Acquisition by Discovery

The idea that property can be acquired by discovery Johnson v. MIntosh (1823) - Rival claims for ownership of land in Illinois. Johnsons cliam was the last link in a chain of title going back to the aboriginal inhabitants of the land. MIntosh said his title was better because it came from the US, although after the Indian conveyance to Johnsons predecessor. o Court held for MIntosh because Indians only held aboriginal title, a right of occupancy that could be cut off at any moment by the US, as successor to the Euro discovers of the land. US derived its ownership by conquest.

Acquisition by Capture
Pursuit is insufficient to establish a property right. You actually need to capture. (Pierson) Pierson v. Post (1805) - While Post was hunting and chasing and pursuing a fox with his dogs, Pierson, knowing the fox was pursued, caught the fox, killed it, and carried it away. Post sued in trespass on the case arguing he acquired a property right in the fox by pursuing it. o Mere pursuit gave Post no legal right to the fox. Pierson, however, acquired such rights by capturing it. Capture is not required to acquire a right: wounding is also a viable way. Reason for the rule that pursuit is not occupancy is for sake of preserving peace, order and certainty in society. o Dissent (Livingston): custom among sportsman was for pursuit to grant a property right to the pursuer. This rule encourages fox killing because chickens are important. look at the cultural influences

Acquisition by Adverse Possession

Facilitates marketability and transfer of land even though there are clouds in title search, rewards person who uses, works and improves property for long time Rationales for adverse possession (justifications): - Sleeping Theory o Slothful owners, who ignored people using their land in violation of legal right, deserve to be penalized - Earning Theory o People who use land productively and beneficially for a long time ought to be rewarded - Stability Theory o Enables disputes or doubts about land titles

Title Search: Most jurisdictions keep land records by index of grantors and grantees. Adverse possession settles titles; Landowners can feel secure in their title; otherwise, someone could show up decades after the property has been searched and say their deed was earlier.

Elements of Adverse Possession *****FIRST LOOK AT THE STATUTE**** 1. Actual Entry Giving Exclusive Possession a. The possessor must actually physically take possession of the true owners land making neighbors and observers regard the occupant as a person exercising exclusive dominion. Cannot be shared with either the true owner or the public i. Minority Approach (NY): conduct that constitutes actual possession when adverse possession is premised of claim of right, claimant must cultivate, improve or substantially enclose the property. Van Valkenburgh Van Valkenburgh v. Lutz (1952) - Lutz owned piece of land, but found it easier to get to the street by crossing a piece of land he didnt own and cleared a path in order to do so. Van Valkenburgh bought the property at foreclosure sale and constructed a fence across the path. o Suit 1: Lutz sued to enjoin VV from interfering with his right of way. Trial court held for Lutz awarding him a right of way (prescriptive right) o Suit 2: VV sued Lutz to compel removal of their encroachments on the VVs land. Lutz argued for adverse possession o Court held no adverse possession because proof fails to establish actual occupation under the NY statute: protected by substantial enclosure or usually cultivated or improved 1) lutzs cultivation of the garden did not utilize the whole premises claimed and the area cultivated did not have defined boundaries (needed to cultivate a plot for the statutory period) 2) Lutzs claim of title was not hostile; he thought he owned it but was mistaken in that belief that he owned it and he admitted VV was true owner 2. Open and Notorious a. Acts of possession must be so visible and obvious that a reasonable owner who inspects the land will receive notice of adverse possession claim. Open if use of the property is in the manner that a reasonable owner would use it under the circumstances. i. The owner must be on notice of the possession. Kunto ii. If the possession is not objectively notorious but the landowner had actual knowledgethat is sufficient. Manillo iii. Not necessary to show owner obtained actual knowledge of the claim. Manillo

iv. As long as adverse possessor is open and notorious, NY requirements for cultivation and improvement or substantial enclosure is not a big deal Manillo v. Gorski (1969) - Gorski built a set of steps that encroached onto Manillos land by 15 inches. o Court held if true owner had knowledge of the encroachment, it was open and notorious and therefore adversely possessed. If not, court must determine whether the true owner should convey the dispute tract, and if so, what consideration should be paid. 3. Adverse or Hostile Under Claim of Right/Title (state of mind of adverse possessor) a. Objective Test: state of mind is irrelevant i. Did true owner authorize possession? If no, adverse possessor has satisfied this element under objective test. 1. True owner argues it was permissive 2. Adverse possessor argues he is using as true owner would without consent 3. Character and actions can show permission. Othens. b. Good Faith Test: believe in good faith that adverse possessor owns land i. Was it permissive? 1. Trust owner argues adverser didnt have good faith or bad faith because he thought he was permissively occupying the premises. a. True owner argues its a lease and lease is permissive 2. Adverser argues I believe I had claim of title 3. In Othens, there was a gate and that was considered permission. Court says that your character and actions can show permission. c. Bad Faith (Intentional trespass test): adverse possessor must know he does not own the land and must intend to take title from true owner i. Was it permissive? 1. True owner argues its not good or bad faith because it was lease and lease is permissive 2. Adverser argues he read lease, knew it expired and he was therefore on land in bad faith d. IF TRUE OWNER AUTHORIZES OR CONSENTS TO POSSESSION, IT IS NOT CONSIDERED ADVERSE OR HOSTILE POSSESSION i. A lease is always permissive and not ownership e. ****make public policy argument: if the court doesnt adopy any test, it should not be bad faith: people in good faith should be protected. They have more justifiable claim bc objective of doctrine is to allow people to be settled and to have strong reliance interests so they can

