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Full Property Outline

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This is an extract of our Full Property Outline document, which we sell as part of our Property Outlines collection written by the top tier of St. Thomas University College Of Law students.

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MESNE: intermediate conveyance → all accompanied by title which comes with limitations; title to law under
British common law comes with limitations regarding the use of the land that is customary in great Britain.
Legislation enacts statutes in the best interest of the community; decides the limitations on title | the court applies and enforces the limitations.



• Subject & agent

• European law - Conqueror & conquers
(bottom of pg.7)

• Become subject of conveyed property

• Individual people become keep property and become citizen of place where property is located.

• Can keep location & change allegiance or vice versa.

OCCUPANCY & RIGHT TO CONVEY →Johnson v. M'intosh (U.S. 1823): J purchased a land by the Indians. After the declaration of independence, county of Illinois, where the land was located, was created by the state of Virginia. The land is conveyed to the US government & 35 years later the US sold a portion of the land to M. J claims superior title under purchase and conveyance from the Indians and M' claims superior title due to a direct conveyance from the US

Cause of action: ejection; remove someone from property must trespass & stay there.
Native Americans could not be assimilated because culture was too different

Resolution native Americans can occupy the land (right to possession)
o Title of land (landlord has title & tenant has possession; if landlord comes in to cook something bc he owns the property that is considered trespass bc tenant has the exclusive right of occupancy during the lease)
o Cannot buy land from the Indians bc title was already vested in the US (treaty was for occupancy not title)
o The only institution competent to convey title to the land was the US. PROPERTY OUTLINE
BUILDING INFRASTRUCTURE →CYRUS (1821): C owns a land and began to build a wharf which included a triangular piece that is beyond the commissioners line. The legislature had passed a law establishing harbor lines.

Cause of action: wharf was in the ocean and declared to be a public nuisance.
Eminent domain: right of government to take and appropriate private land to public use by providing reasonable compensation therefor.
Here, police power vested in the legislature by the constitution
Cannot use your property in a way it will be injurious to the rights of the community.

RULE OF CAPTURE →Pierson v. Post (1805): Post was hunting a fox at the beach (inhabited & unpossessed) and Pierson was aware of the chase, so he went ahead and captured and killed the same fox.

Merely pursuing an animal does not give legal right, it must be captured or killed in order to constitute possession

• Occupy: French from "occupying a possession"; something less than possession but more than chasing something down the road.

• What are we trying to protect with this rule? Labor and industry of hunting for food → trying to avoid conflict:
free for all bc if by chasing it is yours then conflict arises.

• DISSENT: ask modern hunters bc this rule was decided years ago when such fights did not exist; modern people
& we have to develop modern rules & we have to obtain them from experienced people. Involving international law rule to kill a pirate "Hossen Humani Generi" - pirates were considered outlaws (anyone can kill them).


• Rules v. Standards

Rules: less justice & less expensive.
o Standards: less injustice & are more expensive.

• Limits to identity and body: appropriation & rights to publicity

On the street we cannot object to our picture being taken

Rights are infringed when you take picture of someone on the street and use it as commercial advantage - CL right to privacy

Once part of your body is removed you lose your rights to it (organ donor)

→Keeble v. Hickeringill (1707): K owner of a land where he set up a decoy pond and used it for the purpose of luring ducks to his property to make profit. H had a decoy pond as well and on several occasions fired off guns near K ponds for purposes of scaring away the ducks. K sued for trespass (cannot show possessory interest in the ducks because they flew away)

Making a decoy & having ducks is lawful. Is unlawful to do something malicious to the property of another as here H shot at the ducks to scare them away.
landowner is considered as being in possession of a resource that is on or in her land even if she does not have physical possession of it until it takes off.
Court: decoy and ducks was a business enterprise that contributes to public good and provides profits to π; Δ
interfered tortuously.

→Popov v. Hayashi (2002): P tried catching home run hit. As the ball reached the stands it was headed into P direction which he intended to catch but before he could secure the ball [it was never established if P retained control of the ball]
was attacked by a crowd and fell to the floor. H was not involved in the attack and was involuntarily forced to the ground.
H saw the ball on the ground picked it up, stood up and put it in his pocket. PROPERTY OUTLINE

• Cause of action: π argues conversion (wrongful exercise -actual interference- of dominion over personal property of another-intentional act) & trespass to chattels (personal property has been damaged by Δ use of property or Δ interfered with the use of property)

• Customary - baseball hit out of the field becomes property of the first person that catches it. Ball is considered abandoned by the owner

• Grays definition of POSSESSION - actor must retain control of the ball after incidental contact with people and things - π did not establish complete possession as he did not retain control due to the crowd.

