Law Commons^™

Ownership And Possession, Thomas W. Merrill

Faculty Scholarship

One of the enduring mysteries about property is why the law protects both ownership and possession. In a pre-modern world, with low rates of literacy and no formal method of registering titles, one can understand why the law would protect possession. In such a world, there may be no concept of property beyond the understanding that persons should respect possessory rights established by others. It is less clear why possession should be protected once property comes to be understood as ownership. Ownership and possession will commonly overlap, and protecting ownership will protect possession. Nevertheless, even in the most sophisticated legal …

Trademark Owner As Adverse Possessor: Productive Use And Property Acquisition, Jake Linford

Scholarly Publications

There is an ongoing debate over whether or not a trademark is “property,” and what the appropriate boundaries of such a property right might be. Some scholars assert that rules and justifications developed to handle rights in real property are generally a poor fit for intellectual property regimes and for trademark protection in particular. Others respond that a unified theory of property should be able to account for both real and intellectual property. Neither approach fully recognizes that property regimes are multifaceted. A close look at the critical features of particular regimes can pay unexpected dividends.

This Article reveals how …

Atrocity, Entitlement, And Personhood In Property, Daniel J. Sharfstein

Vanderbilt Law School Faculty Publications

For a generation since Margaret Jane Radin’s classic article Property and Personhood, scholars have viewed personhood as a conception of property that affirms autonomy, dignity, and basic civil rights, a progressive alternative to traditional, more economically focused property theories. This article presents a fundamental challenge to personhood as a progressive approach to property. It shows that personhood claims often derive from violent and other harmful acts committed in the course of acquiring and owning property. This persistent and pervasive connection between personhood and violence — the “atrocity value” in property — upends core assumptions about the American property tradition and …

Rethinking Adverse Possession: An Essay On Ownership And Possession, Carol N. Brown

Law Faculty Publications

In the wake of the present real estate crisis, there has been prolonged discussion of the wrongdoing that led to systemic failures in the national real estate market. The mortgage crisis caught the nation’s attention because of its large scale and its rippling effect throughout the economy. Equally nefarious is the impact of adverse possession on the rights of individual property owners. While a single adverse possession does not affect the national market in the same way as the mortgage crisis did, to the individual owner, the wrongdoing, in the form of a trespass, that ripens into title, is just …

Posting Property And Prescriptive Easements: Aaron V Dunham, 2006, Roger Bernhardt

Publications

This article discusses a California case which court held that posting of permission-to-pass signs by a lessee, who was not landowner’s authorized agent, was ineffective to stop the neighbor’s prescriptive easement claim.

Lawyers And Lot Lines, Roger Bernhardt

Publications

This article discusses doctrines dealing with encroachments. An encroachment may be protected by showing that it is permanent and has existed for more than three years; however, there are cases to the contrary. Adverse possession or prescriptive easement theoriues can also be used if the property was possessed for at least five years and other standards are met. Additiionally agreed boundaries and good faith improvements doctrines may apply.

Lawyers And Lot Lines, Roger Bernhardt

Publications

This article discusses doctrines dealing with encroachments. An encroachment may be protected by showing that it is permanent and has existed for more than three years; however, there are cases to the contrary. Adverse possession or prescriptive easement theories can also be used if the property was possessed for at least five years and other standards are met. Additionally, agreed boundaries and good faith improvements doctrines may apply.

The Uneasy Case For Adverse Possession, Jeffrey E. Stake

Articles by Maurer Faculty

No abstract provided.

Property Law: 1995 Survey Of Florida Law, Ronald B. Brown, Joseph M. Grohman, Manuel R. Valcarcel Iv

Faculty Scholarship

No abstract provided.

Property Law: 1994 Survey Of Florida Law, Ronald B. Brown, Joseph M. Grohman

Faculty Scholarship

No abstract provided.

Real Property, E. F. Roberts

Cornell Law Faculty Publications

Ours is an era during which a whole year's worth of developments rule-wise can be brought up on a desktop screen already broken down by subject and subdivided into discrete topics. In high-tone academic neighborhoods this causes pundits to impose upon this already ordered material a new twist, re-ordering it around themes derived from economics, sociology, or even street corner opinion polling. Bean counting and number crunching are felt necessary, and understandably so, if one is to add something "intellectual" to what the machines have spewed out. The life of an old-fashioned lawyer has become hard indeed in this Republic, …

An Inquiry Into The Merits Of Copyright - Notes On Property Parallels, Dukeminier/Krier Book, Among Other Things - 1985, Wendy J. Gordon

Scholarship Chronologically

These are notes re thoughts sparked by reading Dukeminier & Krier, PROPERTY (little Brown 1981) and their TEACHERS MANUAL FOR PROPERTY (Little Brown 1981). What I may be doing is beginning a unified i/p. One part of that doctrine may be parallel ordinary Property, like so: HYPOTHESIS - The role played in ordinary property law by "possession" [,1] may be played in i/p law by "use. This can be very important.

Kentucky Law Survey: Property, Carolyn S. Bratt

Law Faculty Scholarly Articles

Law students, and probably practitioners, are often perplexed by the multitude of topics covered under the rubric of property law. Unfortunately, this Survey article does nothing to dispel the impression of property law as a hodgepodge of unrelated topics. This Survey of recent decisions in Kentucky discusses topics ranging literally from "a" to "z"-adverse possession to zoning.

Yes, Students, There Is A Marengo Cave -- And You Are There, A. Dan Tarlock

Articles by Maurer Faculty

No abstract provided.

Recent Real Property Decisions, Nicholas L. White

Articles by Maurer Faculty

No abstract provided.

Adverse Possession In The Case Of The Rights Of Way Of The Pacific Railroad Companies, Ralph W. Aigler

Articles

While the weight of authority is probably to the effect that railroad rights of way may be lost by adverse possession, the authorities are by no means agreed. See 12 MICH. L. REV. 144. The rights of way of certain of the Pacific Railroad Companies have been declared not to be subject to the ordinary rules as to adverse possession, on the ground that by the Congressional grants the four-hundred-foot-strips were conveyed only for railroad purposes with the ultimate possibility of reverter in the United States, which had the effect of making such lands inalienable by the railroad companies whether …

The Character Of User In Prescription, Ralph W. Aigler

Articles

As the possession of the claimant in a case of adverse possession must be shown to have been adverse in order to ripen into title, so also must the user in prescription be shown to have been adverse during the entire prescriptive period. As to the burden of proving the adverse character of the possession in the first case there seems to be doubt whether there is a presumption of adverseness by showing open possession and acts of ownership, or whether there is a burden upon the claimant to go further. See 2 AM. & ENG. ENCY. L. & P. …

Possession Under Mistake As Adverse Possession, Ralph W. Aigler

Articles

In Wissinger v. Reed et al., 125 Pac. lO3O (Aug. 24, 1912) the Supreme Court of Washington held that actual possession of land for the statutory period would confer title upon the occupant, although the possession was under a mistaken belief of ownership. While the doctrine that title to real property may be acquired by adverse possession has been firmly established in English and American law for a great many years, no little difficulty and confusion have arisen in determining what possession is adverse, especially where the actual possession upon which the claim of title is based has been under …