroy the property if its against public policy - Here, this was a rich "historical neighborhood" + destruction seemed senseless. Here, there was a harm being done to the neighborhood. Home in-tacked was worth 40k and after destruction only worth $640 - Case may encourage destruction before death

DEFINING A TRUST

Settlor - the person who sets up the trust Trustee - the person who holds the trust property for the benefit of others Beneficiary - those for whom the trust property is held in trust Trust property - the corpus of the trust, held by the trustee for the beneficiaries

ORIGIN OF DOCTRINE OF DISCOVERY

The Crown claimed lands under the doctrine of discovery and limited tribal nations' rights to their own lands This allocation of property rights extended to the colonial governments visà-vis colonial charters Upon independence, these rights and system of allocation transferred to the new states and the new country under the Articles of Confederation The new United States, formed under the U.S. Constitution, inherited these rights

TEE-HIT-TON INDIANS V. UNITED STATES

The Teeyhíttaan, a Tlingit clan in Alaska, challenged the taking of lumber by the federal government from their lands Challenge was raised as a Fifth Amendment challenge; the Teeyhíttaan argued that they were entitled to just compensation Rule of Law: Indian occupation of land without government recognition of ownership creates no rights against taking by the United States government. "No case in this Court has ever held that taking of Indian title or use by Congress required compensation."

TRUSTS ADMINISTERED BY STATE GOVERNMENTS

There are plenty of examples of legal trusts administered by state governments: - School trusts — states are required to keep in trust for the benefit of schools certain federally granted lands (and income/interest generated by them) - Pensions — many state constitutional provisions relating to public employee pensions explicitly invoke trusts (and they're interpreted as such by state supreme courts)

Congress passed the Civil Aeronautics Act of 1938, which declares:

There is recognized and declared to exist on behalf of any citizen of the United States, a public right of freedom of transit in air commerce through the navigable airspace of the United States

Gruen v. Gruen

To make a valid inter vivos gift (gift between living persons), the donor must intend to make a present transfer, either actual or constructive delivery of the gift must occur, and the donee must accept the gift. Here, the lower court properly found that Michael provided clear and convincing evidence for each element. Victor's letters established an intent to make a present transfer of the painting on Michael's 21st birthday. the father, at the time of the gift, owned the painting outright. He then split the interests in two—he gave himself a life estate (and became a life tenant) and gave his son the remainder (making him the remainderman). Therefore, there was a present transfer of an existing property interest: namely, the son got the remainder. Accordingly, it's not a gratuitous future promise. While something is happening in the future (the son's remainder is blossoming into full ownership at the expiration of the life estate), the relevant transfer (of the remainder) is happening at the time the gift was made. - simply saying you can have this gift when I die is not enough for a valid gift. - The first letter suffices as delivery for what is actually being conveyed because it's only conveying a future interest in the property (and future interests, unlike the property itself, aren't tangible).

UNITED STATES V. CAUSBY 328 U.S. 256 (1946)

U.S. Constitution, Fifth Amendment, Takings Clause: . . . nor shall private property be taken for public use, without just compensation. Rule of Law: Property is taken within the meaning of the Fifth Amendment by a direct and immediate interference with the enjoyment and use of private land that renders it uninhabitable. Dissent (Black, J.) At best this is an action in tort. Air navigation is a matter for Congress. - Property is taken within the meaning of the 5th amendment by a direct and immediate interference with the enjoyment and use of private land that renders it uninhabitable - Generally, flights over private land do not constitute a taking unless they are so low and frequent they cause a "direct and immediate interference with the enjoyment and use of land" - Dissent this is a tort case in disguise. Cannot sue gov. for tort but instead causby sued this case as a "taking"

IMPRESSION PRODUCTS V. LEXMARK, 137 S. Ct. 1523 (2017)

Under the patent-exhaustion doctrine, if a patent holder sells patented product to customer under contract, patent exhaustion bars a challenge based on patent infringement against remanufacturers. However, a patent holder can sue its customers for violation of the contracts they signed.

