I.

Acquisition and Claim Scope

a. The legal interest in practicing a calling.
i. A property owner has the right to lawfully use his property for profit
without malicious interference of others
ii. Keeble v. Hickeringill (Decoy Duck Pond)
1. Facts:
a. Action upon the case for damages.
b.  (Keeble) claims to have lawfully possessed land on
which a decoy pond was located and designed to catch
large numbers of wild ducks, which benefited him.
c. On several occasions,  (Hickeringill) purposefully
discharged a gun to scare the ducks away. Thus, robbing 
of his profit and enjoyment of his land.
2. Holding / Reasoning:
a. Held for 
b.  committed act of trespass against  because everyone
that has property may employ it for pleasure and profit
(e.g., alluring and catching to a given pond using decoys)
c.  interfered and disturbed lawful use of ’s land
3. RULE: An action upon the case exists where a (1) violent or
malicious (2) act (3) causes interference with a ’s right to (a)
practice a trade and/or (b) use their land and (4) results in harm to
.
b. The rule for capture for personal goods.
iii. The first party to physically possess or capture unowned personal
property/chattel becomes its owner (Rule of First Possession)
1. If wild animals are captured (i.e., under manual control), they
usually belong to the captor. But capture is required; hot pursuit is
insufficient. (Pierson v. Post) (Claim Certainty > Labor)
2. If wild animals are mortally wounded or trapped (i.e., capture is
virtually certain), they are treated as captured. Conversely, if a
wild animal is in the process of being wounded or trapped (i.e.,
capture is not virtually certain), they are not treated as captured.
(Keeble v. Hickeringill)
3. If wild animals are in the process of being entrapped, a competitor
may interfere with the original pursuer’s activity to try and capture
them. A bystander who does not want to capture the animal,
however, cannot interfere. (Ghen v. Rich) (Labor > Claim
Certainty)
iv. Pierson v. Post (Fox Hunting)
1. Facts:
a. Action of trespass on the case.
b.  (Post) was in the process of hunting a fox across
unpossessed land when  (Pierson) killed and carried off
the same fox.

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 c.  asserted  knew he was hunting the fox when 
captured it in view of  to prevent him from doing the
same.
2. Holding / Reasoning:
a. Held for 
b. The fox was a wild animal. Therefore, property in it could
be acquired by occupancy only.
c. However uncourteous the conduct of  towards  may
have been, the actions produced no injury or damage for
which a legal remedy could be applied.
d. Actions of  did not amount to occupancy (i.e., capture) as
he merely pursued the wild animal.
3. Dissent:
a. Prioritized the labor exerted in pursuit of the wild animal
(i.e., classic claim certainty v. labor valuation debate).
b. Concluded intruders should not be permitted to take
possession of a wild animal after another has exhausted the
time and energy in pursuit of the beast.
4. RULE: Seeing, starting after, or pursuing wild animals without
capture should not afford an action against those who have
captured, killed, or mortally wounded the animal. Allowing such
an action would provide a “fertile” and unmanageable source of
litigation and make claims less certain.
c. Variations on the rule of capture.
v. If custom upholds the policy of a legal statute or doctrine (in this case,
productive labor and certainty), the law may be superseded by custom.
vi. Ghen v. Rich (Whaling Industry Custom)
1. Facts:
a. Action of libel to recover value of whale
b.  (Ghen) shot and killed a whale, which was subsequently
found stranded on a nearby beach and sold at auction to 
(Rich). No word of the beached whale was sent to
Provincetown (nor to ) as was the custom of the
community/industry at the time.
c. The custom on Cape Cod had been that the individual
responsible for killing the whale with a marked bomb lance
owned the deceased wild animal.
2. Holding / Reasoning:
a. Held for 
b. The deceased (or captured) whale was the property of its
captor () because he had taken actual possession of the
animal by killing the animal, anchoring it, and leaving the
mark of appropriation evident in the marked bomb lance.
3. RULE: When a long-standing industry custom represents a
reasonable act of first possession, property claims based on this

