Outline Acquiring/ Retaining Rights to Property: 1) Capture Originally, the rule of capture governed property rights in wild animals;

ownership was acquired only by physical possession of the animal. The rule of capture was later used to determine property rights in other natural resources such and water, oil and natural gas. RULE: if one takes occupancy in something, then one owns that something POLICY: promote judicial economy and reduce quarrels, certainty Promotes socially efficient activities such as hunting and taming wild animals. Provides a bright-line rule that is easy for courts to administer. Promotes social harmony and mitigates fractious litigation. a. Natural Resources/ First Possessor Rule of capture (2 elements) 1 intent to possess. 2 bring under certain control = they own the thing. Peirson v Post D won Post had certain control - established occupancy State v. Shaw P won owner had captured fish 1under certain control 2-obvious intent to possess Popov v Hayashi?? wild animals oil gas water hard minerals

2) Ratione Soli "According to the soil" - In property law, it is a justification for assigning property rights to landowners over resources found on their own land. Must catch the wild animal in order to own it American Presumption of Permission If land is undeveloped, unenclosed and un-posted, then a hunter or forager has permission to enter onto the land to hunt and forage. Policy: This presumption suggests a compromise of competing policy considerations. It protects the landowners right to exclude hunters and trespassers, while recognizing that (1) in early America property parcels were smaller than in England and a hunter could easily pass over many such parcels in pursuit of wild game, and (2) in early America people needed to feed and support themselves through hunting and foraging in the woods, no matter who held title to them.

3) Adverse Possession Title to personal property may be obtained by adverse possession. However, the limitations period for the recovery of such property is generally 2 to 6 years, shorter than the period for real property. Traditionally, the limitations period begins when the adverse claimants possession becomes open and notorious. Today, many states apply a discovery rule, which tolls the period until the owner discovers, or reasonably should have discovered, the location of the property. A thief cannot transfer valid title to a good faith purchaser unless the thief gains new title by adverse possession. RULE: Adverse Possession can be established by a plaintiff by proving that the following elements are satisfied, if proven that person owns the land. Policy Considerations for Adverse Possession. efficient/productive use of resources and property/land mistaken title defective deed encourage development improve lands protecting personhood so attached to land, loss would be personal Encourages reliance and investment (reassures banks etc.) Facilitates exchanges (identifies sellers with good title) Obviates old claims that might chill the lands marketability Requires assertion of claims while evidence still available Discourages vexatious litigation As a statute of limitations it bars the true owner from bringing a suit to eject the occupiera statute of repose. As an action to quiet title, it confirms the adverse possessors title to the land. Gurwit v. Kannatzer established all the elements a. Elements i. Open and notorious a. Open=Visible b. Notorious=Known or Discoverable c. Without any attempt to hide or disguise his or her use caves? Must be visible if the true owner were to visit and inspect the land If the true owner were to check out the property they would see the AP Constructive notice requirement Use sufficient to give notice to the true owner if he or she is properly monitoring the land. Neighbors know Payed taxes WA and other states with a shorter statute of limitations for actions to quiet title or ejectment often require the occupier to have paid the taxes assessed on the land. Often this limits adverse claimants to those with color of title, ii. Exclusive cant share with public and definitely not the owner Use the property as it was designed. i. Owner uses cabin as a fishing lodge in the Spring and Summer

Occupy property in the manner that you own it, act like owner outwardly. (Chaplin) iii. Actual Van Valkenburgh v. Lutz Claimant must physically use the land in the same manner that a reasonable owner would, given its nature, location, and character (payment of taxes) - for gardening or whatnot - (substantial improvements for forested land in WA) - building a fence and cultivating or pasturing up to it; - clearing land, constructing and occupying buildings, and planting orchards; - building a road; - building irrigation ditches; - maintaining a partial fence and annually cutting brush; Boundary of possession: Court looks for evidence of dominion and control Continuous HOWARD v KUNTO The acts of possession must be continuous, as a reasonable owner be a. Continuous does not mean constant possession Given the character of the land summer use nature of property NO significant break Vacations Serving a short sentence in the county jail Temporary absences that we would expect of a legitimate owner are ok A significant break will cause what is called abandonment of adverse possession. Key Question: Was the break longer, and marked by a more complete removal of the adverse possessor's improvements, than a true owner of such land would normally have? At common law20 years In most eastern states15-30 years In many western states10 years or less WA 10 years v. Hostile, Adverse, Under a claim of title. a. Adverse possessor must claim the land as his or her own b. Adverse possessor must possess the land WITHOUT the express or implied permission of the true owner Intent is not an issue in WA bad faith v good faith i. Objective Approach (Washington State) -Majority Rule Conduct, not intent determines hostility Good faith not a requirement/may be helpful ii. Subjective Approach - Minority Rule Occupier must act in good faith when asserting his or her claim to the land Permission to use the land is presumed when the possession

iv.

i. ii. iii. iv.

v.

