Megan McCormack

Property Outline
McFarlin 2019

I. Ownership:
A. Real Property
1. Land or buildings, title, derived from land grants at some point from the
government.
i. The Right to Exclude (E)
a. General rule: the private landowner has constitutional
right to exclusive enjoyment of his own property for any
purpose, which includes the right to exclude other from his
property when doing so does not invade the rights of
another person. (Jacque v. Mobile Homes)
ii. Elements of rule:
a. owner has total control over his property;
b. can keep people out;
c. as long as other’s rights aren’t impeded
i. Exception: Public employees providing a service
(Shack)
ii. Common law and statutes applied differently
iii. Right to Use
a. One must not use property in a manner that causes
unreasonable harm to the use and enjoyment of another’s
land
b. To assess unreasonableness, you measure harm to plaintiff
and social utility of defendant’s conduct

B. Personal Property
1. Allocation of chattels –
i. whoever got there first
a. Ownership: A thing capable of ownership but not then
owned belongs to the person who acquires actual or
constructive dominion and control over it and has the
intent to assert ownership over it
ii. Utilization of land
a. whoever uses the land (Hinman)
C. Intangible Property
1. The three part test, application of the law.
i. Defined;
ii. Legitimate claim to exclusivity or control;
iii. Exclusive possession;
a. (Kremen v. Cohen) Kazinski has to apply the three part test
to decide if it’s actually property.
II. Allocating Resources Through the Law of Property
A. The Rule of First Possession
1. The rule of capture: the first person to take possession of a thing owns it.
Megan McCormack
Property Outline
McFarlin 2019
i. Rewarding labor and use of land
ii. Protecting investment in resources (Sipriano)
1. Governs allocation of res nullius; awards ownership to 1st
possessor; basis of allocation of property in water, oil and
gas, fisheries, initial allocation of domain names on the
internet

A. Capture of wild animals: capture is required to establish

possession, while merely chasing an animal is not enough.
iii. Competition
iv. Ease of administration
v. constructive possession - Pierson v. Post [fox case]
vi. abandoned personal property Popov v. Hayashi
[baseball case]
1. Reasoning
The rules for determining possession are
contextual.

2. Acquisition by Discovery/ Rule of Conquest : Conquest gives a title

which the Courts of the conqueror cannot deny.
i. Creates chain of title beginning with land patent from the
government. (exception: Homestead Act)
ii. Johnson v. M’Intosh Takeaway: cause of action:
ejectment/removal from land
i. fee simple absolute-“heirs and assigns forever”
language

i. Property Values
1. Efficiency/wealth
2. Certainty/stability
3. Fairness/reward labor
4. Democracy
5. Personhood
POLICY: 1. Morality
2. Utility
3. Administrability
4. Competency
Courts:

III. Adverse Possession

iii. Required Elements of Adverse Possession:
a. An actual entry giving exclusive possession that is
b. Open and notorious;
Megan McCormack
Property Outline
McFarlin 2019
c. Possession has to be either adverse, hostile, or under
claim of right; “under claim of title”
d. Possession has to be continuous;
e. Possession has to be exclusive;
f. Possession has to be for the length of time required by
the statute of limitations.
iv. Policy reasons for recognizing adverse possession
a. Rewarding productivity
i. We want people to make use of land. (Gurwit v.
Kannatzer)