Bailment

a delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose under an express or implied-in-fact contract

gift causa mortis

a gift made by a donor who is in apprehension of imminent death. we need to meet intent, delivery, and acceptance. -intent: courts will infer an attempted gift causa mortis when the surrounding circumstances indicate that the donor acted while in apprehension of possible imminent death -delivery must take place before the donor dies -revocable if revoked prior to death (different from a testamentary transfer) - a will is revocable

Personal property

any movable or intangible thing that is subject to ownership and not classified as real property

Tangible personal property

can be seen, weighed, measured, felt, touched, or in any other way perceived by the senses

A trust indenture

collection of covenants

Doctrine of discovery

doctrine initially developed by the Catholic Church that asserted that lands unknown to the western world, and populated by indigenous peoples, could be claimed by European powers when they "discovered" it

Doctrine of "original Indian title" or "aboriginal title"

doctrine throughout the world (especially in former British colonies) that indigenous peoples' rights to land do not extend to the power to transfer or sell it

Right to exclude

general power to prevent non-owners from using (or trespassing on) their property, but exceptions for public access and easements

Right to transfer

general power to transfer property however owner wants (and courts are skeptical of limitations on this power), but there are some notable exceptions (like antitrust restrictions)

Right to possess and use

general right to use property as owner sees fit, but limited by restrictions on power to abandon and destroy property

the finder is ordinarily entitled to chattel found

in a public place

Real property

land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land

the landowner is ordinarily entitled to chattels found in a

private place if: the landowner 1) has a general intent to exercise dominion and control over her property and 2) has engaged in substantial acts of control (manifested intention to control property) - a landowner who opened her premises to the public, like operating a store, has a different intent with respect to controlling her property and different and less extensive acts of control. thus the finder has more right to the chattel. If a public place or home opened to the public look to see which area allows the owner more control over the property

privity

privity exists if there is a connection between consecutive possessors such as conveyance with the former possessor delivering a deed or title the land. privity can be through a sale or gift. succession by death and inheritance also supplies privity (generally privity is satisfied when there is a consensual transfer if a property right from the first possessor to the next possessor) - We do not assume privity from one adverse possessor to another - the parties in privity must be successive possessors of the land - special tacking problem arises in adverse possession disputes over contested boundary lines: when an adverse possessor claims title to part of their neighbors land, the modern rule is to permit tacking if the evidence indicates that both parties intended to transfer possession to the disputed area.

Intangible property

property lacking a physical existence

replevin

remedy to award damages by returning the property

trover

remedy to award damages equal to the value of the property

public trust doctrine

states hold a trust for the people for land that was covered historically in tide water. (minimum scope of the trust)

The rule of capture

the principle that wild animals belong to the person who captures them, regardless of whether they were originally on another person's land.

adverse possession legal action

trespass

Continuous/tacking

under American law, successive adverse possessors are allowed to "tack" (put together) their periods of adverse possession provided they are in privity. this allows adverse possession even though there is no single adverse possessor who maintained possession for longer than the statutory period the clock does not restart but resumes when possession is resumed (if someone leaves the property because of threat of force by and third party for a short REASONABLE time they can return and resume the statute of limitations clock) If they are gone for an unreasonable amount of time, abandons the property, or recognize someone else land ending the hostility the clock does not resume but restarts.

discovery rule

under the discovery rule, the cause of action accrues when the owner knows of the locations of the chattel or the identity of its possessor or when the owner should have known the location of identity through exercise of due diligence. (if an artist diligently seeks the recovery of a lost or stolen painting, but cannot find it or discover the identity of the possessors, the SOL will not begin to run) the owner has the burden of proving she has exercised due diligence in seeking to recover the property under adverse possession, the wrongful possessor has the burden of proof for the elements of adverse possession -due diligence can be filing a police report - just like adverse of possession, a subsequent possessor would receive the benefit of tacking and the expiration of the statute would confer title to the possessor. (as long as privity)

