A.

Acquisition by discovery

M’Tosh v. Johnson: Case where court had to make determination that Indian title was not valid
• Dicsovery grants exclusive right to conquer the land or purchase the land. We are
speaking about Terra nullius (no mans land here or undiscovered land).
• The Indians were left with a right of occupancy.
• “Property rests and confers upon power”, the court had to gain power so it could confer
land, hence voiding title by the Indians.
• Discovery: The sighting or finding of hitherto unknown or un-chartered territory; it is
frequently accompanied by a landing and the symbolic taking of possession
• Conquest: The taking of possession of enemy territory through force, followed by formal
annexation of the defeated territory by the conqueror

B. Acquisition by Capture

Pierson v. Post: Case with the fox hunters

• A person who captures resources first gets them
• Mere pursuit will not give possession, you must capture it
• Fatal injury may lead to a valid capture upon animal, or if the animal is virtually captured
it is considered to be in possession
• Ferea naturae: Animal on no mans land and open for capture

Ghen v. Rich: Case of the whalers

• Although first to capture obtains possession of animal, sometimes an established trade
will be a better method of killing animals and keeping people in the business
o Fast Fish: Idea Is that if the fish loose it does not belonging to anyone, you must
catch it
o Iron: If you have your harpoon in it then it becomes yours.
o Splitting the difference: Like in the Popov case with the baseball

Keeble v. Hickirengill: Guy scaring away ducks

• If a competitor tries to capture animal while another in pursuit that is fine because its
competition. But if one interferes with no interest whatsoever, then its malicious
interference with business

Popov v. Kayashi: Barry Bonds baseball case

• Court speaks of Grays rule which says that one must keep control of ball even after
incidental touching
• However here there was criminal acts aganst person, and hence that created a pre-
possessory interest for Popov.
• Since Hayashi also didn’t do anything wrong, court decides to go with “equitable
division”
C. Right to Exclude

Property rights are like a bundle of rights: The most important right could be that of “right to
exclude”, tighter with the “right to transfer” and the “right to possess”. The SC stated that the
right to exclude is very important.

Jacque v. Steenberg: Case with guys trying to carry home trough persons land
• The court here made it clear that the right to exclude is very important and it should not
be breached upon (trespass)

State v. Schack: Case of government agents trying to get into land and help migrants (Exception
to right to exclude)
• Court states that right to exclude is not absolute and they cannot be used to limits the
rights of others”

D. Acquisition by succession: By Find

General Rule: An owner of property does not lose title by losing property. The owners rights
persist even tough article has been lost or mislaid. As a general rule, however, a finder has rights
superior to everyone but the true owner, but there are exceptions.

Armorie v. Delamirie: Chimney boy found jewel

• The court here is stating that the claim of right of the chimney boy is superior to
everyone except for the true owner. “the finders keepers rule”

Anderson v. Goldberg: Case where man stole wood from land and sold it.
• Court said that the owner had greater title over the other and he had to get it back.
• The party who stole it had title over the third party., but the owner is superior in title to
all.

What is Possession? For finder to become possessor it must acquire physical control over the
object and have intent to assume dominion over it.

By find in premises of owner

Hannah v. Peel: Soldier finds valuable thing in house they were based at
• Court really liked the soldier here.
• Usually an owner of premises (a private place) owns everything under the land or
attached to it.
• However in this situation the object was not buried or attached the soldier acted with
honor and the court awarded him. So something merely lying on the surface does not
belong to the owner.

Bridges v. Hawkseworth: Man found wallet on floor of shop

 • Te court determined object here ot have been lost and therefore belonging to the finder
because small or no chance the owner would come look for it there. He may not even
know its there
• Generally a lost object will be given to the finder of it

South Staffardshire v. Sharman: Worker found ring in pool embedded in it

• Deals with constructive possession which is when an owner has possession of objects on
his land (buried or embedded in land) without knowing of it
• Also when people are working on land with permission of the owner, and are limited to
such, the owner gets all that they find.

Lost: Lost property is property that the owner accidentally and casually lost (GOES TO
FINDER)
Mislaid: Mislaid property is property intentionally placed somewhere and then forgotten
(GOES TO THE OWNER OF PREMISES). Reason behind this is because the true owner might
remember that he left it there.

McAvoy v. Medina: Man found wallet on table of barbershop

• The court here states that by judging the position of the object it was intentionally put
there and therefore mislaid
• Under such circumstances the owner of premises gets it because there is a chance that
owner will come back there to get it.