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 custom will be upheld. ("reasonable" here is a legal test that refers
to the substantive policies that law is trying to achieve)
a. Note: Rule of Capture/Mortal Wounding does not apply
here b/c the whalers were not still pursuing the whale,
reducing the certainty of capture.
b. Note: Customs for determining possession are only
recognized in narrow conditions.
vii. Sunken vessels, treasure troves, and oil and gas.
1. Rule of First Possession applies to ferae naturae minerals like oil
and gas. Conversely, stationary minerals like gold are generally
within the scope of ownership of the attached land.
a. Oil and gas are considered “captured” when they physically
enter the pipes of the captor (i.e., possessor).
2. Law of Maritime
a. Ownership transfers to the first possessor but only if the
vessel was abandoned (i.e., the owners and/or their insurers
do not still hold claims to the vessel).
i. Property is abandoned when an owner manifests an
intention to relinquish all future claims of
possession or ownership.
3. Law of Salvage
a. When a vessel is not abandoned (i.e., the owner or insurer
maintains a claim of possession or ownership), the
successful “salvor” may claim a percentage of the value of
the vessel/cargo (i.e., a salvage fee) but does not acquire
ownership or full value.
4. Law of Finds
a. To maintain possession over a shipwreck, one must provide
notice and prove due diligence.
b. Eads v. Brazelton (Greedy Salvager)
i. Facts:
1. Action for injunctive relief
2.  (Brazelton) found a shipwreck on the
Mississippi River, marked it with a buoy,
and left to pursue another shipwreck.
3.  came back to find  (Eads) was using a
submarine to salvage the vessel himself.
ii. Holding / Reasoning:
1. Held for 
2. No possession despite presence of a marker
indicating previous discovery.
iii. RULE: Notice is not sufficient to secure possession;
due diligence in exerting full control over a resource
is also necessary.
c. Note: More recent technological advancement calls into
question whether “telepossession” or “telemarking” is

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 sufficient to establish notice and due diligence and secure
possession under the rule of capture.
viii. Homerun baseballs.
1. Pre-possessory and first possessory interests in chattels (i.e.,
homerun baseballs) are greater property claims against the rest of
the world.
2. Popov v. Hayashi (Baseball)
a. Facts:
i.  (Popov) caught a homerun baseball but was
mobbed by the crowd and lost it.  (Hayashi)
picked up the ball.
ii.  claimed he was the first possessor of the homerun
baseball.
b. Holding / Reasoning:
i. Held ½ value should be awarded to both  and 
(i.e., wimped out with a Solomonic judgment).
ii.  established pre-possessory interest;  established
first possessory interest.
d. Land, the rule of occupancy, and the rule of discovery.
ix. For unclaimed land, there is common law establishing that the first party
to discover the land has the best claim.
1. This is an old school theory, however, as the common law is
generally superseded by statute because there is more value in
land. (Higher Value  Favoring Claim Certainty)
x. The rule of occupancy.
1. To establish possession via occupation of a piece of land, there
must be (1) an act (or labor) of occupation (2) manifesting (to the
reasonable public) that the land is subject to the proposed
occupier's will and dominion.
a. Acts manifesting occupation could include:
i. Occupation
ii. Substantial Enclosure (Brumagim v. Bradshaw)
iii. Cultivation
iv. Or Appropriate Use
b. Acts to transform or improve the land are more compelling
acts of occupancy than constructing boundaries (e.g.,
fences) around the land.
c. Occupancy can be difficult to determine and is used mainly
in cases where land has “dropped through the cracks;” it is
only applied in a small number of situations—states usually
rely on statutes for determining ownership of land.
xi. The rule of discovery.
1. Being the first to claim something; discovery requires that one be
the first to actually possess an unclaimed thing. Discovery
establishes a unique right to possess a thing (e.g., land).

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 2. Chains of title are subject to the rules of privity (newer title owners
stand in privity with the older holders of the title)
a. Those standing in privity with the first possessor (i.e.,
discoverer) enjoy the right to first acquisition.
3. Discovery differs from occupancy in that it relates to title rather
than possession. Discovery is about establishing ownership by
dominion; occupancy is about establishing ownership by
possession.
a. Note: Both discovery and occupancy are narrowly
applicable and, in most cases, have been superseded by
statutory schemas.
4. The principle of discovery gave the government the exclusive
power to extinguish the Indian title of occupancy. See Johnson.
5. Johnson v. M’Intosh (Native American Land Loss)
a. Facts:
i. Action for ejectment from land.
ii. Piankeshaw Indians sold tribe land to father and
grandfather of  (Johnson). Later, Illinois and
Piankeshaw Indians entered into treaty with the
U.S., retaining certain lands as reservations but
ceding others to the federal government.
iii. In 1818, U.S. sold  (M’Intosh) some of the lands
that had been previously granted to  by the
Piankeshaw.
b. Holding / Reasoning:
i. Held for 
ii.  does not hold sustainable title in U.S. courts.
When the U.S. gained independences from England,
the ceded territory was occupied by the Indian tribes
but the exclusive right of the U.S. to extinguish the
tribes’ title and grant soil was never doubted.
iii. As the U.S. government had conquered the Indian
tribes, neither the tribes nor  had title (or claim) to
the soil.
c. RULE: The Native American tribes had the right to occupy
the land and to use the land but did not retain the right to
convey the land
i. Policy Implication: Preservation of peace. By
following this rule, European nations would avoid
disputes over land – whoever discovered it first had
rightful possession of it. Principle of First in Time
justifies right of discovery; argued that this was
efficient as reward to productive labor.
xii. Note on land grants from the federal public domain.