Begins with the permission of the true owner Continues after transfer of the occupiers interest Continues after the termination of a lease Is of land owned by a blood relative 1. Totman v. Malloy 2. Example of a negative presumption, a presumption that the element (here hostility) is met Rebutting a presumption of permission 3. Requires a distinct and positive assertion of right hostile to the owner brought home to him or her by words or acts. 4. Must file and successfully prosecute an action of ejectment 5. What if judgment issued after required period expires? 6. Judgment relates back to date of filing

b. Tacking HOWARD V KUNTO Rule: If successive occupants in privity of estate continuously possess the property of another for a combined period equal to the statutory period for adverse possession while also satisfying the other elements of adverse possession, then the last of the successive occupants is deemed to have continuously possessed the property for the statutory period. i. Successive occupiers may tack their periods of possession together so long as there has been some privity or nexus between them. ii. Secondary occupier gets benefit of years the original adverse possessor had occupied the land for purposes of satisfying the time period requirement What constitutes privity and nexus? One must willingly turn over possession of the land to the successor iii. What if the prior adverse claimant abandoned the property before the arrival of the successor adverse claimant? Clock starts to run anew c. Disabilities type of tolling a. Must exist the same day the adverse possessor comes onto the land b. Minority c. Incompetence d. Disabled to the point that one cannot understand the nature of the proceedings e. Imprisoned prior to sentencing f. Death (one year) When two or more disabilities shall coexist at the time the right of action accrues, the limitation shall not attach until they all be removed. d. Tax Issues payment of taxes may satisfy the visible, notorious element. It may also lower the time limit. Reduced to 7y in WA

WA and other states with a shorter statute of limitations for actions to quiet title or ejectment often require the occupier to have paid the taxes assessed on the land. Often this limits adverse claimants to those with color of title, Majority rule: All that is required is that the adverse claimant pays taxes. Payment of taxes by the original owner is irrelevant. Minority rule: depends upon who paid the taxes first. WA rule: Where there has been double taxation by payments of true owner and adverse claimant, latter is not within this statute. If the true owner has not paid taxes they may still eject the AP e. Color of title - a claim to title, which appears valid, but may be legally defective. Color of title may arise when there is evidence, such as a writing, suggesting valid legal title. f. State of Title: Doctrine of Relations Back i. Title obtained by adverse possessor relates back to first day of adverse possession ii. Successful adverse claimant was never a trespasser iii. Successful adverse possession, therefore, cuts of all other legal claims such as conversion of timber cut from the property during the adverse possession g. Constructive possession Land held under color of title gains title to all land described in the deed, not just the land he actually possesses. a. If you only occupy 1 acre, but under the color of title you can possess all the land you own in your deed. b. Color of title i. A claim based on a document, such as a deed or court judgment, that turns out to be defective. Adverse claimant takes subject to any easements, liens and mortgages that existed when he or she took possession. He or she does not take subject to any claims arising after he or she took possession.

Adverse Possession Defenses 1) Privilege 2) Permission 3) Consent 4) Statute of Limitations

4) Animae Revertendi - "With intention to return" It can refer to an animal that is under the care of another, which distinguishes it from an animal ferae naturae (wild beast). It is a type of ownership right recognized by property law. Rule: If a wild animal that has been trained or otherwise developed the habit of returning to its owner is released into the wild, then the owner continues to own the animal. Policy: Encouraging the taming of wild animals for productive use.

