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93 Cards in this Set

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Governing principle in the acquisition of property
First in time is first in right
What does "first in time is first in right" mean?
First person to take possession of a thing owns it; prior possessor prevails over a subsequent possessor.
Social policies supported by first in time is first in right
1. Rewarding Labor. 2. Protecting investment in resources. 3. Encouraging people to bargain with each other rather than fight.
What does the RULE OF CAPTURE apply to?
Primarily applies to wild animals, but also to oil and gas.
what kind of CAPTURE does POSSESSION require?
Possession requires actual physical capture. (Pierson v. Post)
Does HOT PURSUIT = CAPTURE?
No.
Define CAPTURE with respect to animals
CAPTURE = mortally wounding or trapping an animal so that capture is virtually certain.
What were the MAJORITY and DISSENT positions in PIERSON v. POST?
Majority: First possession, where possession = Intent + Control (actual physical capture). Dissent: Possession = Intent + Control ("reasonable prospect" of capture)
How did Post not have possession in PIERSON v. POST?
Post had the intent manifested to capture the fox, but never deprived the fox of its liberty, never brought it under control.
Alternate arguments in PIERSON v. POST that may have helped Post win
1. Post could have made the case about what kind of "unfair" competition amounts to infringement of property rights. 2. Bad Behavior: Pierson's behavior was harassment, against social norms, and improper, unwholesome behavior of social misconduct. 3. Bad Sportsmanship: Pierson ruined the sport by interrupting the pursuit and killing the fox. Discourages hungin and killing of nuisance wild animals. 4. Sports club's Custom: A "ready made rule for the court to follow. Argument against custom is ruling will apply beyond fox hunting.
PROS of CERTAIN RULES
1. Bodily seizure, capture, is more easily defined, more certain, than reasonable prospect. 2. Reduces amount of litigation. 3. Lowers transaction costs. 4. Creates certainty so people know where they stand and can make choices by evaluating their certain options. 5. Encourages investment.
CONS of CERTAIN RULES
1. Inflexible. 2. Simplistic, doesn’t take into account the complexities of real life, complex situations. 3. Static and unlikely to evolve with society.
PROS of REASONABLE RULES
1. Flexible like the common law. 2. Gives judges power to do justice.
CONS OF REASONABLE RULES
1. Unpredictable outcome. 2. Discourages investment. 3. Expensive to operate.
What are the EXCEPTIONS to the RULE OF CAPTURE?
1. Unfair Competition. 2: Customs aka Usage. 3: Nature; Kid follows the Dam
How does KEBBLE v. HICKERINGILL illustrate the UNFAIR COMPETITION: EXCEPTION TO THE RULE OF CAPTURE?
Property law implements Social Goals: Kebble won even though eh did not have possession like Post. Why? Because he was protecting the investment of property to achieve social goals. SOCIAL GOAL: people who furnish the market shouldn't be hampered. Kebble was trying to "feed" society by supplying the market with food. Post was thing to get rid of foxes. Different social goals.
Benefits of COMPETITION.
1. Fair competition encourages more people to participate. Doesn’t discourage competitors. 2. Doest rewired a defendant's vile unfair competition conduct. 3. Drives prices down. 4. Puts food on the table.
How does GHEN v. RICH illustrate the CUSTOMS AKA USAGE: EXCEPTION TO THE RULE OF CAPTURE?
Custom went against the actual physical capture rule in Pierson v. Post, yet the custom was upheld WHY? Given the nature of the industry, there was no more reasonable way to hunt the whales. Couldn't harpoon then drag the whale back (boats weren't strong enough), so only reasonable thing to do was to wait until they washed ashore.
Effect of the ruling in GHEN V. RICH
Ruling: the owner is the first problem lance successfully implanted in a whale, but must pay a finders fee to finder of whale when it washes ashore. EFFECT OF RULING: Whale had 2 owners--1. person who found the washed up whale and 2. person who threw the bomb lance.
The RISK of a rule that accommodates CURRENT TECHNOLOGY
1. Technology may make the rule obsolete; no longer useful. 2. Discourages industry from improving technology possibly stifling progress and innovation.
What and why do we have the NATURE: KID FOLLOWS THE DAM: EXCEPTION TO THE RULE OF CAPTURE?
The owner of the mother rowns the offspring of domestic animals. The kid follows the dam. REASONS: 1. Mother has the means to provide food and sustenance to the offspring. 2. Easier to determine who the mother is. 3. Every society follows this rule; indicates that its a good rule.