investent in their property. People in good faith have deeper reliance interest, they prob invested more West v. Tilley (1970) - adverse possessors owned land on a shore. They built a wall along the shore line, but extended it along the frontage owned by true owner. Later, they built an additional wall, effectively usurping all of the true owners lake side property o Court held although the adverse possessors took possession by mistake, their claim was still hostile. The possession was visible and claim of right was held with an intention to possess the land occupied under the belief that he owned the land (good faith). Even a casual inspection of the boundary lines of the property would have revealed the occupation. Van Valkenburgh dicta: VV stated that the garage encroachment by mistake was insufficient to establish liability. However, Lutz also insufficiently cultivated the land, therefore, this is dicta and is overruled in West. Walling v. Przybylo (2006) - adverse possessors owner a lot next to the true owner. They bulldozed and deposited topsoil on the northern side of yard; they constructed an underground dog wire fence to enclose their dog; they continuously mowed, graded, raked, planted and watered the grassy area; they installed PVC pipe and bird house. When learning of survey by true owner, adverse possessors sued to quite title. o Court held that an adverse possessors claim of right or ownership will not be defeated by mere knowledge that another holds legal title (no regard to good or bad faith). REVERESED BY NY STATUTE. NY Statute for Adverse Possession: 501(2) - same as common law; requires open and notorious, exclusive and actual - different in regard to claim of right o in NY, need affirmative evidence that a reasonable person would believe they owned the land - now in NY, cannot gain title unless adverse possessor can introduce evidence that would justify reasonable belief of ownership: statements by the seller, survey that owner would take up 4. Continuous Possession for Statutory Period a. Summer months only for 10 years was continuous possession because average owner of similar property would use it in this way. Kunto b. If true owner reenters land and retakes possession in open and notorious manner, required continuity and exclusivity ends c. EXCEPTION: TACKING: where several successive purchasers received record of title in a continuous manner, their privity of estate permits taking their time of possession together. Kunto. i. In order to tack, the adverse possessors must each satisfy the same claim of title (if good faith jurisdiction, all tackers must be in good

faith) and elements of adverse possession AND must be in privity (continuously possessing the land and believing they have connection or privity of estate to past person on land) Howard v. Kunto (1970) - Kunto occupied a summer house under a defective deed. Howard, record owner, sought ejectment, and Kunto countered with adverse possession o Court held it was adverse possession because reasonable owner would use land in same way o 1) continuous possession: occupancy during summer months for more than 10 year period by defendant and his predecessors together with the continued existence of the improvements on the land and beach area constitute uninterrupted possession. o 2) tacking: tacking on successive possessions of property where successive purchasers received record title in a continuous manner is permitted for purposes of established adverse possessors if all the successive owners are in privity (by operation of the deed running between them) In order to tack, adverse possessors must each satisfy all element of adverse possession and must satisfy the same claim of title. Distinguish Howard: land was seasonal community. Other Elements Govt Property: under common law, adverse possession doesnt run against govt but a few states has permitted adverse possession against govt land on same terms as private land. Others permit it only if possession continues for a period much longer than applies in private lands. Cotenant as owner: possession by cotenant is not considered adverse or hostile to other cotenants (rebuttable presumption of permissive use); in order to begin adverse possession, cotenant in possession must clearly claim sole ownership by either 1) physically ousting cotenants 2) taking steps that clearly notify cotenants of the claim Landlord/tenant: tenant who holds possession of leased premises with permission of ll cannot assert adverse possession Future Interest: future interest is immune from adverse possession until the interest holder is entitled to immediate possession of the land. You cant adversely possess a future interest holder because they dont have power to eject.

POSSESSORY ESTATES
FEE SIMPLE: fee simple may endure forever and is as close to absolute ownership as our law recognizes. A fee simple absolute is alienable (transferrable or assignable), devisable and descendible. - to create fee simple absolute: to A and his heirs - inheritance of a fee simple o Heirs: if a person dies intestate, the descendants real property descends to his heirs (intestacy statute) There is no such things has having heirs while you are living