ACTUAL AND EXCLUSIVE

· ACTUAL — Real, meaningful entry required (this is when the statute of limitations begins to run, so we need to measure it against something) - actual possession requirement means that the claimants conduct or activities must be extensive to rise to the level of "possession" we look at: Substantial improvement and enclosure Residence on the land Construction of buildings and other structures on the premises Clearing and cultivating the land, perhaps by cutting timber, grazing animals, etc. Changing the nature of the land, perhaps by grading it, by protecting it from erosion or floods, etc. · EXCLUSIVE — Possession and control must be total (if other people are using the same land, you can't claim exclusivity) - married people and groups can meet adverse possession and even the claimants possession can be shared with third parties such as an adverse possessor can lease the property to a tenant. (just need to be acting like the true owner of the property) - exclusivity cannot be met if frequent or occasional use by the true owner · Relevance for scope of claim — e.g., difference between successfully claiming adverse possession for a fraction of a large plot of land or the entire plot - exclusivity of possession is not destroyed where the adverse claimant possesses part of a tract of land, asserting title thereto, and the true owner has possession of the remainder of the tract, to which the claimant is not asserting title .

ADVERSE/HOSTILE

· Adverse/hostile — claimant's use and possession infringes on the rights of the "true owner" - possession is adverse without the permission of the true owner (true owner cannot give consent) - if the possession is rightful during a particular period of time, then the true owner could not have filed a complaint and the statute of limitations was not running · No contractual relationship — a license to be on the land or a lease almost always precludes the licensee or the lessee from later claiming adverse possession · Under a claim of right — the possessor either believes that they own the property or they are attempting to own it. once there is recognition that it is someone else land this ends hostility and the continuous clock restarts

HOW FAR DO PROPERTY RIGHTS GO? · Air rights · Subsurface rights

· Air rights ---the air above our land and the things going across the air (airplane) · Subsurface rights - things underneath our land (drilling oil)

DISABILITY AND STATUTORY PERIODS

· Basic idea: people who are disabled at the time that a cause of action for trespass arises shouldn't be prejudiced by their disability - when a disability provision applies, the adverse possessor will not prevail, even through that person has met all of the standard element. the statutory period is "tolled" (extended) due to the disability · Qualifying disabilities — typical ones are legal insanity, youth (under age of majority), or imprisonment [which is both narrower/broader than we'd think!] · Effect — disabilities in place at the time of the entry toll the statute until the disability is removed (the disability must exist at the time the adverse possession begins. an owner who becomes disabled later is not given extra time to bring an action) -no tacking of disabilities allowed · Death can "Remove" a disability · Upon removal — usually another, shorter, statutory period

PICKERING V. RUDD, (1815) 171 Eng. Rep. 70 [KB]

· Defendant installed a board on the side of his house, which overhung his neighbor's garden by a few inches · The neighbor sued the defendant, alleging a physical trespass of the airspace of her property · Nay, if this board overhanging the plaintiff's garden be a trespass, it would follow that an aeronaut is liable to an action of trespass quare clausum fregit [breaking the close], at the suit of the occupier of every field over which his balloon passes in the course of his voyage. · As air travel increased in the 1920s, many states adopted a Uniform State Law for Aeronautics · These statutes attempted to solve the practical problem of technical aerial trespasses by declaring a right of flight

WHY DOES PROPERTY MATTER?

· Determines legal status — describing something as "property" usually deprives it of independent rights · Prerequisite for other rights — voting rights limited by property ownership (or not) · Analogy for other rights — outcomes in federal constitutional litigation are sometimes affected by the existence of a property "right" or "interest" · Our sense of worth — in a capitalist society, our status is frequently determined by our wealth, the products of our labor, and what we feel we've earned

EXPANDED SCOPE OF PUBLIC TRUST

· Dry sands — land on a beach beyond high mark of tide · Portage routes — land route from one body of water to another · Wildlife — states generally "own" wildlife in their borders, but this is unclear nationally, see Hughes v. Oklahoma, 441 U.S. 322 (1979)

Oil and gas have a special rule applied to them—the rule of capture

· Early courts falsely believed that oil and gas were constantly moving, and thus analogized them to wild animals · Owners have a right to "capture" the oil or gas on their land, even if that means drawing from the oil and gas reserves on the land of their neighbors

