Wild Animal Cases (First in Time)

Pierson v. Post: (Fox pursuit v. Fox Capture)

RULE: Pursuit alone not enough to acquire title. Pursuit + Mortal
Wounding=Owner
POLICY: A court cannot objectively create rules for pursuit due
to the extended periods of pursuit that could be claimed upon an
animal.
Ghen v. Rich: (The Whale Hunting Case)
RULE: Custom recognized as basis for property right when: (1)
its application is limited to those working in the industry (2) custom
is recognized by whole industry (3) requires of the first taker the
only possible act of appropriation (4) necessary to survival of
industry (5) and works well in practice
RULE #2: Custom is bad when: (1) formulated for the benefit of
the industry but not society as a whole (2) may be dangerous to
those employed in the industry (3) wasteful of a resource (i.e., the
whales that floated out to sea and weren?t recovered)
Subsequent in Time Cases (Acquisition by Find)
Armory v. Delamirie (Finders Keepers of Jewel in Chimney)
RULE: Prior possessor has a right to the property against all the
world but the rightful owner. --> Finder's Keepers
POLICY:
Hannah v. Peel (Lost Brooch Case)
RULE: First finders claim is good against the subsequent finder.
RULE #2: A person possesses everything attached to or under
his land.
RULE #3: A person does not necessarily possess everything that
is unattached to the land.
POLICY: Will the true owner come along? We want to try to help
rightful owners and promote the way that will return the property.
POLICY #2: Will the finder disclose the find? We want to make
policies that encourage the finder to disclose the find, that is why
the finder takes if the true owner doesn?t come along.
McAvoy v. Medina (Finders Not Always Keepers -->Mislaid
Wallet)
RULE: Finder doesn?t get possession when Iiem isn?t lost but
misplaced
POLICY: The wallet on table is not to be treated as lost property.
This property was voluntarily placed on the table in D?s shop. It is
mislaid property which is an exception to the finder?s keepers rule.
Lost vs. Mislaid Cases (Finder's Rules)
Hannah (brooch on house window)
Site owner v. Finder
Reasoning: Person does not possess everything that is
unattached to land.
Bridges (wallet on the ground in a shop)
Site owner v. Finder
Reasoning: Like Armory. The fact that it was on the ground gives
evidence that the property is lost and it's hard to say it will end up
with the true owner now that the property is lost.
Sharman (rings in the mud of a pool)
Site owner v. Finder
Reasoning: Finder was hired by site owner- at direction of site
owner
Elwes (boat in the ground)
Site owner v. Finder
Reasoning: Gas company hired by site owner
McAvoy (wallet on a table of a shop)
Site owner v. Finder
Reasoning: Fact on table is evidence of mislaid and owner will
likely try to get it back by retracing steps
Adverse Possession Cases
Van Valkenburgh v. Lutz (Adverse Possession of neigboring lot)
RULE: Actual and exclusive possession is required to start the
clock of adverse possession.
RULE #2: Until an adverse possessor is actually on property, he
or she cannot be making productive use of the property.
RULE #3: Actual occupation of the property during the statutory
period must be clear and convincing to acquire title by adverse
possession.
Manillo v. Gorski (The Encroaching Stairs Case)
RULE: Small Encroachments are not candidates for adverse
possession
RULE #2: Adverse Possession must be open.
POLICY: There is no notice given to the true owner by just
possessing the small encroachments.
Howard v. Kunto (Wrong Deeds Summer Home AP)
RULE: To constitute adverse possession, there must be actual
possession which is uninterrupted, open and notorious, hostile and
exclusive, and under a claim of right made in good faith for the
statutory period.
RULE #2: It is not necessary that the land is occupied
continuously as long as the land is occupied for a portion of the
year and there is no break in the possession.
RULE #3: Tacking is appropriate from the predecessor if the
property was intended to be added to the deed and be a part of the
sale.
O'Keefe v. Snyder (Stolen Painting Good Faith Purchase AP)
RULE: The statute of limitations for a claim of adverse
possession begins when the original owner discovers the
dispossession. (Discovery Rule)
POLICY: Principle for equity, the purpose of which is to mitigate
unjust results that otherwise might flow from strict adherence to the
rule of law.