5) Water rights a. Surface Water Different Right Systems i. Prior Appropriation, beneficial uses SIPRIANO V GREAT SPRING WATERS OF AMERICA RULE: If a person (1) intentionally (2) appropriates a certain quantity of public water by actually diverting it (3) and applies it to a beneficial use, then that person acquires water rights in that quantity of water to the exclusion of subsequent rights established by appropriation or riparian ownership. POLICY: ii. Riparian Rights RULE: reasonable use doctrine. A riparian owner is said not to own the water, but to have merely the right to make reasonable use of it on the riparian land, subject to the right of other riparian owners on the same stream to do the same Permit System Apply from the gov. Must be reasonable, cant water lawn with 5000 gal. Rights to Diffuse surface water - run off rule of Resolving run-off disputes Common enemy - RULE: The common enemy doctrine, in its pure form, would regard surface water as an outlaw or common enemy, which any landowner may use any method to get rid of, without liability to any other owner. - POLICY: This doctrine tends to facilitate the development of land, to free the developer from worry about liability to other owners from changing drainage. Civil Law rule RULE: An owner is strictly liable for the slightest damage to another owner from changing the flow of surface water. WA rule - Follows the common enemy rule but must include due care (not negligent) Reasonable use rule RULE: This rule calls for a balancing of the interests of contending owners; it allows the developer to take reasonable steps to control surface water, up to the point that it causes unreasonable harm to other owners. POLICY: This is the rule advocated by the Restatement Second of Torts, which describes the reasonable use rule as the doctrine of nuisance applied to surface water. b. Groundwater i. Underground stream or percolating water ii. Surface water laws apply to groundwater iii. Percolations water has its own rights - Reasonable use

iii. iv. v.

Permit Correlative rights approach Capture rule

4 approaches to percolating ground water 1 rule of capture use as much water as you wish, cannot be used in a malicious use. 2 reasonable use reasonable use upon the land, no transport off. This would change the outcome of the Sipriano case. 3 permit system must apply to the gov to get the land EXCEPTIONS okay to water lawn and make garden in a reasonable way limit 5000 gal. a day. 4 correlative rights there is water under several parcels you are entitled to your proportion, based on the amount of land acreage you have. 6) Finders laws Finders often acquire possession of lost, mislaid, or abandoned items. The nature of the item and the location of the find are important in determining the finders rights. Generally, lost and abandoned items go to the finder, unless the find is made at an owner-occupied residence. Mislaid items usually belong to the possessor of the place where the item is found (the locus in quo). If an employee finds an item in the course of his employment, it belongs to the employer. A finder is a bailee, with a duty to care for the found item. chattels - an item of property other than real estate (involuntary bailee) Finder has a duty to try to find the owner and take care of the chattel Incentive no liability and you may get the property later, Policy: To increase the likelihood that the lost or mislaid chattel will be returned to its true owner. Rule: Award possession to the person that maximizes this (policy above) likelihood.

(a) Lost property unintentionally and involuntarily parting with property (b) Mislaid property voluntary and knowingly placed somewhere, unintentionally forgotten it goes to the locus in quo first because the true owner would more likely contact the property than the finder. (c) Abandoned property - knowingly relinquished rights and title and interest. (d) Treasure trove owner concealed property in a hidden location long ago gold, silver, coins and money Owner > Prior Possessor > Finder > Subsequent Possessor ARMORY v DELAMIRIE - jewel Finder has more right to a property than all except the true owner. HANNAH v PEEL - brooch The role of the finder on the land: had privilege not there to clean or find Had the power to find something not an agent working for the landowner. Finding chattel is outside of the privilege

BENJAMIN v LIDNER AVIATION cash in plane wing Treasure trove v. Mislaid property this case was mislaid prop. MCAVOY v MEDINA found wallet in shop 1) Property left accidentally in a shop is mislaid property. 2) The owner of the shop has rights in the property. The finder may keep the property if the true owner is not found after a reasonable time, and reasonable attempt to find them Policy goals: to see that the lost property is returned to its rightful/true owner. want to award possession to whomever might satisfy this best. if not true give it the person who will be able to use the property best (ie. Get it back to the true owner) Fixture: something that once was a chattel and is now attached to land or another fixture (cant find a fixture) sewer pipe fence post fence rail attached to post house curtain rod screwed to wall finds that are fixtures: If a found chattel is completely or partially embedded in the soil or so large and bulky that it is regarded as a fixture, then that chattel belongs to the locus in quo (fixture is not a chattel cant be found) Wallets and IDs: No, if the true owner can be readily identified from the circumstances, then the chattel is not lost. Bailments Bailee the one who receives Bailor the one who delivers 3 types of bailments 1. both benefit drop off watch 2. friend borrows car bailee gains highest level of care 3. take care of my dog bailor gains must care above gross negligence or reckless care of chattel 7) Inter-vivos transfers Gifts Three elements are required for an inter vivos gift: Donative intent, delivery, and acceptance. The item must be physically handed over to the donee unless such manual delivery is impossible or impracticable, in which event constructive or symbolic delivery may be used. Acceptance is assumed if the gift is unconditional and beneficial to the donee. An inter vivos gift is irrevocable. Transfer of property or interest during a person's lifetime.