E. Acquisition by Adverse Possession

Requirements of Adverse possession
1. An actual entry giving exclusive possession that is (this triggers cause of action which
starts the statute of limitations)(the adverse possessor cannot share it)
• Constructive Possession of Part: When you have a color of title you can
constructively adverse possess all the land described on the deed
• Exclusive: The person cannot be sharing title with anyone, especially the owner
2. open and notorious (acts that will constitute reasonable notice to the owner so that he
can defend is rights)(the person must act in a way that makes others believe that he is the
true owner)
• Van Valkenburgh v. Lutz: NY statute required that one entering without color of
title could claim AP if “he protected place with substantial enclosure” or “usually
cultivated or improved” the place.
3. adverse under a claim of right, and
• Objective test: State of mind of possessor is not very important; what is important
are the actions of the possessor. Actions must look like claims of ownership.
• Subjective Test: Must have a bono fide or good faith belief that he has title. If he
knows he doesn’t have title, his possession is adverse.
i. Mistaken Belief: Some hold that if possessor mistakenly belives that he
has title, but if he knew the truth, would not claim title, he is not
occupying adversely.
 • Color of Title: Claim founded on a written instrument (a deed or will) or
judgment or decree.
i. Color of title not required: No need really for such (maybe common law
needed it)
1. Minority views: In few states color of title required
2. Constructive Adverse possession: Having color of title
advantageous because you get all that described in the faulty deed
• Boundary Disputes: Person msitakelnly takes lands
i. Objective Test (Majority): Actions are all that matters and the fact that it’s
a mistake is not determinative. (Manillo v. Gorsky, case were court
decided to follow the Majority view of objective standard, but also stated
that a small amount of land possessed will not leas to the required open
and notorius possession to give proper notice to the owner)
ii. The Maine Doctrine: There has to be hostile intent to take over land of
someone, and a mistake will not do it. Its intentionally taking over over
another claim of ownership.
iii. Agreement on boudaries
1. Agreed boundaries: You can agree to what you want, not as
conveyance thoug.
2. Acquiescence: Long acquiescence-but perhaps for a shorterperiod
of time that the statue of limitations- is evidence of an agreement
between the parties fixing the boundary line
3. Estoppel: Here a person acts in a certain way and the other relies
upon it (like pays to make certain changes), then the person
inducing reliance will be estopped
4. continuous for the statutory period
• Continuous possession: Use an average owner would make of the particular type
of property. Purpose for continuous is to give person notice.
• Seasonal use: U don’t have to be there all the time is such lands are normally used
this way. ( Howard v. Kunto, summer home being used only in summer was
deemed to be continuous because that was the purpose of it, and a normal owner
would do the same.
i. Tacking: Tacking onto your own period, the possession period of a
predecessor in interest. There needs to be privity of estate in those
situations.

Extent of land acquired trough adverse possession

• Without color of title: Claim extends only to part of land actually occupied on
controlled
• With Color of Title: This deals with constructive possession, and the person can claim
all land that is described in the instrument, provided that parcel of land reconginzed as
one by the community.

Adverse possession of Chattels

• NY Rule: SOL begins to run when the owner knows who has the goods and makes a
demand for return that is rejected (Guggenheim v. Lubell)
 • Due diligence Rule: The conduct of the owner is whsat you look at. The SOL begins to
rune when the owner first knows, or reasonably should know through the exercise of due
diligence where the Stolen goods are (O’Keefe v. Snyder, where lady did not know where
her paintings were)

F. Acquisition by gift

A gift is a voluntary transfer of property without any consideration. There are 3 requirments for a
gift of chattels:
1. Donor must intend to make gift
2. Donor must deliver chattel
a. Constructive Delivery: Where manual delivery impracticable, this is permitted.
Handing over the means of obtaining possession and control (usually a ky), or in
some way relinquishing dominion and control over the property (Newman v.
Bost: Nurse received key to furniture and was able to obain those, but not the
insurance policy in it.)
b. Symbolic delivery: When delivery impracticable because chattel too large or
situationof parties will not permit such is permittes. Handing over of some object
that is symbolic of the thing given. Like handing over an instrument I writing.
(Gruen v. Gruen: states that even intangible interest can e transferred in these
ways, like a father wating to give a remainder to his son for a painting he wants to
keep during his life).
3. Donee must accept gift

Types of gifts
Inter vivos: Made during the life of a person. Once made it is irrevocable.
Causa Mortis: gift made in contemplation of immediately approaching death. There is danger of
fraud in these so courts watch out for them. Gift revoked if the donor recovers from the illness
that prompted the gift.

G. Possessory Estates

Fee simple: The top dog, usually granted by saying “to A and his heirs”
Fee tail: Kept in the bloodline “to A and the heirs of his body”
Life Estate: Will end at death of some person, usually “ to A for life”
Leasehold Estates: Term of years, periodic or at will.

Freehold and non-freehold: Major difference is that freeholder in possession has “seisin” and
leaseholder has only possession.