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 1. Some of the original thirteen colonies had charters entitling them
to land extending from the Atlantic coast to the Mississippi River
while others had more limited charters to lands just on the coast.
2. States with claims to western lands agreed to cede lands to the
newly formed federal government—the beginnings of federal
public domain. From then, the vast quantity of land was held by
the federal government for disposition and eventual formation of
new states.
3. The common law rule of discovery (Johnson) and rule of
occupancy (Brumagim) were superseded by statute.
a. Ordinance of 1785: broke public land into townships made
up of particular sections, which were then auctioned off or,
if not auctioned, sold to squatter-settlers (first introduction
of squatter’s rights).
b. Homestead Act of 1862: Granted title to those who moved
out west and inhabited/cultivated a tract of land for five
years.
e. Res composition and accession
xiii. Ask these questions:
1. Is something separable from a person (i.e., not a personal right)?
2. Is a resource a fit candidate for private property (at all)?
[Public/Private Issue]
3. Assuming a resource is a fit candidate for private property, what is
the "resource"? [Accession (Merrill) or Entitlement Composition
(Smith) or Claim Scope Delineation (Claeys)]
4. Assuming a resource is a fit candidate for private property, how is
it acquired? [Acquisition]
a. See the rule of occupancy, rule of discovery, and rule of
capture.
xiv. Doctrine of Accession (or Claim Scope Delineation)
1. If someone owns A, then that person owns some closely related
and in some sense subordinate resource, B.
a. The small resource is part of the legal claim for the big
resource.
b. The new/surprise resource is part of the legal claim for the
known resource.
2. Claeys dislikes both those rationales/observations and instead
prefers the fructus industriales doctrine because it rewards labor.
a. Stoltzfus v. Covington County Bank (Crop of Corn)
i. RULE: With reference to crops which are
considered to be fructus naturales, and crops which
are considered to be fructus industriales, in general
it is held that the latter are chattels, while the former
are part of the realty and continue to be so until
severed from the freehold.

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 1. Annual Products = Industrial / Trees &
Grass = Natural
xv. Doctrine of Increase
1. Partus sequitur Ventrum: the offspring follows the mother (RULE)
a. Both policy objectives—claim certainty and labor—support
the rule of increase.
b. Generally, if an individual owns chattel and the chattel
have offspring, that offspring is automatically the property
of the parent’s owner.
c. Ownership of the smaller thing runs with ownership of the
older, larger thing it came from.
d. Separate from accession (or claim scope delineation)
because the parent and child are separate claim scopes and
do not become one property.
xvi. Ad Coelum Principle
1. To whomever the soil belongs, he owns also to the sky and the
depths.
2. Edwards v. Sims (Cave Exploration)
a. Facts:
i. Action for writ of prohibition (to prevent  (Sims)
from enforcing his judicial order).
ii.  (Edwards) owns land directly above a
subterranean cave.  is a judge who previously
ordered the cave be examined (i.e., surveyed) to
determine facts of another case (Edwards v. Lee).
iii. In Lee, the issue was whether the cave travels under
Lee’s land as well. If so,  would be trespassing on
the Lee property while profiting from the cave.
b. Holding / Reasoning:
i. Held for 
ii. Ad coelum: Lee, as owner of the soil, is entitled to
ownership of the caves intersecting with his
property line and the court is entitled to order
review of the cave to determine scope of
intersection, if any.
iii. Policy Implication: Certainty of claims may
facilitate property because clear property rights
encourage private contractual
negotiations / partnerships.
c. Dissent:
i. Edwards has maintained the cave and thus should
get rewarded (Labor Policy). If there had been no
entrance, then the social utility of the cave would
have never been realized.
xvii. Fixtures