Acquisition by Gift Cases

Gruen v. Gruen (Giving Painting to son after death)
RULE: As long as the evidence establishes an intent to make a
present and irrevocable transfer of title or the right of ownership,
there is a present transfer of some interest and the gift is effective
immediately.
Right to Exclude Cases
Jacque: (Mobile Home crossing land Punitive Damages Trespass)
RULE: With regards to intentional trespassing of land, there
need not be compensatory damages to have punitive damages.
POLICY: Every landowner has the constitutional right to
exclusive enjoyment of his own property for any purpose which
does not invade the rights of another person.
State v. Shack: (Migrant Worker's Rights Trespass Exception)
RULE: Property rights cannot include dominion over the destiny
of persons the owner permits to come upon the premises
POLICY: Human rights trumps property rights

Some of the sticks in the Bundle

Right to exclude: right to exclude others from
use or occupancy of a certain ?thing? (limits)
Right to transfer: right to transfer the holder?s
property rights to others (limits)
Right to possess and use: right to use land
how you want (can be restrained)
Acquisition by Capture (Wild Animals)
1. Must have actual possession, or else
constructive possession by inflicting a mortal
wound; pursuit does not vest title.
2. First person to capture or kill gains title.
(formalist approach)
3. Pierson recognizes a hunter who actually
kills or captures a wild animal, and
immediately has possession of it, acquires
title. It also suggests that the mortal wounding
of an animal ?by one not abandoning his
pursuit? may constitute capture.

Lost Property Rules

1. Title goes to the finder (finder has title over the
whole world but the owner)
2. Lost property goes to the finder because there
is less likelihood that the true owner will approach
the site owner seeking to reclaim the lost property.
Example: Because the wallet was found on the
floor (and not on a stand), it is considered lost
property. (Bridges)
Mislaid Property Rules
1. Title goes to the site owner (best chance of
being recovered by true owner) Exception to
Finder?s Keeper?s Rule.
2. The finder of mislaid property acquires no rights
in that property, rather the site owner retains
possession over all but the true owner. (McAvoy)
Example: If wallet found on stand, then mislaid.