Gifts Rule has 3 elements 1. Donative intent 2. Delivery (actual (physical delivery), constructive (a key), symbolic (deed)) 3. Acceptance (gift is assumed accepted if the gift is unconditional and beneficial to the donee) No consideration Future gifts not enforceable Inter vivos gifts cannot be revoked once accepted Policy: To give effect to the donors intent while avoiding mistakes by the donor as well as fraudulent claims and perjury by donees. The burden of proof for all elements of an inter vivos gift is clear and convincing evidence. A higher burden of proof helps achieve these policies. As does the requirement of delivery. Intent to transfer in the future not a gift yet Intent to transfer at death causa mortis gift Gruen: Intent: whether the maker intended the [gift] to have no effect until after the makers death, or whether he intended it to transfer some present interest 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 Delivery: [t]he delivery necessary to consummate a gift must be as perfect as the nature of the property and the circumstances and surroundings of the parties will reasonably permit. Here, of course, we have only delivery of Victor Gruens letters which serve as instruments of gift. Acceptance: but when a gift is of value to the donee, as it is here, the law will presume an acceptance on his part Present v Future interest: American property law allows an owner to separate her title into different segments based on time. For example, one person can have the immediate right to possession (a present interest), while another can have the right to possession at a future date (a future interest) Check no gift occurs until the check is cashed. The Washington Rule: where: (1) the donor's intent is clear; (2) creditors are not prejudiced; (3) there is no fraud or undue influence; and (4) the check was not cashed before the donor's death because of circumstances beyond the donor's and donee's control, the giving of a check will constitute constructive delivery of the funds. Personal Property: Tangible personal property consists of movable items such as guns, paintings, and wallets. Possession of personal property gives the possessor certain rights, depending on how and where the possession is obtained. Causa Mortis gift: Four elements are required for a gift causa mortis: the three elements of inter vivos gifts, plus a fourth the donors anticipation of imminent death. A CM gift is revocable before the donors death; in most states

it is automatically revoked if the donor does not die from the contemplated peril 8) Adverse possession of chattel Same as Replevin common law action to recover the goods 1, wrongful detaining 2, chattel of another 3, continuous until suit. 3 years in WA Trover the action to recover the damages 1, actual 2, exclusive 3, open and notorious 4, hostile 5, continuous 6, statutory period (Replevin amount = 6 years) Good faith purchaser 1, buyer 2, who pays good value 3, does not and should not know that the seller did not have good title to the chattel Relates back to the day the property converted You can keep the interim profits Taking allowed by majority, not by minority Concealment anything that would make the chattel less likely to be found by its true owner (not open, notorious in a typical owners way) REYNOLDS v BAGWELL (violin) Time accrues from the day that you take possession Policy: cures title defects in chattel, promotes commerce and use of chattel, punishes owners who do not diligently pursue their rights, protects good faith purchasers, protects personhood. 9) Title No Title - you have no rights or possession in a chattel Void Title - The thief has more than no title because they could recover the item from a subsequent possessor. Transfer of void title does not create good title it may create voidable title Nemo dat quid non habet = one cannot give what one does not have Voidable Title - Voluntary transfer of chattel through fraud = conveyed voidable title to a good faith purchaser. The purcharser can then sell the chattel to a third party who then has good title as long as the chattel transferred from the owner was voluntary. Good Title A bailee who is a merchant in the kind of good entrusted to her receives voidable title. If a good faith purchaser buys chattel (Entrusted Chattel) from the bailee Then they have good title Losing rights to Property 1) Abandonment 2) Rule of escape Native Habitat: If a wild animal escapes or is released back into the wild, then the owner is divested of her ownership in the animal. Policy: Uncertainty as to ownership of the animal would deter hunters from hunting a socially productive activity.