• Court: person undertakes significant steps but incompletes possession and effort is interrupted by the unlawful act of others, the person had pre-possessory interest in the property.

• As Δ was not a wrongdoer but a victim and obtained unequivocal dominion and control of the ball & prepossessory interest does not establish full rights to possession = both are entitle to possession

• Remedy: partition - in hind (half and half of property) not ideal & by sale (sell ball and divide profits) → the interest merge by sale to a third party

• Commons - unowned

Limited-access commons: limit access to and use of some resources to members of a relatively small group, all whose members have equal privileges & group can exclude outsiders from access to the land.
o Open-access commons: no single individual and no group has right to exclude anyone, land is open for anyone to use.

Relationship between surface rights, ownership of rights, and above.
o Under CL owner of land owns everything above and everything below.
o Airplane era: federal law cut off right of surface above.
o Area below: close enough to surface area would still be a trespass.
▪ Law has not changed
▪ Surface rights and mineral rights are separated on oil and mineral on the West side of the country.
▪ If neighbor has a will and pumps water into my land is not trespass as she is pumping on her land; if drill passes to my land- trespass.
▪ Surface owner has a right to subjacent lateral support (common law)

• Subjacent: landowner that caused the harm will have to pay for it.

• Lateral: must restore land in same conditions

a. Right to exclude
→Jacque v. Steenberg Homes (1997): π elderly couple who owns 170 acres of land. Δ sells mobile homes. Π neighbor bought a mobile home with delivery included. Δ determined the easiest way to deliver was to go across π land bc the alternative route was covered with snow + sharp curve [undesirable but possible]. Δ asked π permission several times but
π refused as they lost property before due to adverse possession, not possible in this case. Δ sold it anyways and ordered to cross π land & π called the police.

civil trespass: unprivileged [ consent from owner; 2. lacks necessity; 3. Not justified by public policy]
intentional [voluntary, may be a mistake] encroachment upon property owned by another nominal damages ($ awarded to π to show he was right but has suffered no significant loss) will support punitive damages (damages exceeding simple compensation and awarded to punish Δ; teach an example of Δ conduct) |
compensatory damages: awarded to benefit π and help him recover cost of the injury suffered. → punitive and compensatory do not have to differ. •

The individual & society are interest in deterring intentional trespass to land, thus punitive damages should be awarded even though compensatory damages are not claimed.
Essential bundle of rights: private land owner right to exclude others from his/her land has no effect if it is not protected.
Policy sent to allow punitive damages

Individual and public interest - if there is not enough protection, then anyone could go into anyone's land.
o Private interest
All of society is better off if people's property is protected - needs to punish wrongdoer.
IMPORTANT: social interest in legal system that creates a sense of security that everyone participates in.

→State v. Shack (1971): Tejeras, provides health services & Shack, attorney to give legal advice, entered the private property of Tedesco in order to give aid to migrant farm workers that were employed by T. The men were in T property but wanted privacy to meet with the migrant but T refused and summoned a state trooper & executed written complaint charging violation of trespass.

criminal trespass: Δ enters the land knowing that he lacks privilege to do so or Δ refuses to leave another's land after being asked to do so.
Tejeras has effectively conveyed to the migrant workers to habit the land. They are occupying the land and Tejeras have conveyed right to occupancy so migrants are lawfully there; right to exclude is limited by his own failure to exclude them so necessity that comes along while occupying the land they have a right.
Medical aid and attorney's right to come in the property are on the rights of migrants when they lawfully occupy the land so no trespass - landowner let people voluntarily occupy land as part of compensation to live there →
the right the workers have of being on the land is derivative of the right of the migrants.
Here, landowner gave up his right to land as compared to Jacque. Rights to property are negotiable and can be limited.
b. Right to transfers (sell- land or intangible property)

→Andrus v. Allard (1979): Allard sells Indian artifacts, many composed of feathers of protected birds under the Act but this artifacts existed before the Act came into force. Andrus, the secretary of interior issued regulations prohibiting commercial sale of birds -purpose was to protect the birds by destroying the market. Allard filed declaratory & injunctive relief alleging statutes do not apply to their property bc they obtained it before & are a violation of 5th amendment. Allard claims that government by passing such regulation is diminishing the value.