Adverse Possession Overview

Definition: Adverse possession is essentially the
acquisition of title by theft. It is meant to reward
First in Time
individuals who are making use of property that is
1. Ownership is title, legal right to property
not otherwise being made productive by true
2. Possession is proved by showing physical
owners.
control and the intent to exclude. (possession
Rule: In order to establish adverse possession, an
is easier to prove than ownership)
adverse possessor must possess another?s real
property (a) actually and exclusively, (b) openly,
Possession
1. Physical control and intent to exclude others visibly, and notoriously, (c) hostilely, (d)
continuously, and (e) for a long enough period to
2. Conclusion by a court that person is in
possession, ought to be treated as possessor satisfy the relevant statute.
Policy: AP seeks to reward individuals who are
3. Distinguished from ownership- owner has
making productive use of property by removing
?title? usually proved by document signed by
title from title holders who are sleeping on their
previous owner or 1st possessor transferring
rights by both not being productive with their
title to present owner.
4. Constructive Possession - law treats person property and not acting to eject trespassers (the
adverse possessor). In addition, AP helps ensure
as possessor though he is not, or is unaware
that the reality on the ground is reflected in the
that he is.
actual holding of title.
Possession of Wild Animals
***If a landowner does not bring action to eject an
1. Must deprive animal of its natural liberty
adverse possessor within the statutory period, the
2. Corporeal possession
owner is thereafter barred from bringing an
a. Capture must be virtually complete, slight ejectment action.
possibility of escape allowed
***A way of transferring land interest from one
b. Must use reasonable precaution against
owner to another without the consent of the first
escape.
owner.
3. Mortal wounding
Actual and Exclusive Possession
a. Mere pursuit is not enough - (Pierson)
1. Actual and exclusive possession is required to
b. Subject to trade custom - (Ghen)
start the clock of adverse possession. Until an
Wild Animal Escape
adverse possessor is actually on property, he or
1. Finder?s ownership is extinguished when
she cannot be making productive use of the
wild animal escapes
property.
2. If animal is domestic or native, then
2. Actual occupation of the property during the
ownership is not extinguished
statutory period must be clear and convincing to
3. If animal has marking, ownership is not
acquire title by adverse possession. Van
extinguished.
Valkenburgh v. Lutz
->Wild animals with a habit of returning3. You have to actually possess in same manner
animals continue to belong to the capture
as true owner (Actual), and not at the same time
while they roam at large.
as the true owner (Exclusive) ? Majority Approach
->Escaped wild animals- the captor loses
->Triggers the start of the adverse possession
possession of these animals if they do not
clock
have a habit of returning.
4. Minority Approach claimant must cultivate,
Acquisition First-in-Time Rule Approaches improve, enclose, etc
Future Interest Cases
1. Labor Theory ? we want to reward the
Broadway National Bank v. Adams (Spendthrift with debts)
Open, Visible, and Notorious Possession
person who does the work.
RULE: Trusts created as life estates are not subject to the
1. Open, visible and notorious possession is
2. Possession theory ? I?ve got it, it?s mine.
common law rule that property cannot be granted passed along
required to put the true owner on notice that
First person to take occupancy or possession
with a condition that it not be alienated.
another individual is possessing his or her
owns it.
property. Without notice, the true owner cannot be
Co-Ownership and Marital Interest Cases
3. It?s my land/site theory
said to have slept on his or her rights in failing to
Riddle v. Harmon
4. Labor + pursuit theory ? People are entitled eject the trespassing adverse possessor.
RULE: A joint tenant may terminate a joint tenancy by conveying to the property produced by their labor.
2. Can?t be sneaky and do hidden activities. Make
his or her interest in the property, with or without the knowledge of
5. Custom Theory: whatever the area?s custom certain the true owner has notice that his property
the other tenant(s), to another party.
is the rule (Ghen)
has been invaded.
Delfino v. Vealencis
3. Also meant to trigger the start of the clock, but
Acquisition by Find Goals
RULE: When dividing jointly held property, a partition in kind is
for a different reason: unless you are open and
1. Get property back to the rightful
favored over a partition by sale.
visibly there, must be able to be seen by the true
owner? ?Return to True Owner?
Spiller v. Mackereth (Ouster)
owner
2. Reward finder/honesty
RULE: To qualify for ouster, there must be a demand for use by a
4. Possessor?s Burden to Make Possession Open:
3. Ensure property?s use ? productivity
cotenant that is denied by another cotenant
Puts the burden on the possessor to know it and
4. Predictability ? want people to know what?s
Swartzbaugh v. Sampson
put the owner on notice or if the possessor
going to happen and what to do
RULE: A joint tenant may, without the consent of his cotenant,
trespasses accidentally, then the possessor risks
5. Don't want finder to just keep the item
convey or burden his share of the property only to the extent of his
losing his/her improvement.
Acquisition by Find Rules
interest in the property.
?Hostile? or ?Adverse? Possession Under
Sawada v. Endo (Car accident, after judgment, property conveyed 1. The finder of property, though he does not
?Claim of Right?
acquire absolute ownership, may keep it
to sons)
Broad Rule: Hostile possession is required in
against all but the rightful owner. Armory v.
RULE: The interest of a husband or wife in a tenancy by the
order
to
ensure
that
a true owner is not lulled into
entirety is not subject to the claims of his or her individual creditors Delamirie
losing his or her property to an adverse possessor
2. Finder has possession and title over
during the joint lives of the spouses.
who
was
present
with
permission.
everyone but the true owner. Hannah v. Peel
RULE #2: Creditors may reach any assets that a debtor can
Claim of Right ? There to assure that you are not
3. The finder of mislaid property acquires no
voluntarily assign
there
with
the
permission
of the true owner ? long
rights in that property, rather the site owner
RULE #3: Creditors cannot recover from the tenancy on the
retains possession over all but the true owner. term tenant cannot be an adverse possessor bc he
entirety because the debt is the individuals and not the units.
has
permission
by
owner
McAvoy v. Medina
POLICY: Protect the family unit and the family domicile in
particular.
Classifications of
Lost property goes to
Jurisdictional Approaches to Hostility
In re Marriage of Graham (Is education marital property?)
Found Property
the finder, and
1. Objective Test ? ?Actions?
RULE: Most jurisdictions refuse to recognize degrees or licenses 1. Lost Property
mislaid property goes 2. Good Faith - Subjective Test
as marital property
2. Mislaid Property
to the siteowner
2. Intent to Take ?Opposite of Good Faith?
Possessory Estates Cases
White v. Brown ("to Evelyn to be lived in and not to be sold")
RULE: Grantor or testator conveys her full interest in the
property unless the intent to pass a lesser estate is clearly
expressed or necessarily implied by the terms of the deed or will.
POLICY: Grantor's intent
Baker v. Weedon ((Economic Waste Case) Old Lady whose step
grandchildren wanted to sell her land.)
RULE: A court of equity has the power to order a judicial sale of
land affected with a future interest and an investment of the
proceeds where this is necessary for the preservation of all
interests in the land.
RULE #2: When the court orders a sale of land, the proceeds of
the sale are held in a judicially created trust.
RULE #3: The beneficiaries of the trust are the persons who held
interests in the land, and the beneficial interests are of the same
character as the legal interests which they formally held in the land.
RULE #4: The court has jurisdiction to order the sale of land to
prevent waste.
RULE #5: Such a sale would be proper if ?necessary for the best
interest of all the parties.? (most jurisdictions have adopted)
Mahrenholz v. County Board of School Trustees ("For School
Purposes Only)
RULE: The type of interest held governs the mode of
reinvestment with title if reinvestment is to occur.
RULE #2: If the grantor had a possibility of reverter, he or his
heirs become the owner of the property by operation of law as
soon as the condition is broken.
RULE #3: If he has a right of re-entry for the condition broke, he
or his heirs become the owner of the property only after they act to
retake the property.
RULE #4: Upon a grant of exclusive use followed by an express
provision for reverter when that use ceases, courts have agreed
that a fee simple determinable, rather than a fee simple subject to
a condition subsequent is created.
Mountain Brow Lodge v. Toscano (Restraint on alienation in the
conveyance)
RULE: When real property is conveyed between parties, any
limitation on the grantee?s rights to alienate the property is void as
a matter of public policy, but, limitations on the acceptable uses of
the property by the grantee are enforceable.
POLICY: Alienation restraints are bad, usage restraints are okay

