DEEDS/TITLE
1. Contract
2. Conveys land
COLOR OF TITLE
1. Some title exists, but defect accompanies the title
2. P sues under the title, and asserts property rights
ROMERO V. GARCIA
1. P sues under color of title
2. Title lacked a signature (Ct. says still valid)
3. Title lacked clear reference to the property
a. Ct. says as long as surveyor can determine boundaries from title, then OK
4. This title had clear boundaries listed, surveyor determined a parallelogram parcel
5. Thus, P wins.
NOME 2000 V. FAGERSTROM
1. Alaska's AP period is 10 years, Why did the court only concern itself with the first year (1977)?
a. P filed in 1987; period is (1977-1987); P admitted adverse possession for 9 years.
2. D claimed adverse possession of entire parcel of land,
3. But D only showed AP of the northern parcel; southern area still belongs to P.
4. P: AP requires physical improvement, or substantial activity
a. Ct. rejects this argument, because AP is flexible; rural area requires less attention
5. P: No AP because not strictly exclusive
a. Ct: D not required to exclude everyone, can be hospitable landowner
6. P: No AP, because D were stewards under trad. Alaskan system, not owners
7. Throughout the nine years, D planted trees, built a cabin, came seasonally, and often.
8. Community repute: community believed land belonged to Ds.
9. Ds also excluded others from camping on the land.
10. Ct.: P showed continuous, exclusive, notorious possession.
ADVERSE PROPERTY: POLICY CONSEQUENCES
1. Increases efficiency: cuts down litigation
2. Title searches are easier
3. Maximizes productive use of land
a. Adverse Possessor values land more than true owner
4. Protects reliance
5. Increases certainty
6. Encourages squatting: increases litigation
7. Demoralizes property owners; rights not protected by courts
ADVERSE POSSESSION ELEMENTS
1. Actual
a. What reasonable use the true owner would engage in
2. Open and Notorious
a. Sufficiently visible or obvious to put true owner on notice
3. Exclusive
a. Invitees are okay (Nome 2000)
4. Continuous
a. If true owner under legal disability (infancy, imprisoned, insanity)
b. Then AP is tolled until disability ends
5. Adverse/Hostile
a. Objective: lack of permission, or acting as if adverse possessor owned the property
b. Subjective: Intent to dispossess, or good faith belief one has title
6. For statutory period
a. CA: 5 years
7. Others (Split of authority)
a. OR: Honest belief that possessor owns property, and possession must be reasonable
CIVIL PROCEDURE:
CONTINUED DICUSSION OF PENNOYER
HISTORICAL BASES FOR PERSONAL JURISDICTION
1. English courts asserted jurisdiction by physical arrest; serve papers
2. Increasing mobility created more suits against non-residents
PERSONAL JURISDICTION
1. No questions regarding jurisdiction over Ps
PENNOYER V. NEFF
1. Territorial power: how does "forum state" assert jurisdictional power and give notice to D?
2. First suit: Mitchell (atty) sues non-resident Neff for attorney fees; Neff loses by default, and his
property in Oregon is seized and sold
3. Neff was served process by publication, 6 weeks of newspaper publication
a. Notice would be sufficient for adjudicating property; but not for personal rights and
obligations ("in persona")
b. Notice sent out of state also ineffectual
c. Valid types:
i. In person service: gives notice and asserts court's power
ii. Voluntary appearance
4. The property is sold to Pennoyer
5. Second suit: Neff sues Pennoyer for recovery of property
6. Ct.: Sale is invalid if court had no jurisdiction; Pennoyer is ejected from Neff's property
7. Due process protection affords D with notice;
CON LAW (COURTESY OF EMILY)
AMERICAN INDIANS AND THE AMERICAN INDIAN POLITICAL COMMUNITY
3 major cases:
1. Johnson v. M’Intosh
2. Cherokee Nation v. Georgia
Rule: Cherokees are not a foreign nation but a domestic dependent Nation (Justice Marshall)
Concurrence: Cherokees are not a nation at all but wandering hordes (Justice Johnson)
Dissent: Cherokees are a foreign nation for purposes of original jurisdiction
3. Worcester v. Georgia
Georgia had passed a law requiring non-Natives have a state license to enter Indian land
Rule: Georgia’s law is unconstitutional, because the State has no force in Indian land; Indian land
is governed by the tribe and Congress but not by states
Andrew Jackson: “John Marshall has made his decision; now let him enforce it.”
Problem: Worcester protects tribes from States but not from federal government
REGULATION OF INTERSTATE ECONOMY
Gibbons v. Ogden
Ogden has exclusive right from State to operate steamboat; Gibbons’ license is from federal
statute; Gibbons wins
Rule: The Commerce Clause of Constitution allows federal government to regulate interstate
commerce; Only completely internal state commerce is reserved for the states
o If Congress has legislated, states may not regulate (preemption) [Valid today]
Art I, Sec 8: “Congress shall have the power…to regulate commerce with foreign nations, and
among the several states, and with the Indian tribes”
o Meaning of “commerce” includes navigation.
o “Among the states,” means any transaction at any point which touches on more than
one state
o Scope of federal commerce power is to its maximum
Wilson v. Black-Bird Creek Marsh Co.
State law authorizing construction of a dam was alleged to be in violation of the commerce
clause
Rule: When Congress does not act, states can regulate interstate commerce on their own
[Modified by subsequent cases]
THEMES OF MARSHALL COURT
I. Broad reading of federal power
II. Willingness to invalidate state laws that interfere with federal power
III. Broad reading of power of Supreme Court
o Power to review state court criminal proceedings
IV. Readings of the Contracts Clause that benefitted business
o Clearing channels of interstate commerce (Gibbons)