Define: TROVER
Common law action for MONEY DAMAGES resulting form the defendant's conversion to his own use of a chattel owned or possessed by the Plaintiff. MEASURE OF DAMAGES: Value of chattel at the time of conversion or value of the Plaintiff's interest.
Define: REPLEVIN
Lawsuit to obtain the RETURN OF THE GOODS and not money damages. 1. Plaintiffs possession must be lawful against the person who deprived him of it. 2. One who takes property from the possessor of another can only rebut this presumption by showing a superior title in himself, or in some way connecting himself with one who has.
Define: DAMAGES
Civil remedy for money. Damages are preferred when the thing has depreciated in value.
Define: INJUNCTION
Civil Remedy for Specific Performance. Specific performance is preferred: 1. Eliminates problem of double recovery, if the true owner does show up. 2. facilitates judicial efficiency. 3. court doesn’t need to determine valueation and risk being wrong. 4. when thing is unique, or if it has a unique value to plaintiff. 5. when thing has incread in value. 6. When theirs a risk of nonpayment of damages.
Policy goals of ACQUISITION BY FIND
1. returning item to true owner. 2. rewarding expectations. 3. Encouraging honesty. 4. Encouraging use of assets. 5. Living in a world of efficiency in settling disputes. 6. Living in a world of Certainty in settling disputes. 7. Preventing trespass. 8. Avoiding chaos and fighting. 9. Rewarding effort. 10. Rewarding luck.
General rule of ACQUISITION BY FIND
1. An Owner of property does not lose by title by losing the property. O's right persists even though the article has been lost or mislaid. 2. A finder has rights superior to everyone BUT THE TRUE OWNER. 3. Prior possessor wins over subsequent possessor, even if proper possessor secured such by theft or trespass.
Who is a TRUE OWNER?
TRUE OWNER: Person with PERFECT PAPER TITLE (sales receipt, titles, etc) & PERFECT POSSESSION, ability to exert physical control over the item.
Who wins over the Finder?
TRUE OWNER always wins over the FINDER
How does the PRIOR POSSESSOR win over the SUBSEQUENT POSSESSORY in ARMORY V. DELAMIRIE
boy find jewelry to bring to goldsmith for appraisal case. 1. boys title was good against the whole world, EXCEPT any PRIOR POSSESSOR and the TRUE OWNER. 2. Courts ruling protected the Boy and punished the wrong doing.
What roles did the boy in ARMORY V. DELAMIRIE serve?
1. BAILOR; bailments are a useful social practice. 2. FINDERS: reward finders labor, protect finders luck. Encourage finder to use found goods and bring them forth for possible recovery. 3. STAND IN FOR THE TRUE OWNER: Protect expectations. NOTE: in protecting possessors, we are protecting true owners because it maeks it more liley for ture owner to recover. Even if they boy had stolen the jewelry, his claims were still superior to goldsmiths. First in teim is first in right.
Define: BAILMENT
Rightful possession of goods by a person (the BAILEE) who is not the owner.
Define: VOLUNTARY BAILMENT
VOLUNTARY BAILMENT: occurs when the owner of the goods (the bailor) gives possession to the bailee, eg leaving your clothes with Laundromat or checking coat at restaurant.
Define: INVOLUNTARY BAILMENT
INVOLUNTARY BAILMENT: is when something is found. Finder takes on obligation as a bailee, obligation today is an ordinary negligence standard of reasonable care under the circumstances.
How the OWNER OF LOCUS IN QUO can trump the rights of the FINDER
OWNER OF LOCUS can be in ACTUAL, or more usually, CONSTRUCTIVE PRIOR POSSESSION to objects attached to or under that land, even if they didn't know the object existed.
Define: CONSTRUCTIVE POSSESSION:
CONSTRUCTIVE POSSESSION: title is relative. Possession means different things in different contexts and in different courses. CONSTRUCTIVE anything is a judicial tool used to reach the desired result.
what happens when FINDER IS EMPLOYEE OF OWNER?
OWNER WINS. Owner usually recovers because the employee is seen to ACT FOR employer-owner and employee is working under a CONTRACTUAL DUTY to report the object to employee-owner.
what happens when FINDER IS TRESPASSER?
OWNER WINS. If H was a trespasser, as opposed to a licensee of a tenant, court would find P was in constructive possession. Court does not want to reward or encourage trespass.
what happens when OBJECT IS EMBEDDED IN LAND?