Fi r s t i n Ti me

Ac q u i s i t i o n by Fi nd Adv e r s e po s s e s s i o n

Ac q u i s i t i o n by g i f t

Co l o r Ke y

Long Enough (Statutorily provided amount of time)

Fu t u r e i nt e r e s t s
Co -Ow ne r s hi p & Mar i t al I nt e r e s t s
1. Statutes require possession to be a certain length of time before AP can be achieved. Po s s e s s o r y e s t at e s
Policy: This is needed because although adverse possession seeks to reward productive use of property, it does so by having true owners forfeit their property; as a matter of policy and stability, that forfeiture should not happen too fast.

Objective Test - Actions

Rule: does not look into adverse
possessor?s state of mind, but rather
looks to the possessors objective acts
to determine if they are the acts of a
fee simple holder.
1. State of mind is not a factor; Actions
must appear to be that of an owner.
(Majority Approach) ? Reflects reality.
2. You can do it by accident or
intentionally.
Subjective Test - Good Faith
Rule: requires that an adverse
possessor be unaware that the
property being possessed belongs to
someone else
POLICY: A good faith jurisdiction
rewards the accidental adverse
possessor in the name of fairness.
->Under GF, claiming not to own the
land defeats the hostile element.
Valkenburgh v. Lutz
->Minority Approach Rationale:
Protect accidental encroacher. Look at
GORSKI ?Stair? case
Policy flipside: Do not want to reward
a thief.
Intent to Take ?Opposite of Good
Faith?
Rule: Which requires that an adverse
possessor be aware that the property
being belongs to someone else
POLICY: An intent to take jurisdiction
rewards the aggressive adverse
possessor in the name of productivity.
->Know that the land is not yours
->Subjectively intend to take title from
the true owner
Boundary Disputes ?Mistake
Boundaries?
1. Majority: Objective Test Connecticut
Doctrine. non permissive plus exert
right to exclude with intent to take.
2. Minority: ?Maine doctrine? A.P. must
intend to claim title to all the land up to
a specific line whether or not it is the
true boundary.
Continuous, Uninterrupted
Possession
Rule: Possession must be continuous
in order to give the true owner the
maximum possible notice that his or
her rights are being possessed by
another. If possession were not
required to be continuous, then
adverse possessors could come and
go and true owners may never be
aware that they had a cause of action
to eject the trespasser.
Rule: Continuous possession does
not require permanent 24/7
possession, but rather requires
possession in the manner of a usual
owner of similar property. Howard v.
Kunto
->Ought to be there and behaving like
a typical owner would
->Seasonal Use (Can be considered
A.P. if this is the same as avg. user)
->Abandonment (Intentional
Abandonment - A.P. is broken)
->Interruption by True Owner (If the
owner interrupts the A.P. by reentering
with intent of regaining possession,
continuity is broken. Obj. test used.)
Exception: Tacking
1. Continuous possession established
by tacking periods of possession by
predecessors in interest ? voluntarily
giving this interest.
2. Successive periods of adverse
possession by different persons may
sometime be combined together to
satisfy the statutory duration
requirement. Tacking is permissible
only if the people are in privity with
each other (by deed). Howard v. Kunto
Privity: a relationship between the 2
parties adversly possessing land.
Policy for Adverse Possession
Doctrine
1. Stability ? Sleeping Theory
a. We have adverse possession in
order to punish land owners for not
doing anything with their land
(sleeping on rights)
2. Productivity ? Earning Theory
a. award people for productivity
3. Quiet title, but not too quickly.