Non-Native Habitat: If a wild animal escapes or is released from captivity into non-native habitat, then the owner continues to own the animal. Policy: The presence of a wild animal in non-native habitat provides notice to everyone that someone already owns the animal. 3) Adverse possession of real property land and thing attached to it (houses, fences) a. Priorities of Possession IF a person possesses the land of another in a manner that is; Actual, exclusive, notorious, continuous, and adverse/ hostile, for the statutory period, THEN, that person owns the land 4) Adverse possession of chattel - moveable items, chairs, art drugs, patents Same elements as Adverse possession of Land however, open must be more open. Violating Property Rights 1) Trespass Direct damage (trespass vi et armis), Consequential Damage (trespass on the case (disturbing ducks, disrupting hunting)) An intentional entry onto the land of another without a privilege to do so is a trespass. Rule: If a person intentionally enters onto the land of another without a privilege to do so, then that person is liable for trespass. Policy: Absolute ownership of the airspace above or the subsurface ground below is a doctrine which has no place in the modern world, Ownership in the airspace above and ground below the surface is not fixed. It varies with our varying needs and is coextensive with them. The owner of land owns as much of the space above and below her as she uses, but only so long as she uses it. A person owns so much of the space above and the earth below the surface of her land as she can occupy or make use of, in connection with the enjoyment of her land. a. Air UNITED STATES v CAUSBY Airspace rights: extend above in a reasonable area of possible use. Trespass would effectively diminish the use of the property. b. Land - actual contact to land (trespass vi et armis), DOROTHY CAMER, v. TCI WEST 1. A person is liable for trespass if he or she intentionally enters land in the possession of another, causes a thing to do so, or fails to remove from the land a thing which he or she is under a duty to remove. 2. Conduct that would otherwise constitute a trespass is not a trespass if it is privileged. c. Sub-surface CHANCE v BP CHEMICALS, INC Subsurface rights: do not extend endlessly below. if the trespass was with legal right, accident (trespass on the case)= 2y if the trespass was originally illegal (trespass the land) = 3y Trespass elaboration Actual interference with the use, or foreseeable use of the land Defenses: Consent: Actual consentalso known as express consent;

Apparent consentwhen a reasonable person would infer consent from the persons conduct; Consent implied by lawin situations where a reasonable person would conclude that the entry is necessary to save a persons life or to protect some other important interest. Necessity: A privilege to interfere with the property interest of another when it appears necessary to do so to a reasonable person in order to avoid a threaten injury that is substantially more serious than the injury that will result from the interference with the property interest. Legal Relations Right Privilege Liability Disability

Duty No Right Power Immunity

Wendel 1) Legal Planes 2) Interaction 3) What Results when the planes interact Policies 1) Judicial Economy owning property creates less quarrels 2) Economic Efficiency every takes trees v one person divides a. greatest happiness for greatest number of people b. increase wealth of society does private property promote social wealth? - core foundation for utilitarianism - Magic wand example 3) Best/ Highest Use - one owner can best the land 4) Labor Theory/ Utilitarian/ Personhood you worked your land and now its yours By allowing people to own property society can increase it happiness. Increases wealth privately and socially Civic republican theory Conversion is a common law tort. A conversion is a voluntary act by one person inconsistent with the ownership rights of another.[1] It is a tort of strict liability.[2] Its criminal counterpart is theft. Examples are seen in cases where trees are cut down and the lumber hauled from the land by someone not having clear ownership; or removing furniture belonging to another from a cohabited dwelling, placing it in storage and not telling the owner of the whereabouts. Larceny - if a person (1) takes and carries away, intentionally (2) the personal property of another, then that person is liable/guilty of larceny

Good summary of rules on p. 232 Personal Property: Tangible personal property consists of movable items such as guns, paintings, and wallets. Possession of personal property gives the possessor certain rights, depending on how and where the possession is obtained. Capture Originally, the rule of capture governed property rights in wild animals; ownership was acquired only by physical possession of the animal. The rule of capture was later used to determine property rights in other natural resources such and water, oil and natural gas. Finders Finders often acquire possession of lost, mislaid, or abandoned items. The nature of the item and the location of the find are important in determining the finders rights. Generally, lost and abandoned items go to the finder, unless the find is made at an owner-occupied residence. Mislaid items usually belong to the possessor of the place where the item is found (the locus in quo). If an employee finds an item in the course of his employment, it belongs to the employer. A finder is a bailee, with a duty to care for the found item. Adverse Possession Title to personal property may be obtained by adverse possession. However, the limitations period for the recovery of such property is generally 2 to 6 years, shorter than the period for real property. Traditionally, the limitations period begins when the adverse claimants possession becomes open and notorious. Today, many states apply a discovery rule, which tolls the period until the owner discovers, or reasonably should have discovered, the location of the property. A thief cannot transfer valid title to a good faith purchaser unless the thief gains new title by adverse possession. Gifts Three elements are required for an inter vivos gift: Donative intent, delivery, and acceptance. The item must be physically handed over to the donee unless such manual delivery is impossible or impracticable, in which event constructive or symbolic delivery may be used. Acceptance is assumed if the gift is unconditional and beneficial to the donee. An inter vivos gift is irrevocable.