OWNER WINS.
what happens when OBJECT IS MISLAID
OWNER [of shop where it was found] WINS
Why does the OWNER WIN WHEN THE OBJECT IS MISLAID in MCAVOY V. MEDINA?
Object, pocketbook w/money, found t barber shop and on the table. Finder finds it and asks shopkeeper to advertise to find true owner. True owner never shows up. SHOPKEEPER INS BECAUSE OBJECT WAS MISLAID, NOT LOST. Keeps it closer to the true owner.
what happens when OWNER DOESN’T HAVE POSSESSION OF LOCUS IN QUO AND OBJECT UNATTACHED TO LAND?
FINDER WINS.
why does FINDER WINS IF OWNER DOESN’T HAVE POSSESSION OF LOCUS IN QUO AND OBJECT UNATTACHED TO LAND in HANNA V. PEEL?
P, owner of lucs in quo, who has never entered premises is not prior possessor of lost property not attached ot the soila as against a licensee of a tenant, H. There was no prior possession of brooch in P: Possession = Intent + Control. INTENT: P didn't know about the brooch, so couldn't have intent. CONTROL: P never took physical control of the premises.
what happens when OBJECT IS LOST PROPERTY?
FINDER WINS. Example: customer picks up small parcel lying on the floor. Finder wins because lost property goes to finder.
PROBLEMS of AWARDING FINDER
Puts object one more person farther from true owner. Encourages lying (stuff on floor instead of table?)
who owns ABANDONED PROPERTY?
ABANDONED PROPERTY: TRUE OWNER gives up TITLE and POSSESSION, intentionally parts with object and relinquishes claims of ownership. FINDER BECOMES THE TRUE OWNER.
Define: LOST PROPERTY
LOST: Owner unknowingly and unintentionally parted with object.
Define: MISLAID PROPERTY
MISLAID: owner left thing behind and forgot it; purposely put down, but forgot. BAILMENT ASPECT TO MISLAID: when person puts down the wallet, ship-owner assumes a "bailee-like" relationship.
Common law [cause of] action for: TRESPASS
Trover, action for money damages for real property.
Common law [cause of] action for: EJECTMENT
Replevin, action for specific performance, for real property. Cause of action to recover possession.
ELEMENTS for ADVERSE POSSESSION
(After statute of limitations has run) 1. Actual & Exclusive; 2. Open & Notorious; 3. Adverse (JX: Hostile, Good Faith) & Under Claim of Right; 4. Continuous
Define: ACTUAL & EXCLUSIVE actual definition [AP]
Actual physical occupation, as an owner would occupy. PURPOSE: To trigger the SOL; to show the extent of the claim.
Define: ACTUAL & EXCLUSIVE exclusive definition [AP]
Not shared -- not shared with owner, not shared w/other non-claimants. PURPOSE: Trigger SOL; to show claim has substance, not trivial.
Define: OPEN & NOTORIOUS [AP]
Example: Large Casino or Fortress; Obvious. PURPOSE: To inform owner; to put owner on notice.
Define: ADVERSE & UNDER CLAIM OF RIGHT [AP] (with subjective and objective tests)
DEFINITION: Not subordinate not permissive; OBJECTIVE TEST: Adverse possessor's state of mind is irrelevant (purpose: to protect owner, so that they aren't lulled into thinking that they don’t have a claim). SUBJECTIVE: Others see a different, deeper purpose. So, they added subjective test of what is inside AP's head.
Define: HOSTILE & UNDER CLAIM OF RIGHT [AP]
Some courts use Hostile instead of Adverse. AP must be truly hostile and have intent to dispossess.
Define: GOOD FAITH & UNDER CLAIM OF RIGHT [AP]
Rare, but some courts require subjective Good Faith, which means AP must in her head believe that property belonged to her. DOBRIS DOES NOT LIKE MAKING A GOOD FAITH REQUIREMENT BECAUSE 1. Subjectivity breeds uncertainty; 2. Judicially inefficient; 3. Encourages lying.
Define: CONTINUOUS [AP]
Definition: Unbroken, as an owner would act. PURPOSE: protect the owner. EXAMPLES: Seasonal use, e.g. every summer. HOWARD V. KUNTO.
which element of AP is a SLIPPERY ELEMENT?
CONTINUOUS.
PROS of SLIPPERY ELEMENTS
1. Allows flexibility; 2. Provides useful tools that can be used to reach just outcomes;
CONS of SLIPPERY OUTCOMES
1. Unpredicictable. Therefore, more litigation is required; 2. Litigation is expensive for the parties, for society; 3. Places premium on lawyers that can predict outcome correctly; 4. Inefficient.