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 1. A thing or things which were originally movable, but after their
annexation to or association with the land, are regarded as part of
the land.
a. General Rules:
i. If the objects were added with the intention of being
permanent  fixtures
ii. If the objects were added with the intention of
increasing the value of the real property 
permanent
iii. If the person adding the objects would likely gain
some benefit from the objects being permanent 
permanent
iv. If it is hard to remove  fixture
v. Depends on the relevant circumstances such as the
nature of the item and whether a reasonable person
would consider the object a fixture or permanent.
b. Test for Fixtures (different from ad coelum and increase
because it is a standard and not a bright line rule):
i. Whether the article is annexed to the realty
ii. Whether the article enhances the use of the part of
the realty to which it's annexed AND
iii. Whether the parties intended that the article be
treated as an accessory to the real estate
1. Use instead: If the article is annexed (under
the first factor), presume that the public
intention is for the article to be a fixture
2. Strain v. Green (Crazy Seller Stealing Stuff)
a. Issue: Are mirrors and light fixtures permanent additions to
the home which should transfer in ownership to subsequent
purchasers of the home?
b. Holding: Yes. The three criteria (standard) for a fixture are:
i. Actual annexation to the realty;
ii. Application to the use or purpose to which that part
of the realty with which it is connected is
appropriated;
iii. Intention of the party making the annexation
(intention must be inferred from the owner’s
actions; his state of mind may not come into play in
a court of law)
c. Fixture represents a transition from a chattel to real
property
d. Note: What is a fixture changes over time; what was once a
luxury is now a necessity (e.g., water heater).
e. The presumption that an owner of realty intends to enrich
the realty by annexing furniture or machinery thereto is not

8
 overcome by the owner’s secret intention that the
annexation be a removable chattel.
f. The concept of possession and issues in sequential possession.
xviii. Rule of Finders
1. Generally, the finder of lost property has a better right to that
property than anyone but the true owner.
a. Armory v. Delamirie (kid likely stole brooch, jeweler took
it from him, kid sued, kid won).
2. This extends beyond the first finder. The second finder of property
has better rights to that property than any but the true owner and
the first finder.
a. Clark v. Maloney (logs were found by A, then found by B,
A sued B, B won)
3. One can only take property from someone if they have a superior
claim to that property.
4. In common law, one cannot take property from a thief since the
thief still has better rights to the stolen property than any but the
true owner.
a. Anderson v. Goldberg (guy cut down trees on someone
else’s land, third party stole them, thief sued)
xix. Haslem v. Lockwood (Manure, How Fun)
1. When the right to personal property by occupancy exists, it exists
no longer than the party retains the actual possession of the
property or until the party appropriates it to their own use by
removing the property to some other place.
2. If the party leaves the property at the place where it was discovered
and does nothing whatsoever to enhance its value or change its
nature, the party’s right to occupancy is unquestionably gone.
3. Rationale:
a. That the manure was not to be regarded as so incorporated
with the soil as to be real estate but was personal property.
b. That it belonged originally to the owners of the animals that
dropped it but was to be regarded as abandoned by them.
c. That being abandoned property, the first occupant who took
it would have a right to appropriate it.
d. That after  had added materially to the manure’s value by
his labor in raking it into heaps, he was to be regarded as
entitled to it against any person having no title.
e. That he was to be allowed a reasonable time to take it
away.
f. That twenty-four hours, the time allowed by statute for the
removal of seaweed gathered into heaps, was not an
unreasonable time to be allowed in such a case.
xx. Armory v. Delamirie (Chimney Sweep v. Jeweler)
1. Facts:

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 a. Chimney sweep finds jewel and then takes it to a jeweler to
be weighed. Jeweler refuses to give the jewel back.
2. Holding / Reasoning:
a. Held for 
b. The finder of lost property has the right to possess the
property against all the world but the true owner. Thus, if a
third party wrongfully converts the property, the finder may
recover the property if it is still in possession of the
wrongdoer, or the finder may recover the full value of the
property from the wrongdoer.
c. Note: Claeys states this legal rule was made much broader
than it needed to be to manage the controversy before the
court.
d. Policy Implication: Provides certainty to who was in
possession and rewards the prior possessor (reducing self-
help). High transaction costs may prevent the court from
finding the title owner.
xxi. Clark v. Maloney (Logs Everywhere)
1. Facts:
a.  (Clark) found and tied logs in Delaware, but then loses
them.  (Maloney) then gathers them and  sues claiming
the logs were his.
2. Holding / Reasoning:
a. Held for 
b.  may have lost the logs, but he did abandon them. He
maintains a special property in the logs and that enables
him to keep them against all the world but the rightful
owner.
3. RULE: The finder of a chattel, though he does not acquire an
absolute property right in it, has such a right as will enable him to
keep it against all but the rightful owner. The rights of the finder of
property to possession are not changed by the loss of the chattel.
a. Policy Implication: Upholds finder’s doctrine and prevents
self-help.
b. Note: There is a known grey area between lost property and
abandoned property. Be mindful of it when grappling with
questions of finders and their rights.
xxii. Anderson v. Gouldberg (Trespassing Lumberjack)
1. Facts:
a.  (Anderson) trespassed on someone else’s land and cut
down several trees without the consent of the owner. He
marked them with his initials and hauled them to a mill.
b.  (Gouldberg) then converted them for his own use.  now
sues  for market value of logs.