Π argue - difference in property they have as opposed to other animal parts. The statute passed after I got the bird parts & cannot take away rights - police power; no compensation.
Cannot tell the difference between new and old stuff - hard to regulate & should be treated as same = not taking away ability to make stuff but the ability to sell stuff.
c. Right to destroy

→Eyerman v. Mercantile Trust Co. (1975): Woodruff, owner of property in question, died and in her will directed the executor to raze the property and sell the land with proceedings going to the beneficiaries. The house is part of Kingsbury palace a private residential subdivision. The neighboring property owner and trustees of the subdivision filed for an injunction to stop the destruction of the house claiming it will diminish property value and would be against public policy.

Cause of action: right to destroy as an aspect of property rights.
Executor put in a weird spot as property would lose too much value.
Gated community - covenanted: takes title to land under a deed which states limits on the house); purpose is to keep poor people out, now - zoning (designate a specific are for use or development as a particular zone in planning) → court here does not mention covenant (which could govern the house and bar destruction) •

Court states that allowing destruction of property would be a nuisance (harm to neighbor property as value will decrease)
The only reason to grant her wish is bc it was her house; thus her decision balance with all other negative aspects that come with destruction the court did not grant her wishes.
d. Public trust & the public domain in land

→Mathews v. Bay Head Improvement Ass. (1984): Δ, a quasi-public entity, own portion of the beach. Only association members were allowed to use these potions of the beach & Δ only allowed Bay Head residents to become members. Nonresidents were not allowed & there were no public beaches; thus they were prohibited from using beaches in the town unless they knew a private beachfront owner.

Three categories of owners of dry sand

Municipality- cannot limit access. Public has access to dry sand beach owned by the municipality whether or not they are residents of that municipality. Equal access to land owned by sovereignty.
o Quasi-public association:
o Private owner
Public trust doctrine: principle that certain natural & cultural resources are preserved for public use, and that the government owns and must protect and maintain these resources for the public use.
o in order to walk into the wet sand and sea it is necessary to walk on dry sand.
o Court extended PTD where public has right to use dry sand own by QPA & private ownership (permit dry sand for yourself and leave a little for public to walk) PTD is satisfied as long as there is reasonable access to the sea.
Water- rights lie in the sovereign; accessible to all
Foreshore/wet sand- sovereign; accessible to all
Dry sand- rights disputed in this case.

→Armory v. Delamirie (1722): a boy found a jewel when sweeping a chimney which he took to Δ shop to know what it was. Δ returned the socket w.o. the stones.

Finder of jewel, does not acquire absolute ownership, but he can keep the property against all except the rightful owner
Spoliation of evidence (hidden, destroyed): unless Δ produce the jewel, then it should be presumed the value of the finest jewel as damages.
o Trover: money damages resulting from Δ wrongful taking of personal property

Replevin: recover personal property that was wrongfully taken or detained.
If Δ had purchased the jewels in good-faith then he could keep them if the owner appears.

→Hannah v. Peel (1945): in 38' major Peel was granted ownership of a house, no indication he ever lived on the house. In 40' π lived on the house & found a brooch embedded in a windowsill and reported it to the police who held the brooch for two years. No owner was found & police gave brooch to Δ, who sold it for 66L in 42'. There is no evidence that Δ had knowledge of the brooch; Δ offered money to π for it but π refused and maintain his right to the possession of the brooch against all persons other than owner, who was unknown. In 43' π sued for return of the brooch or for its value.

Police returned to Δ bc if true owner comes along asking for property he will look for the owner of the premises.
Bridges v. Hawkesworth affirmed the rule established by Armory "the finder if a lost article is entitle to it as against all persons except the real owner" •

S. Staffordshire Water Co. v. Sharman "if a man finds a thing as an agent or a servant of another, he finds it not for himself, but for that other" - where person has possession of house or land, with intention to exercise control over it and things which may be upon it, then if something is found on that land, whether by a employee or a stranger, the presumption is that the possession of that thing is in the owner of the locus in quo (the place in which)
o Man possess everything which is attached to or under his land

Man does not necessarily possess a thing which is lying unattached on the surface of his land even though the thing is possess by someone else.
o Here, it was clear the brooch was never Δ as he never occupied the property; thus the brooch was lost &
found by π → ct followed Bridges & ruled for π.

→Benjamin v. Linder Aviation (1995): SCB bought the plane and took it to Δ for inspection. π found over $18,000 in the wing of a plane when doing route annual inspection. The money was 30 years old and smelled rusty. The money was turned into the police. Π filed to claim ownership of the money. No one came forward as the true owner of the money within twelve months. DC held the money as mislaid and awarded it to Δ; π appeal as he was the finder and was entitled to 10% of lost property.