PURPOSE of AP Elements
1. Provides additional protections to true owner; 2. focuses on legal system; 3. Courts don’t want to make a mistake when taking someone's property. 4. Courts want to be fair and appear fair to soccdciety. Fairness -->Provides peace and order; people will respect system that is fair.
Define: COLOR OF TITLE
1. Defective written instrument; 2. Appearance of title, semblance of title, but not always actual title, e.g. sometimes a sheriff's deed; 3. Sometimes used to adversely possess, e.g. under a good faith claim b/c you had a piece of paper that said you owned it.
how do DIFFERENT STATES apply COLOR OF TITLE?
Many states use this doctrine and some even require it, if AP is going to succeed.
PROS of COLOR OF TITLE
1. Color of title used to be good for absentee oture owners that had large tracts of land, i.e. RRs; 2 Less litigation; 3. If you are an absentee owner, you don’t have to spend lots of $$ on security and monitoring; 4. USUALLY HELPS AP by facing lower hurdles under the doctrine of AP.
COMPONENTS [procedure to achieve] of ADVERSE POSSESSION
1. Running of State of Limitations; 2. Cancellation of True Owner's Title; 3. Recognition of a new, original title in the AP; 4. Judge's creation of laws on running of statue of limitations that gave us the elements of the doctrine of adverse possession.
PROS of ADVERSE POSSESSION
1. Encourages the use of a property by the AP; 2. Rewards labor of AP; 3. Discourages sharing, concentrates ownership in one person; 4. Protects the reliance, expectations of the AP; 5. Discourages laziness of the owner 6. Reduces chaos; 7. Theoretically, ridicules the number of litigations because of SOL. 8. Encourages people to check their land. 9. Encourages maximum utilization of land.
CONS of ADVERSE POSSESSION.
1. Injustice against the title owner. 2. Demoralizing for paper owner; 3. Rewards non optimal behavior. 4. Protects conduct that is imperfect, unattractive. 5. Presses for premature development, because there's logic to developing to show possession. 6. Works against some people's desire to preserve resources for future use. No preserving for environmental purposes, etc.
Why SOCIETY is ANTI-STALE CLAIMS.
1. Promotes uncertainty; leaves title to land open and prevents it from migrating to its highest and best use. 2. Evidence decays making it harder to prove the case. 3. Wastes judicial resources when we litigate stale clams because it takes longer, is harder to litigate, is more likely of getting smaller by right, etc.
WHY did the VAN VALKENBURGH V. LUTZ case come out WRONG?
1. Court found no actual possession where there was, and 2. Court ignored or didn't analyze the SOL.
HOW were the ELEMENTS in VAN VALKENBURGH V. LUTZ SATISFIED?
1. ACTUAL & EXCLUSIVE: although the court thought that the elements were unsatisfied under the NY states, Dobris thinks that there was an INCLSURE: Property bound by travel way and "fence" of logs and brush. Cultivation: Gardening supporting the entire Lutz family IMPROVEMENT where clearing the land and they farmed it. 2. OPEN AND NOTORIOUS where the garage encroachment extended a few inches over the boundary line. 3. ADVERSE & UNDER CLAIM OF RIGHT Lutz had already secured a new, original title by AP which couldn't be conveyed orally. 4. CONTINUOUS.
What did each side in VV V. LUTZ say about the PAPER TITLE
1. VV would say that he bought a paper title and therefore he was the were if the locus in quo. 2. Lutz would say that VV bought a piece of paper. Lutz would say he used land as an owner would and under adverse possession, he has a new, oringail title, since 1935
How could one argue in VV V. LUTZ that VV'S TAX TITLE isn't worthy of the protection given by the doctrine of AP?
1. Tax title is not a very good title since it is not a paper title; 2. VV bought the title to eject L for spiteful revenge.
Define: TACKING
TACKING: Connection of one AP to another's AP; Connecting inchoate (incomplete) AP title to another inchoate AP title in the process of being built. Requires privity.
Define: PRIVITY in the ABSTRACT
1. COURT: any connection; 2. DOBRIS: Any reasonable connection.
Define: PRIVITY in the TRADITIONAL way
Evidence of pointing out to the grantees [Howard v. Kunto]
What does PRIVITY have to do with the TACKING of an INCHOATE TITLE?