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 2. RULE: A possessor, even a wrongful possessor or thief, has the
right to possession as against all but the true owner and is entitled
to recover either the thing or the thing’s value from the converter.
a. Policy Implication: Any other rule would result in an
endless series of unlawful seizures once property had
passed out of possession of the rightful owner.
g. What happens when different theories of acquisition, claim scope, and
possession point in different directions?
xxiii. Fisher v. Steward (To Bee or Not to Bee)
1. Facts:
a. Action for trover for swarm of bees.
i. Trover: common law action to recover the value of
personal property that has been wrongfully disposed
of by another person
b.  (Fisher) found a swarm of bees in a tree on ’s
(Steward’s) land and marked the tree for reference. 
notified  of the bees, but  took the honey for his own
use.
c.  sued to recover the value of the honey and the swarm of
bees.
2. Holding / Reasoning:
a. Held for 
b.  has done nothing that entitles him to ownership of the
bees. Locating the swarm alone does not give rise to
ownership, nor does marking the tree since the act
amounted to trespass.
c. The bees can be considered attached to ’s land and as
such are rightfully ’s property.
3. RULE: Ratione soli – “according to the soil” – property rights 
landowners for resources found on their land
xxiv. Briggs v. Southwestern Energy Production Co. (Fracking)
1. Facts:
a. D did hydraulic fracturing to get oil, including oil that was
under P’s property
2. Issue:
a. Whether the rule of capture immunizes an energy developer
from liability in trespass, where the developer uses
hydraulic fracturing on the property it owns or leases, and
such activities allow it to obtain oil or gas that migrates
from beneath the surface of another person’s land
3. Holding:
a. D did not trespass. Oil and gas, because of their “fugitive
and wandering existence” are subject to the rule of capture
(like wild animals). This means there is no liability for
drainage of oil and gas from under the lands of another so
long as there has been no trespass
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 b. This is not the same as drilling diagonally or horizontally
into someone’s land, which would be trespass. Since there
was no physical invasion of the land, ad coleum
principle does not apply
4. Dissent
a. The dissent concurs with the majority’s reasoning, but
thinks the case should be remanded for factual
determination on whether fracking = physical invasion
b. Hydraulic fracturing is not automatically exempt from the
rule of capture, it is assumed to be subject to the rule of
capture unless there is evidence of a physical invasion.
xxv. Goddard v. Winchell (Meteor)
1. Facts:
a. Action for replevin for return of aerolite (i.e., meteorite)
i. Replevin: action whereby seized goods may be
provisionally restored to their original owner
pending the outcome of an action to determine the
rights of the parties
b. Aerolite fell out of the sky and became embedded in ’s
(Goddard’s) land/soil. Third party dug up the aerolite and
proceeded to sell it to  (Winchell).
2. Holding / Reasoning:
a. Held for 
b. While third party acquired the property right to the meteor
through capture (i.e., occupancy), the landowner acquired
property right through accession.
3. RULE: Rationale Soli— has constructive possession of things on
his land as against trespassers. Whatever is affixed to the soil
belongs to the soil. A permanent annexation to the soil, of a thing
in itself personal, makes it part of the realty.
a. Meteor should be treated just as other stationary minerals
(e.g., gold) are despite how it became part of the land.
b. Policy Implication: Treating a meteor differently could
cause more trespass when more individuals seek out items
falling from the sky on others’ land.
II. Public Property
a. Introduction to navigable waters.
xxvi. TBD (Past Liam didn’t do the work on his reading notes for this…)
b. Introduction to public trust doctrine.
xxvii. Those lands held in public trust maintain a title different in character from
those lands intended for sale that the state holds. Further, these lands held
in public trust maintain a title different from those lands open for
preemption and sale that the U.S. government holds.
1. Those lands held in public trust maintain a title held in trust for the
people of a given state.