MORE NOTES ABOUT MINERALS

· Federal and state governments generally reserve mineral rights to themselves when they sell land · it's currently possible to adversely possess the minerals underneath land—but far easier to do so when the estate is severed · In some circumstances, surface owners can re-acquire mineral rights after years of non-use

ASPIRATIONAL SCOPE OF PUBLIC TRUST

· Groundwater — rejected in Rettkowski v. Department of Ecology, 858 P.2d 232 (Wash. 1993) · Atmosphere — at issue in Juliana v. United States and many, many state court cases. But other states have explicitly recognized the public trust doctrine as including the atmosphere, see Conn. Gen. Stat. §22a-15:

RIGHT TO REPAIR

· It's legal under intellectual property laws to repair the products that you buy . . .but good luck with that! · Manufacturers withhold access to replacement parts and repair manuals, which limits the ability to repair, makes it very expensive, or forces customers to go to the company itself for parts or labor · Some states are starting to adopt "right to repair" laws · Massachusetts voters approved "right to repair" laws that: · In 2012, gave owners the same access to vehicle diagnostic information that dealers and licensed autoshops have - In 2020, that extended the 2012 law to cover electronic vehicle data

NOTES ABOUT MINERALS

· Landowners can lease or sell the rights to the minerals underneath their land, resulting in three different kinds of estates: · Unified estate — surface land rights and mineral rights are wholly in the same person · Severed estate — surface land rights and mineral rights are split in two different people · Fractional estate — someone owns a portion of the mineral rights

OPEN AND NOTORIOUS

· OPEN — the possession can't be hidden or furtive -claimants activates must provide some form of visible evidence that the property is be adversely used . this enables the true owner, who acts diligently, to discover the trespass before the statute of limitation expires and take appropriate action · NOTORIOUS — known (constructively or actually) by the public - the physical acts must be of a nature that imparts notice on the local community and thus the true owner, who is a presumed interested member of that community · Relevant question — are claimant's activities objectively capable of being noticed?

RIGHT TO EXCLUDE

· Property owners have a general right to exclude—regardless of whether the property is real or personal · Historically, this right was protected more by remedies available in civil law than in criminal law - Trespass to land and trespass to chattel - Criminal trespass is more recent and has a higher standard for liability Use of some force to safeguard property is allowed, but limited in civil and criminal law · Is it (also) a duty to exclude? · Repeated invasions can give rise to claims of adverse possession, easements, etc. · But it's also a power to decide who you include

CONTINUOUS

· Statutory period — the actual possession of the land by the claimant must run for the required statutory period · Not literally constant — the natural use and enjoyment of property requires sometimes (even frequently) leaving the property; this doesn't interrupt the statutory period - cts allow seasonal possession to qualify as continuous where the land, due to its nature, is both suitable and normally used for seasonal endeavors (summer homes)

ACCEPTED SCOPE OF PUBLIC TRUST

· Submerged lands — the waterbeds in navigable waterways in oceans and large lakes, through the high water mark · Water flowing over them — water over the submerged lands · Rivers and submerged lands — per Illinois Central, at least those capable of sustaining commerce; state law can be (and frequently is) more expansive · Parklands — generally within the scope of public trust, but governments have more discretion

ORIGIN OF PUBLIC TRUST

· The Crown held title to navigable waters, including the waterbed, subject to the ebb and flow of the tide; the public retained rights of passage and fishing · These same rights were asserted in the British colonies in North America · Upon winning independence, the rights transferred to the states · Under the Equal Footing Doctrine, all subsequent states inherited the same rights

Air rights

· The rationale for the ad coelum rule in the modern world was undermined pretty quickly · The first hot air balloon flights too place in the 1780s—were landowners going to sue aeronauts for a trespass? · Note that the literal meaning of the ad coelum rule would absolutely allow actions like this ·- ad coelum rule is basically gone (own up to the heavens and hells below)

Mineral rights accompany subsurface rights

· When minerals are in the ground, they are considered to be real property · When minerals are removed, they are considered to be personal property