Adverse Possession of Chattels

-> Open and notorious rule is harder to satisfy
Replevin: an action for the repossession of personal property wrongfully
taken or detained by the defendant, whereby the plaintiff gives security for
and holds the property until the court decides who owns it
Majority of states: statute of limitations starts when the adverse
possessor obtains possession of chattel. Unlike in Okeefe that starts upon
discovery
Rule: The statute of limitations for a claim of adverse possession begins
when the original owner discovers the dispossession. O?Keefe v. Snyder
Discovery Rule: a limitations period does not begin to run until the plaintiff
discovers (or reasonably should have discovered) the location of the
chattel
Jurisdictional Approaches to Starting the Adverse Possession Clock
1. Discovery of the current possessor
Exceptions to AP
2. Discovery of the loss of the chattel
1. Government
3. The loss itself
2. Extended for
4. Current possessor locates the true owner
certain disabilities,
5. Date of public display
presence of children,
6. Current possessor refuses to return to true owner
insanity, and
7. Current possessor goes public
imprisoned. Up to 10
8. Date true owner stops diligently searching
years
9. Discovery of the chattel
Acquisition by Gift
-> 2 parts to complete an acquisition
by gift: acquisition of title and
conveyance of title
INTENT+DELIVERY+ACCEPTANCE

Acceptance by donee
1. Person receiving the gift must
accept
2. Assumed in most cases where
there is a gift that has some value

Delivery to the donee

1. Actual: Actually handing over of the object.
2. Constructive: Handing over a key or some object that will open up
access to the subject matter of the gift. Haven?t given the object, but have
given the key to get the object.
3. Symbolic: Handing over something symbolic of the property given. Given
something which is NOT the actual gift, but symbolic of the gift. i.e. letter.
***Actual delivery is not required***
Purpose(s) of Delivery Requirement: Emphasizes the feeling of giving it
away. Proof of intent. A way of showing without any question that there was
intent to give the item. Prima facie proof that there was a gift. A way of
protecting the donee.
Intent of the Donor
Two Distinct Present Ownership Sticks 1. May be explicit or implied
2.
May
be shown by oral
1. Title: Present and Future right
evidence
2. Possession: Present and Future right
3. The best evidence to
Two Distinct Temporal Ownership Sticks show intent is some sort of
1. Ownership Now (Present right to title)
delivery
2. Ownership Later (Future right to title)
Possessory Estates
***Found in Life Estates and Remainders***
1. Fee Simple
Life Estate Rules
2. Life estate
See
1. Can't waste land because of future interests 3. Fee simple chart!
2. Alienable to the extent of life estate, but not determinable
future interests Future interests are always created
4. Fee simple subject to
3. Can be in the life of an individual other than condition subsequent
the holder of the life estate.
5. Fee simple subject to
an executory limitation
Ambiguous Wills
1. Ambiguous language in a conveyance by a grantor holding fee simple
(e.g., to b) is judicially interpreted as transferring Fee simple Absolute.?
look at grantor?s intent.
Steps for interpreting wills
1. Try to discern the intent of the grantor
2. Rules of construction
a. Presumption against partial intestacy: If some of the things are
conveyed in a will, then all of the things are conveyed in the will
b. Presumption against partial devise of real estate if it's unclear
whether someone has given a fee simple or something less than a fee
simple, it is presumed that the intent was to give a fee simple
POLICY: Fee simple is best for productivity and alienability, so it is
assumed that intent of the grantor was to uphold this
c. If intent is clear, the rules of construction do not apply
3. Alternative rules of construction
a. When you have conveyed something once correctly, and you convey
something wrong elsewhere, then it is assumed the wrong conveyance
was done purposely
b. Give effect to every word of a conveyance. Don?t strike portions of the
conveyance, especially when it was marked with importance.
4. Grantor or testator conveys her full interest in the property unless the
intent to pass a lesser estate is clearly expressed or necessarily implied by
the terms of the deed or will. White v. Brown
Life Estate Sticks
Right #1:The life tenant is entitled to the use and enjoyment of the land,
including any rents and profit. But, the life tenant cannot commit waste.
Right #2: Life tenant has restricted right of transfer. A life tenant may
transfer(possession of the land for the duration of the life estate) but
nothing more.
Duty: Law of waste ? you own some duty to the future interest holders to
not waste. Cannot make value of future interest holders go down
Law of Waste Rules
1. Triggered whenever two people have ?sticks? with regard to the same
property
2. One person cannot use the property in a way that unreasonably
interferes with the expectations of other interest holders
POLICY: The law of waste seeks to balance the interests of present and
future interest holders. The law seeks to allow present interest holders to
make productive use of their property while at the same time recognizing
the legitimate expectations of the future interest holder
Reasoning: Grantor's intent is to have the future interest holder take the
land in approximately the same state as the land was initially given