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 xxviii. The state may grant use of the public trust property for wharfs, docks,
piers, etc. but the control (i.e., the title) remains under the control of the
state (and can never be lost).
1. Can also determine if land is held in public trust based on whether
it is used for commerce.
xxix. Oregon ex rel. Thornton v. Hay (Fences & Beaches)
1. Facts:
a.  (Oregon) sought to enjoin  (Hay), owners of a
beachfront tourist facility, from building fences on areas of
the beach called “dry sand” areas.
2. Holding / Reasoning:
a. Held for 
b.  should be enjoined because the beaches have been
customarily used by the public.
3. RULE: The rule of custom—arising by common consent and
uniform practice—becomes the law of the place or the subject
matter to which it relates.
a. Seven elements of custom:
i. That the usage be ancient
ii. That the usage be without interruption
iii. That the usage be peaceful and free from dispute
iv. That the usage be reasonable
v. That the usage be subject to visible boundaries
vi. That the usage be obligatory (that the individual
landowners cannot decide whether to allow the
public to use the dry sand area adjacent to their
property)
vii. That the usage is not contrary to other laws and
customs
xxx. Rose Article
1. Uses classical economic justifications for the right to public
property
a. Highways, for example.
i. If nobody owns the highway, then it will be
neglected.
ii. If one private person owns the highway, then they
might take advantage and charge a ridiculous price
to use it.
b. Should be inherently public property.
i. Waterways, similarly, have properties of inherently
public property.
xxxi. Justinian Institutes & International Law Treatises
1. Physical resources may be broken into separate categories:
a. Some items are common to all (e.g., city walls, roads,
government buildings)
b. Some items belong to a society or a corporation

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 c. Some items may be available for private ownership, while
others cannot
III. The possessory interest in control over land (and its limits)
a. The prima facie action for trespass to land
xxxii. Elements of Trespass to Land
1.  commits an act of physical invasion on ’s close
a. Act: any violation of another’s land
b. Close: the property and all things acceded to it, above and
below
2. Intent
a. Intent to commit the act leading to trespass OR
b. Act with reasonable knowledge that the act is substantially
certain to result in a trespass BUT
c. Involuntary act (e.g., seizure) does not satisfy intent
3. Actual damages are not required
a. Jacque v. Steenberg (delivery company trespassed on ’s
property without consent, still liable for trespass)
xxxiii. Defenses to Trespass to Land
1. Necessity (Public or Private)
2. Consent (Absolute Defense)
3. Adverse Possession
a. If you prove adverse possession, then you are not liable
because the land is now yours.
4. Custom
a. If people are customarily allowed on your land for some
purpose, usually due to public policy, then landowner must
allow it.
i. For example, allowing hunters onto unenclosed and
unimproved land.
5. Limited ad coleum
a. Trespass is acceptable if the trespass does not fall within
the true close of the 
i. Hinman v. Pacific Air Transport (guy was mad at
planes flying over his house, but court said that
airspace was not within ’s close)
6. Public Policy
a. There may be public policy considerations that courts will
consider in allowing a trespass
i. State v. Shack (court held union reps. trespassing on
land in order to talk to migrant workers were not
liable for trespass since they were providing
valuable to the public)
xxxiv. Jacque v. Steenberg (Delivery Truck Cutting Corners)
1. [Trespass = No Harm, Strong Liability]
2. Facts:

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 a. Delivery truck cut through ’s property because it was the
most efficient route.
3. Holding / Reasoning:
a. Held for 
b. Court recognizes ’s right to exclude others from private
property.  liable for punitive damages despite no actual
damages because nominal damages are not sufficient to
deter a trespasser.
4. RULE: You do not need to prove harm for trespass; violating
owner’s right to exclude is sufficient. Punitive damages allowable
for intentional trespass.
a. Intentional trespass to land is an intentional tort
b. The law does not recognize an “efficient invasion” (cf.
efficient breach in contract law)
c. Policy Implication: People will invest more in protected
land
i. Reinforces privacy/autonomy/liberty, physical
safety, and security expectation (all intangible)
ii. Right to allow others to cross as you see fit = strong
right to exclude
iii. Avoid need for costly self-help
iv. Simple and easy to enforce
b. Trespass and Airspace, Necessity, Rights of Way, and Public Policy
xxxv. Ad coleum doctrine: whomever owns the soil owns also to the sky and to
the depths
1. Limits on the right to exclude:
a. Necessity
b. Custom (rights of way implied by sustenance)
c. Policy Limits
xxxvi. Hinman v. Pacific Air (Aerial Trespass)
1. Facts:
a.  (Hinman) owns property next to an airport. ’s (Pacific
Air) planes take off and land roughly 100 feet above ’s
property.
2. Holding / Reasoning:
a. Held for 
b. The air, like the sea, is incapable of private ownership
except to the extent it is actually used or occupied
c. Note: Court did not follow ad coleum doctrine
3. RULE: For aerial trespass, there needs to be actual damage. If 
can prove harm, then they have an action.
xxxvii. U.S. v. Causby (Government Airspace)
1. Note: Congress has effectively asserted the federal government
controls the airspace. Control over the air above 100 feet did not
constitute a taking.