o Issue: descendant/ ancestors: parents/ Collaterals: all person related by blood to descendant who are neither descendants nor ancestors o Escheat: if person dies intestate without heirs, persons real and personal property escheats to the state. THE LIFE ESTATE: Life estate can endure for the life of a person, which means the grantor can control who takes the property at the life tenants death. A can transfer the life estate to B, but B only had life estate per autre vie- an estate that is measured by As life span. - Life estate owner may collect all rents and profits generated from the land and use property as would an owner except he may not destroy the value of successive future interests. - Ambiguous language in conveyance by grantor holding fee simple absolute is judicially interpreted as transferring fee simple absolute - Trust provides tax advantages and avoids probate White v. Brown (1977) - Decedent leaves a will which reads, I wish Evelyn White to have my home to live in and not to be sold. Decedent also leaves personal property to Sandra. Decedents sisters quitclaimed any interest in the residence, but her nieces and nephews did not. White filed an action to obtain construction of the will. Evelyn White argues for fee simple. Nieces want to construe will as only leaving Evelyn life estate (under the intestacy statute, they are decedents closest heirs and have right to property if the will does not provide for remainder after life estate) o Court held the will passed a fee simple absolute in the home and her attempted restraint on alienation must be declared as void as inconsistent with nature of the estate devised and contrary to public policy. At common law, there was a presumption of life estate, but Tennessee statute reversed the presumption Problems with restraints on alienation o Makes property unmarketable o Discourages improvements on land (no value added) o If the life tenant cannot afford upkeep or doesnt value the land and another person would buy it for fair market value, this creates inefficiency and we want free market This devalues land and other lands soar in price creating inefficiency in market because people who to buy land cannot afford it. o When bank sees restriction on alienation, cant get mortgage or line of credit because bank cannot foreclose on house (constitutes a sale)

Arguments for Life Estate when conveyance is ambiguous - Grantors Intent

Given that it expressly says my home is not to be sold is NOT consistent with fee simple absolutethats consists with giving someone a limited right I wish for Evelyn to live in itseems to imply life estate o decedent knew how to make gift in fee simple without restrictions by leaving her personal propertyif she wants to do it, she knows how to and she didnt do that in regards to Evelyn.

Arguments for Fee Simple when conveyance is ambiguous - There is presumption against life estate o In order to sell house, or use it as collateral, life tenant must agree with remainderman and transaction costs are high (holdout problem) - Conflict: Life tenants want to max value nowremainderman want to max value later Waste Doctrine: purpose is to use land efficiently - Waste occurs when the life tenant permanently impairs the propertys condition or value to the future interest holders detriment. o Waste doctrine restraints present estate owner from acting in manner that unreasonably injuries the affected land thus reducing the value of the future interest o Law presumes grantor intended estate holder to pas possession of land to future interest holder in approximately the same condition as it was received. - Affirmative waste: voluntary acts that are more than trivially injurious (substantially reduces the value of the property) o Demolition of worthless improvements in order to permit productive use of land will not constitute waste - Permissive waste: negligent failure to act and take reasonable care of the property o Failure to pay property taxes, mortgage payments - Ameliorative waste: when life tenant act affirmatively to change the principal use of the land, and thereby increases the value of the land o Actionable, however, only when it is clear (1) the grantor intended for there to be no change in use (2) property may still reasonably be used in the fashion the grantor intended o Not actionable when there are changed conditions that render continued use unreasonable.
Ex. A has a life estate and B has a remainder. Both recognize that the land is best suited for lumber. A wants to know how many trees he can cut down. Tell A that he needs to use the land in such a way that it does not substantially reduce the value of the property. Remaindermen- Grantors wishes/waste: A cant cut down all the tress because we care about the interests of the remaindermen: 1) Grantor wanted B to get something of value 2) allowing A to cut down all the tress will promote A acting inefficiently- cutting trees down before they are mature, because he doesnt have time to wait.

Life Tenant- Grantors Wishes: Similarly, we dont want A to have to get Bs consent: A) B might try to extort money from A for his consent and, b) it was the grantors wish that the A get use of the land- not put A at Bs mercy. Ex: A grantor gives a life tenant a life interest in a mansion, and provides that at the life tenants death the mansion is to go to the grantors granddaughter. The life tenant wants to build an apartment building. RemaindermenGrantors wishes: If the value of the apartment house is greater than the mansion, the remaindermen could still argue that the grantor wanted her to get the mansion and she should be able to enjoin the builders. Life Tenant- Waste: The remaindermen will be better off financially with the apartment building. Furthermore, if a remaindermen could prevent the life tenant, the remaindermen might assert a claim of sentimental value even though there isnt one in an effort to get money from the life tenant. Sell the property argument: For Remaindermen: 1) Life tenant is materially devaluing land compared to the potential worth 2) if life tenant fails to sell the property now, I foreclose the possibility of future profit (opportunity cost) (Counter- time element is too speculative and gives future interest holders too much power) For Life Tenant: 1) Remaindermen might try to extort money for his consent- if remaindermen could prevent the life tenant, the remaindermen might assert a claim of sentimental value even though there isnt one in an effort to get money from the life tenant. 2) it was grantors wish that A get use of the land and not put A at Bs mercy 3) If life estate wants to sell and remaindermen attaches subjective value to the property and does not want to sell, buy life tenants interest.

Dont sell the property arguments For remaindermen: Grantors wishes: 1) Grantor wanted remaindermen to get something of value and wanted the remaindermen to get the property not just money from a sale. For Life tenant: 1) this goes counter to the intention of the grantor; he wanted us to both have the house. 2) life tenant has right to put property to his own use in absence of restriction by the grantor.

Baker v. Weedon (1972) -