Cant tack w/o privity. If theirs going to be a transfer with tacking, there has to be privity, a connection between 1st owner of an incomplete title and 2nd owner. 2. If the 1st AP has not perfected an AP title and transfers it to a 2nd AP, there has to be a connection, privity, between 1 & 2 for tacking to occur. ANALOGY: "tacks," hence tacking, alone is not aren't strong enough to hold 2 inchoate titles together w/o "glue," privity.
What is the only DISABILITY that is recognized for TOLLING?
the disability of an owner at the time the AP begins.
SOCIAL POLICY for DISABILITIES
A just society doesn’t take property away from minors, mentally ill people, prisoners and the like w/o giving them a break --> Tolling…… We punish landowners who sleep on their rights, but tolling protects those who may involuntarily be sleeping on their rights. Note that tolling doesn't recognize all disabilities so AP wont have to wait indefinitely.
Elements of INTER VIVOS GIFTS OF PERSONALITY
1. Intent; 2. Delivery (2 ways) 3. Acceptance.
GENERAL RULE for DELIVERY [inter vivos gifts of personality]
GENERAL RULE: If an object can be handed over, then it MUST be handed over if the gift is to be seen as complete.
2 WAYS of DELIVERY [inter vivos gifts of personality]
1) Deed the chattel; 2. Delivery of the thing, the chattel (3 kinds) ACTUAL, SYMBOLIC, CONSTRUCTIVE
3 KINDS of DELIVERY of the chattel.
Delivery of the thing, the chattel (3 kinds) 1. ACTUAL: Manual transfer; hand to hand;2. SYMBOLIC a symbol is a sign by one knows or infers a thing; an emblem. Types a drawing, a miniature thing. 3. CONSTRUCTIVE: Deemed to be, construed to be by the law. Usually means the access to the thing. Ie a key to a safe deposit box, a map to the treasure, etc.
WHY do we require DELIVERY?
1. We want the donor to experience the ritual "wrench," tug at the heart or purse strings, to feel the burn. 2. Protects the donor form being misunderstood. 3. Serves a legal purpose, gives us evidence, so if theirs a dispute, the court's business can be done efficiently; requiring the creation of useful evidence.
Define: GIFT CAUSA MORTIS
A GIFT CAUSA MORTIS is a gift given in contemplation of death.
WHY are COURTS HOSTILE to GIFT CAUSA MORTIS
1. It’s a relic from long ago. 2. comes too close to being a will. Courts feel that tif your going to do will, do a will. 3. Comes too close to being an oral will, and there's no such thing as an oral will.
ELEMENTS of GIFT CAUSA MORTIS
1. INTENT + CONTEMPLATION OF DEATH. 2; DELIVERY (the same as for inter vivos) actual is preferred, but courts will begrudgingly allow constructive delivery. 3. ACCEPTANCE
CRUCIAL DIFFERENCES between GIFT INTER VIVOS v. GIFT CAUSA MORTIS
1. Both can be made in contemplation of death. 2. Gifts CAUSA MORTIS is revocable, but becomes irrevocable after death. Whereas, gifts INTER VIVOS are irrevocable. 3. Gifts CAUSA MORTIS are not presided over by lawyers or prived by lawyers, invented on the spot by laypeople. Courts don't seem to like that.
WHY did the girl lose in NEWMAN V. BOST?
The court was SEXIST (they give her the bureau as a female thing but not the will inside), CLASSIST (they referred to each other as LORD when that’s impossible isnce US donet have lords. Probably limited respect for women of a lower social class) AND JUDGMENTAL (they wanted to punish the hussie)
WHY did the girl lose the piano in NEWMAN V. BOST?
1. INTENT: Yes, v called it "Miss Julia's piano"; 2. DELIVERY: No actual delivery, piano was in V's parlor; no symbolic delivery, no ceremony; No constructive delivery. ACCEPTANCE? Yes.
WHY did the girl win the bedroom furniture in NEWMAN V. BOST?
1.INTENT yes, V bought it and put it in her room. 2. DELIVERY? Yes, manual delivery 3. ACCEPTANCE yes.
WHY did the girl lose the life insurance policy in NEWMAN V. BOST?
1. INTENT? Most likely les, but we don’t know for sure. 2. DELIVERY? No. What can be handed over MUST be handed over; 3. ACCEPTANCE? Yes.
WHICH gifts in NEWMAN V. BOST were gifts INTER VIVOS and gifts CAUSA MORTIS? (Piano, Bedroom furniture, life insurance policy)
GIFTS INTER VIVOS: Piano, Bedroom furniture. GIFTS CAUSA MORTIS: Life insurance policy.