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 a. Would be a taking if it were so low as to interfere with the
landowner’s user and enjoyment (i.e., nuisance)
xxxviii. Necessity
1. Necessity cause by an “act of God” or other disaster resulting in an
inability to control movement justifies behavior that would
otherwise have been trespass.
2. Ploof v. Putnam (Ruthless Dock Owner)
a. Facts:
i. Boatowner uses dock of another during a storm, but
the servant of the dock owner untethers them.
Boatowner and others are injured. Boatowner sues.
b. Holding / Reasoning:
i. Held for 
ii. The cost to  of letting  moor the boat was much
less than the cost of refusing.
c. RULE: Necessity is a partial defense to trespass to land.
i. Partial because if  had allowed  to moor, 
would have been liable for any actual damage to the
dock.
ii. Affirmative right to access when necessity is
present.
iii. Necessity must involve effort to prevent death or
bodily injury.
xxxix. Custom (Rights of Way Implied for Sustenance)
1. The law of trespass does not prevent a hunter from hunting on
unenclosed land without the landowner’s permission.
2. McConico v. Singleton (Elmer Fudd Hunting Rabbits)
a. Facts:
i. Trespass action against 
ii.  hunted on ’s unenclosed/unimproved lands
b. Holding / Reasoning:
i. Held for 
ii. Court recognized the custom of hunting, so no
trespass. Custom had been that hunters maintain a
right to hunt on unenclosed land and that  had an
implied easement on sustenance related to land use.
c. Note/Policy Implication: Historical social utility—hunter
provides food in 1818. No longer true today, so society is
less sympathetic to need for open hunting and more
concerned for need of certainty in property rights.
xl. Public Policy Limitation
1. Property rights do not include the right to refuse access to
individuals providing government services to workers who are
housed on the property. (This is not agreed upon across
jurisdictions.)

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 a. Policy: Property owners are generally given exclusive
control of the property for the sake of the most efficient
use, but lawmakers may limit exclusive control when
public policy warrants it.
2. State v. Shack (Migrant Field Workers)
a. Facts:
i.  (Government employee) sought to meet with
migrant farmworker housed on ’s property. 
went upon ’s property to meet with worker and
inform him of federal rights.  stopped  before
meeting with worker and said no meeting would
happen without  present.
ii. When  insisted they had a right to meet with
worker,  called state trooper and issued formal
complaint of trespass.
b. Holding / Reasoning:
i. Held for 
ii. Government employees did not invade any
possessory property right of property owner. Thus,
the conduct of the  was beyond the reach of the
trespass statute.
c. RULE: Ownership of real property (i.e., land) does not
include the right to bar access to governmental services
available to migrant workers.
c. Adverse Possession
xli. Elements
1. Actual Possession
a. Rule: Possession must be of character that community
would reasonably regard adverse possessor as true owner
b. Look for improvement (i.e., development through
expenditure of money or labor)
c. Enclosure—a signaling function
d. This element starts the clock on the statute of limitations
i. Note: Disabilities
1. If the true owner is under legal disability
(e.g., insanity, minor, imprisoned) when
adverse possession begins, then the statute
of limitations does not run until true owner
recovers
2. Open and Notorious
a. Rule: Must provide reasonable notice to the legal title
owner that adverse possessor is on the property
3. Exclusive
a. Rule: Must use the property alone, without the consent of
any other party (i.e., true owner) and expressed right to
exclude others

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 4. Hostile and Under Claim of Right
a. Rule: Must believe, or act as though you believe, that an
adverse possessor owns the property
i. Note: Jurisdictions split as to whether hostility
requires maliciousness, though the majority of
jurisdictions agree it does not
5. Continuous and Uninterrupted
a. Rule: Must use the land in a continuous manner in keeping
with the nature and regular usage of the land
i. Needs to provide title owner with sufficient time to
bring ejectment claim
ii. After that, the purpose is to bar stale claims 
Certainty
b. If an adverse possessor transfers full title to another, the
adverse possession continues uninterrupted between the
two parties, since they are in privity with one another
(Howard v. Kunto)
xlii. State of Mind
1. Majority View: Does not ask about the internal state of mind of the
adverse possessor (Objective Test)
2. Bad Faith Adverse Possessor: Requires knowing trespass (Maine
Rule)
xliii. Purposes
1. Ensure efficiency of title system
2. Punish nonfeasant or delinquent landowners
3. Reward those who use land (reward labor)
4. Quiet titles and reduce transaction costs in determining titles that
have accumulated for a given tract of land over a long period of
time (i.e., clear away old claims and increase efficiency)
5. Respect reliance interests that adverse possessor may have
developed
6. Discourage true owners from “sleeping” on their rights or failing to
act as a gatekeeper to their property
xliv. Against the Government
1. Traditionally “no time runs against the king”
2. Congress can determine at its own discretion the terms and
conditions for permitting squatters to obtain title to public land
(i.e., done via statute)
xlv. Scott v. Anderson-Tully
1. Facts:
a. Herman Scott (Scott) filed suit seeking damages after
Anderson-Tully Company removed timber from a 20-acre
parcel of land Scott claimed to own. Scott also sought to
quiet and confirm title and to enjoin Anderson-Tully from
entering the land.

