Acquiring Property Flashcards
This deck covers the foundational principles of acquiring property in U.S. real property law, including methods of possession, transfer, and ownership rights. It is designed to support 1L students in mastering core acquisition doctrines. (18 cards)
Define:
Rule of Capture
Property is only acquired by capture and control, and pursuit alone does not vest any right in the pursuer.
Captured and unowned property becomes property of the person who actually controls it.
Summarize the holding of:
Pierson v. Post
(N.Y. 1805) A hunter’s pursuit of a wild animal does not confer ownership; actual capture or killing is required for possession.
In Pierson v. Post, Lodowick Post’s hunting dogs began chasing a fox. Before Post could capture it, Jesse Pierson killed the fox and took it. Post claimed he had a right to the fox because he initiated the hunt.
The court disagreed, holding that mere pursuit does not grant property rights in wild animals — only physical control through capture or killing does.
Define:
The Principle of First in Time
Where a thing is unowned, the first person to take possession of a thing owns it.
Note, however, that a prior possessor prevails over a subsequent possessor.
Summarize the holding of:
Ghen v. Rich
(1881 D. Mass) A whaler who kills a whale and marks it according to custom gains property rights, even if the whale is later recovered by another. Courts may consider custom when determining ownership.
In Ghen v. Rich, Ghen killed a whale using a bomb lance, a tool that leaves identifying marks. The whale washed ashore 17 miles away and was found by Ellis, who sold it at auction. Ghen sued for damages.
The court upheld the whaling industry’s long-standing custom that the killer of the whale retains ownership, provided it is properly marked, even if recovered by someone else.
Define:
Constructive Possession
The legal possession of an object that is not in the person’s direct physical control.
Landowners have constructive possession of things on their land.
Summarize the holding of:
Keeble v. Hickeringill
(1707 English case) A landowner has a right to use their land to capture wild animals, and intentional interference with that use is not permissible.
In Keeble v. Hickeringill, Samuel Keeble set up duck traps on his pond for commercial hunting. Hickeringill, from his own property, fired guns to scare the ducks away.
The court found this behavior unlawfully interfered with Keeble’s livelihood, affirming that while wild animals are not owned until captured, malicious disruption of a lawful business is not permitted.
Define:
Acquisition by Creation
The general principle that, if you are the first to create something, then that something is generally yours to exploit.
Similar to John Locke’s labor theory
Define:
Right of Publicity
The general principle that individuals have the exclusive right to control and profit from the commercial use of their identity.
Summarize the holding of:
Moore v. Regents of the University of California
(1990 Cal.) Individuals generally do not have a property right in their discarded body parts after removal during medical procedures.
In Moore v. Regents of the University of California, a medical center used John Moore’s cells to develop a profitable cell line without his consent.
The court ruled Moore could not claim property rights over his removed cells because he had no expectation of retaining them and recognizing such rights would hinder medical research.
The decision emphasized that Moore could not sue for conversion without demonstrating actual interference with a legally recognized property interest.
Dissent to majority opinion questioned how Moore lost possession of his body parts as soon as they were removed from his body.
Define:
Right to Exclude
Every person has the right to exclusive enjoyment of their property for any purpose which does not invade the rights of another person.
What are the four general elements of adverse possession required?
- Actual and exclusive possession: Must use the land is a manner that other would regard as exercising exclusive dominion.
- Continuous possession: Must occupy the land continuously. The specific length of time varies by jurisdiction.
- Possession under claim of title: Differs by jurisdiction, but most agree that the state of mind of the occupier doesn’t matter. Minorities of states require that you believe, in good faith, that you own it, or that you must know that you do not own it.
- Open and notorious possession: Possession must be visible to others as an exercise of exclusive dominion
In some jurisdictions, there is a fifth element: The adverse possessor must pay property taxes on the property during the period of possession.
When is tacking permitted, in the context of adverse possession?
Tacking is only permissible if the successive claimants are in privity with each other.
Who owns abandoned property?
When an owner voluntarily intends to relinquish all rights, title, and interest in their property, it is unowned and the first possessor becomes its owner.
What is lost property?
Property with which the owner unintentionally and involuntary parts due to neglect or inadvertence.
Who owns lost property?
The finder of lost property obtains title sufficient to prevail over every other claimant except the true owner.
What is mislaid property?
Property that the owner voluntarily puts into a particular place (usually public), but then they forget where it is.
Who owns mislaid property?
Mislaid property generally belongs to person who holds a duty to hold the property in a case the person comes back to claim it (often, a shop owner).
What are the three requirements of possession by gift?
- The donor must intend to make a present transfer of an existing interest in the property.
- The donor must deliver possession to the donee with the manifested intention to make a gift.
- Donee must accept the gift.
