Property law

I. What is Property? A. General Definition: A person may be said to hold a property interest, in the broadest sense, if he has any right which the law will protect against infringement by others. In addition to tangible property (land and chattels), courts have increasingly recognized broad categories of intangible property interests. i. Real and Personal Property: a) Real property includes land and any structure built upon it. Personal property includes all other kinds of property

Trails of tearspres. 1838 pres. Andrew Jackson -trail of tears kituhwa first cherokee village all nation melt away -great warrior saying 250,000 indians peace and land only thing they wanted w Washington fed agents were middle men for trading post Indian civilization program death pen. for selling land without author john ross Indian chief Jackson was bad news for the ind. he lied and cheated the ind.

doctrine of discovera doctrine which justified colonial powers laid claim to newly discovered lands during the Age of Discovery. under it, title to newly discovered lands lay w/ the gov. whose subjects discovered new territory. manifest designation ordain by God conquest-

character of property ownership 1.use 3. exclude 4. transfer 5.devise- leaving to heirs (heirs) who you can leave it to 6.immunity from damage 7. immunity from expropriation

Possession- is the controlling or holding of personal property w/o a claim of ownership 1.intent to possess on the part of the possessor 2. the actually controlling or holding of the property Relativity of title- is the idea that a person can have a relatively better title or right to possession than another, while at same time having a right inferior to another. First possession- one method of assessing property rights over previously unowned property is through doctrine of possession First- in-time- first in- right- establishing a priority of rights based on the time of acquiring the right in question. Subsequent possessors Johnson v. M. Intouch I. Introduction A. Characteristics of Property Ownership a. Use b. Exclude c. Transfer d. Devise e. Immunity from damage f. Immunity from expropriation B. Property rights are not absolute. Property rights are limited to ensure that property use and ownership do not unreasonably harm the legitimate, legally protected personal or property interest of other, C. Acquisition of Property (Private) a. First Possession who get there first b. Labor Theory who put to productive use c. Positivist rules set in place by a growing authority d. Utilitarianism e. Social Relations f. Personhood

g. Naturalist

II. Possession A. First Possession a. Acquisition by "Discovery i. Johnson v. M'Intosh 1. Rule: The act of discovery gives the discovering sovereign the power to extinguish the native (Indians) title of occupancy. 2. The US took over title from GB claim to title by treaty ii. Title the enforcement of ownership iii. Deed a signed writing transferring title of real property from one party to another, b. Acquisition by Capture i. Pierson v. Post 1. Rule: Property in wild animals is not only acquired by occupancy, pursuit alone does not constitute occupancy or vest any right in the pursuer. a. Ownership goes to the person who captures b. however in mortal wounding gives hunter a right to possession of the fox that is superior to another hunters intervention. Mortal wounding- 1. on a objective basis is likely to prove fatal to the animal- deprive the fox of his natural liberty. 2. shows subjectively a manifest intention to seize the animal or kill the animal. Mortal wounding is a constructive control of the animal. Constructive possession is control over a material object or property without having actual possession or custody c. custom- some cases are decided by custom at the time it must be long- continued, uninterrupted, and reasonably

asserted as right. known as doctrine of antiquity requirement

ii. Elliff v. Texon Drilling Co. 1. Rule: The owner of a tract of land acquires title to the oil or gas which he produces from wells on his own land, though part of the oil or gas may have migrated from adjoining lands. 2. The Law of Capture State that the owner of a tract of land acquires title to the oil or gas which he produces from adjoining lands. He may take those minerals w/o the consent of the owners of those lands. A. this immunity does not extend to the negligent waste or destruction of oil and gas iii. Water Rights iv. 2 type of water surface water and ground water surface water lakes, rivers, and streams A. Water Rights i. Types 1. Lakes and Streams on the Surface: all tracks of land which abut or touch the water of a lake of stream is riparian a. Riparian: own land that touch lakes a streams i. Theories 1. Natural Flow: each owner has a fundamental right to have the lake or stream remain in its natural state, free from any unreasonable a. Each riparian can use water for natural or unnatural usage that does not effect the quantity or quality of the water only on riparian land 2. Reasonable Use: each riparian can make MAXIMUM use of the lake or stream, so long as the use does not unreasonable interfere w/ the use of other riparian a. Riparian can use water on either riparian or non-riparian land

8-17-11 TORTS harmful contacta. if he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and b. a harmful contact with the person of the other directly or indirectly results. prima facie what words are the necessary elements or general elements of battery if an applicant submit the evidence necessary to prove case should prevail. plaintiff must allege and prove facts est. 5 element what is fault? intentional tort -is fault base liable negligence does not need intent for fault ---?failure to ??? Battery 1. intent 2. Harmful or offensive contact (contact is harmful or offensive) 3.w/ the person of the other or 3rd person (directly or indirectly ) harmful pain or body damage offensive- self personal or reasonable personal dignity (actually aware is not necessary intent- def. must have intended to bring some sort of physical or mental effect upon another person. ------dont need intent to harm substantive certain---a particular effect will occur as the def. action. no intent just need the effect. -amp. intended the substantive certain that this particular result will effect.--? --substantial certain that a particular effect will occur

8-22-11 Battery occurs when a person intend to cause a harmful or offensive touching to the person of another and such harmful of offensive touching occurs.--- you need both if its a dual intent and only one if its a single intent. battery may need both harmful or offensive --- it depends on whether its a dual tort or single tort dual intent- need both intent to make the contact (contact harmful or offensive) intend the result the touching and harmful offense and end result single intent- intend to harm or contact(contact harmful or offensive) (dont need to do the act just need to intend to do) min. injury still count because of the contact of physical injury. battery- harmful --pain or body damage offensive- self personal dignity or reasonable person dignitynormally objective not subjective

8-24-11 intent Garrantpurpose or desire to do something sufficient as one form of intent. substantial certain of a touching is sufficient. purpose is also sufficient and doesnt entail risk much less certain that touching will occur.

intent---find sufficient facts for intent then tell whether harmful or offensives contact dont have to complete or know what type of harm will exist intent the purpose to cause a particular result (if have to argue in this case the issue would be can a 3yr old formulate (intent) knowledge to appreciate this particular result would occur and result in this desire action) white v. muniz- whether a insane defendant can formulate the necessary intent for the contact and harmful or offensive nature of it. - liability to another for battery as if one intends to cause harmful/offensive contact w/the person results. --- here the court used dual intent to decide whether the def. mean to touch and harm the plaintiff she was not liable because only one element was met. -they are only liable for battery when they have direct requisite tortuous intent. - The insane def. must intend to harm and offend or must appreciate that his touching would be offensive. (-identify whether the defense is dual intent or single intent here it a dual intent because it intended to contact to touch and to offend or harm - Single intent or a merge intent to touch would suffice) wagner v. state (on test when see battery talk about both single and dual intent) battery only requires intent to contact and meets the definition so long as the contact is harmful or offensive (regardless of the actors intent). here dealing w single intent