Classification of found property

Abandoned property: owner no longer wants to possess it & relinquishes all rights, title and interest in the property. Belongs to the finder against all other, including owner.
o Lost property: owner unintentionally and voluntarily parts with its possession and no longer knows where it is. belongs to the finder once statutory procedure are followed and owner makes no claims which puts time limit and extinguishes the rights of true owner (only to lost property).
o Mislaid property: voluntarily put in a certain place by the owner who then overlooks or forgets where the property is. finder acquires no rights; right of possession belongs to the owner of the premises upon which property was found against all persons other than the true owner.
o Treasure trove: coins or currency concealed by the owner, includes elements of antiquity. Property must have been hidden or concealed for such a length of time that the owner is probably dead or undiscoverable. Belongs to the finder against all but the true owner.
Here the money was mislaid - the place where the property is found is important as money was placed intentionally on the wing of the plane to hide it to retain ownership. For it to be lost must have been left there unintentionally and treasure trove is not old enough.
The bank as owner of the plane is entitled to the money against all but the true owner & π is not entitled to finder fee as the property was not lost.


CAO is ejectment, what we sue for & is plead in the complaint.
The COA accrued and did not abate and continued until the SOL expired → good title

Once SOL expired true owner cannot get trespasser of the land eject.
o If you come into title by AP the original owner will still be the original purchaser- needs to bring a claim to
▪ QUIET TITLE: process to establish a party's title to real property so AP can take it to house of title and get deed recorded stating you are the true owner- can sell property & buyer will be able to borrow money to buy it.
▪ Will get quiet title if ejectment coa is dismissed on basis of SOL expiration.
Authorization of being on the land prevents ejectment from accruing.
Ejection: common law v. eviction: statutory law to get someone out who has not paid rent.

Requirements of adverse possession: adverse possession is statutory and judge-made law

Actual entry - cause of action for trespass triggers the statute of limitation •

Exclusive possession - possession cannot be shared with the true owner or the general public
Open & notorious - adverse possessors entry & acts are such that would put the owner in notice. Test of notoriety is objective & requires constructive, not actual, notice.
o The sleeping principle: to penalize the negligent and dormant owner for sleeping upon his rights
Hostile & adverse possession (under claim of right) - "claim of right" claimant possession cannot be with the true owner's permission (permission gives the possessor a license- negates hostility)
o Views on the adversity requirement & the adverse possessor state of mind:
▪ The objective standard: State of mind of adverse possessor is irrelevant, all is needed is conduct.
→ rule follow by US.
▪ The good-faith standard: The required state of mind "I thought I own it" requires a good-faith claim.
▪ The aggressive trespass standard: Required state of mind is "I thought I didn't own it, but I
intended to make it mine"
Continues & uninterrupted - possession must be continuous for the statutory period, but not constant. Adverse possessor is permitted to come and go in the ordinary course. The true owner may interrupt the statute before it runs by bringing a successful ejectment action against adverse possessor or by re-entering the property -
possessor must start all over.

→Fulkerson v. Van Buren (1998): π held legal title to land. Church w.o. permission began using the church on the parcel
& over the years improved the property. Π sent letter to vacate the land but they did not & then π filed a complaint requesting ejection & counterclaim they own by AP, requesting to quiet title.

Nine years on the property - if coa accrued and did not abate = sol expire as it was for seven years.
AP cannot recognize the ownership right of the titleholder of the land - the church recognized it.
o Did it accrued? Received or accumulated a benefit in regular or increasing amounts over time.
o Did it abate? Lessen, reduce or remove

Did SOL expire? Yes 9 years on the property and 7 years to expire.

→Hollander v. World Mission Church (1998): church owner began dispute against adjoining property owner who mistakenly had used the land after a line of trees believing it was theirs

AP occupied and treated the lawn as if it was hers for more than 15 years (mowed, gardened, and maintained it)
for a continuous period of time, she walked across and used it as the owner would use a land of that type (backyard land- people use it eventually) in that place.

1. Mechanics of AP


Color of title - applies specifically in context of AP.
o Quit claim deed: describes the interest in property conveyed to another person.
o Title to the entire estate will be given to the AP if the TO is not in the property, even if AP was only using a small percentage of the property.
▪ Exception to the rule: TO is occupying a portion of the property and would have seen the AP but did not for some reason, then AP will get only the portion of land he is occupying.
Estoppel by deed - A does not own the property but gives B a quit claim deed to the property. Later, A inherits the property - the title to the property goes to B because A gave the deed to B, even though A gave the deed before he had ownership he is estopp to deny the deed.
o Needs to prove it happened in fact.
o Issue: issuer of the quit claim deed actually comes into title of the land.

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