Owning Real Property

Hinman v. Pacific Air Transport

(Trespass to Land/ Conception of Property) Guy seeks injunction of planes over his house. Flight over the house is not trespass. We own so much of the space above the ground as we can occupy or make use of Without possession, no right can be maintained. Ad coelom: Owner owns the ground below and the sky above

Elements of Adverse Possesion

1. Actual Possession - Claimant must be physically present and use the land in a way that a reasonable owner would. 2. Exclusive Possession - Cannot share the possession with the true owner or public. 3. Open and Notorious Possession - Use must be visible and obvious 4.Adverse and Hostile Possession Under Claim of Right Note: adverse under claim of right means you do something to show that you are protecting the land (such as no trespassing signs) Note: Hostile under the color of title - have a quitclaim deed 5. Continuous Possession - periods of possession cannot be aggregated. 6. For the statutory period - look at the state to see how long.

Three results of adverse possession.

1. Creates new title in the AP and extinguishes title in previous owner. 2. AP starts a new chain of title and extinguishes chain of previous owner. 3. Properties owned by the federal, state, local government cannot be claimed under adverse possession.

Four Justifications for Adverse Possession

1. Preventing frivolous claims 2. Correcting title defects 3. Encouraging development 4. Protecting personhood

Three systems for ground water allocation.

1. Reasonable Use: Surface owner may use ground water only for reasonable use. 2. Correlative Rights: Surface owner is entitled to use a proportional share of the groundwater. 3. Permit: Title to groundwater is vested in the state; surface owner has to get a permit to obtain possession of the groundwater.

Three systems to allocate surface water.

1. Riparian: Assigns water rights to landowners whose property adjoins the water. 2. Prior Appropriation: Location of owner's property is irrelevant. Water rights are allocated to the first person who uses the water for a beneficial purpose. 3. Permit System: Government regulates who owns the water and how much can be withdrawn through permits.

What is adverse possession?

A method in which a non-owner can acquire property rights.

Carpenter v. Ruperto

AP cannot rely on claim of right when good faith is required, and possessor knew they were not the true owner. Must rely on claim of title instead.

What is the vertical dimension of ownership?

Ad Coelom Rule: Whoever's is the soil, it is theirs all the way to heaven and all the way to hell.

What is tacking?

Adverse possession periods of two or more successive occupants being added together to meet the statutory period.

US v. Causby

Airspace Rights If something interferes with the use of the property or affects the property so that it has no more value, there is taking. Flights over private land are not a taking unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land. The trespass would have to affect the use of the surface of the land itself. You only have rights to airspace as far as you can use it

Gurwit v. Kanmatzer

Does posting signs, planting food, and cutting firewood satisfy adverse and hostile possession? "No trespassing" and "no hunting" signs were enough to show adverse and hostile possession under claim of right - must just exercise dominion over the property as much as the property will allow.

States of Mind for Adverse Possession

Good Faith - The law should not reward someone who goes out to deliberately take someone else's property; the AP must believe that he was occupying his own land. Bad Faith - The law requires that the AP acts under a "claim of right" which excludes mistaken occupiers of land from making AP claims; the AP must have known the land was not actually his own. Irrelevant - Claim of right requirement only requires that the AP acts towards the land in the way a true owner would.

Tioga Coal Co. v. Supermarket General Corp.

If the rest of the elements are met, hostile state of mind can be implied.

Fulkerson v. Van Buren

Possession of land will not ordinarily be presumed to be adverse, but rather subservient to the true owner of the land. The attention to hold adversely must be clear, distinct, and unequivocal. Look the whether the state requires good/bad faith or is irrelevant. Possession must be hostile.

Michigan Citizens for Water Conservation v. Nestle Waters North America, Inc.

Reasonable use principles: 1. Fair participation in the use of water 2. Law will only protect use that is reasonable 3. Law will only redress unreasonable harm (if the use of water by the defendant was more than substantial)

Chance v. BP Chemicals, Inc.

Subsurface Rights Subsurface rights are not absolute. They are limited A property owner can only recover for trespass of subsurface rights if there are some type of physical damages and direct interference with use. A property owner cannot recover for deep ground disposal.

Van Valkenburgh v. Lutz

Suing for an easement is seeking permission to be on the previous owner's property because he could not take possession of it. This acknowledges the person seeking the easement is not the true owner of the land. Adverse possession claims are usually only granted where: (1) premises are protected by a substantial enclosure; or (2) are usually cultivated or improved.

What is water law?

System of laws to explain how water is allocated.

Siprino v. Great Springs Water of America, Inc.

With the rule of capture for water, land owners can pump as much groundwater as they choose without liability to his neighbors who claim that the pumping has depleted their wells. Public Policy: (1) movement of groundwater is so secret that it would be hard to administer any legal rules; (2) it could harm the status quo for other industries.

Howard v. Kunto

• Requisite possession requires such possession and dominion as ordinarily marks the conduct of owners in general in holding, managing, and caring for property of like nature and condition. → Seasonal property (summer home) establishes continuous possession if it is being used like it is meant to be. • Tacking is appropriate to meet the statutory requirement if the successive occupants are in "privity" or have "privity of estate." • Privity of estate is where land was intended to be included in the deed between them but was mistakenly omitted from the description. • Privity estate is the mutual or successive relationship to the same rights of property. There must be some sort of relationship between AP1 and AP2. (Example of relationships: The executory is the privity with the testator, the heir with the ancestor, the assignee with the assignor, the donee with the donor, and the lessee with the lessor.) • Technical requirement of privity should not upset long periods of occupancy of those who, in good faith, received erroneous deed descriptions. Their "claim or right" is no less persuasive than the purchaser who believes he is purchasing more land than his deed described, which is a common AP claim. • Actual requirement of privity is just a judicial recognition of the need for reasonable connection between successive occupants of real property so as to raise their claim of right above the status of the wrongdoer or trespasser.