18
 b. The chancellor dismissed Scott's claim, finding that
Anderson-Tully had acquired title to the twenty acres
through adverse possession. Scott appealed, arguing that
Anderson-Tully presented insufficient evidence to prove a
claim of adverse possession, under Miss. Code Ann. § 15-
1-13.
2. RULE: Ten (10) years' actual adverse possession by any person
claiming to be the owner for that time of any land, uninterruptedly
continued for ten (10) years by occupancy, descent, conveyance, or
otherwise, in whatever way such occupancy may have commenced
or continued, shall vest in every actual occupant or possessor of
such land a full and complete title.
xlvi. Howard v. Kunto (1970)
1. Facts:
a. Description on deeds did not match the house. (Deed says
X, house actually on Y)
2. RULE: Tacking is allowed for privity for adverse possession when
there is a reasonable connection between parties (i.e. all got deed
w/ wrong description)
3. Policy Implication: Early certainty as to the location of land
ownership is beneficial. The technical requirements of privity
should not be used to upset the long period of occupancy of a good
faith purchaser who received an erroneous deed description. In this
case there is sufficient privity to allow tacking.
4. Continuity of Possession
a. The requisite possession to maintain a claim for adverse
possession requires such possession and dominion as
ordinarily marks the conduct of owners in general in
holding, managing and caring for property of like nature
and condition. This property is a summer vacation home
and there was continuous possession even though the
property was used only in the summer months.
xlvii. Adverse Possession for Chattels
1. Doctrine still applies, but because chattels are movable, the open
and notorious elements cannot be satisfied
a. Discovery Rule: as long as the owner does their due
diligence in trying to find the chattel, they delay the starts
of the statute of limitation (O’Keefe v. Snyder)
b. Discovery rule shifts responsibility to the true owner, who
must prove due diligence
c. Due diligence is a standard. Due diligence in attempting to
find a soccer ball is different than trying to find lost art or a
lost car
2. Mannillo v. Gorski (Intruding Sidewalk)
a. Facts:

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 i.  (Mannillo) filed action for trespass and seeking
injunction;  (Gorski) counterclaimed with a
defense of adverse possession.
ii.  built a concrete walkway which encroached upon
’s lot by 15 inches.  built it with the mistaken
belief that the property belonged to them.
b. RULE: A party may acquire land through adverse
possession if that party had a mistaken belief that she had
title to the property. In order to constitute “open and
notorious” possession, the true owner must have actual
knowledge of a minor encroachment along a common
border.
i. Open & Notorious:
1. Only when true owner has actual knowledge
2. When possession is clear/large enough, there
is a resumption that the true owner knows or
should know
3. But if possession is a small encroachment or
not clear to the naked eye, there is no
presumption that the true owner should
know
ii. Undue Hardship:
1. UH on a true owner (they may have to
obtain a survey every time a neighbor
undertakes an improvement)
2. But also UH on the adverse possessor if they
have to do something about their
improvements
3. O’Keefe v. Snyder (Art Thief)
a. P sought to recover paintings from D’s gallery which she
alleges were stolen years prior. The problem was that she
had not reported the crime immediately and the court had to
decide whether she used reasonable diligence and was
thereby entitled to the discovery rule.
b. Issue:
i. Whether a cause of action for adverse possession
accrues at the time of possession of a chattel, absent
fraud or concealment
c. Holding:
i. A cause of action for adverse possession accrues at
the time of possession of a chattel absent fraud or
concealment UNLESS the owner is entitled to the
benefit of the discovery rule.
d. RULE: Discovery Rule: In an appropriate case, a cause of
action will not accrue until the injured party discovers, or
by exercise of reasonable diligence and intelligence should

20
 have discovered, facts which form the basis of a cause of
action.

The court ruled adversely to

the claims of the
II. plaintiff and held that the
plaintiff had not made out a
sufficient interest in, or right
of
III. possession to, the subject
matter in dispute, to authorize
a recovery in the suit, and
IV. rendered judgment for the
defendant. The plaintiff
moved for a new trial for
error in this
V. ruling of the cou
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