Assignment Next Class

Assignment Next Class Read pages 46-60. Read pages 61-77. Prepare the Exercise on page 60. Work on an outline of Adverse Possession. Organize the doctrine of Adverse Possession into elements & sub-elements. Be as detailed and complete as you possibly can. Review: Fundamental Tasks 1. Find, understand and organize legal rules, their elements & the policies behind them. 2. Be able to apply rules methodically to new facts, element by element & rank issues. 3. Be able to reduce uncertainty, enhance predictability & argue persuasively for an outcome, when elements are in dispute. 4. Clearly express these thoughts in oral and written form 1

These Are Formidable Tasks: The Legal Analysis Approach Use study aids or sources before reading cases, prior to class, soon after class Use briefing to exercise skills & engage the process Use class note-taking, summarizing and outlining to continue the process of finding, understanding, organizing, and applying the rules Develop exam writing strategies and skills Today s Class 1. Discuss Issue Identification and Articulation. 2. Look at law school study aids. 3. A closer look at case analysis and case briefing and how we use cases as part of the task of extracting & synthesizing rules. Krona v. Brett Marengo Cave Co. v. Ross 4. Engage in the process of constructing an outline of adverse possession, using: a. cases b. secondary resources, & c. class 2

Issue Statements Start by distinguishing a factual issue (v. legal issue): Factual Issue: Did the driver run a red light? Did Donna speak at the parent teacher meeting? Did the criminal defendant pull the trigger? The jury gets to tell us what facts are true. What is a legal issue (v. factual issue)? Legal issues arise when methodically applying the rules/elements to the facts of a case, the outcome is unclear. True issues only arise when the existing body of rules (and their elements) do not clearly dictate an outcome. What is an issue statement? An issue statement is nothing more than the phrasing of the legal issue in a manner that a listener will understand: The legal rule in question. The element in question. The facts in question. Issue Statements - Page 35 Donna makes her statements directly to Peter in a school hallway ( Peter, I know that you are incompetent, take drugs & alcohol, and molest children ). The statement is overheard by the school principal, who is 10 feet away, around the corner. Peter is fired and suffers damages. The statement is untrue. Donna did not know that it is untrue. 3

Identifying The Issues How do we identify the issue(s) in this case? How would lawyers or good law students analyze this dispute, identify and articulate issues? Go element by element (skip publication for the moment) Defamatory Statement (diminish reputation) T Untrue T (factual issue, not a legal issue) (7 th Element in Some States & Possible Issue: Donna must know the statement was untrue, or act with recklessness or negligence as to truth) Concerning the Plaintiff T Caused Actual Monetary Damages T Not Privileged T Publication --?? The Publication Element To be published, the statement must be intentionally or negligently communicated to someone other than the plaintiff who understands its defamatory meaning. Donna made her statements to Peter in a school hallway. The statement is overheard by the school principal, who is 10 feet away, around the corner. Let s state the issue in a succinct & clear manner so that a lawyer, judge or jury would understand one of the major legal issues in this case: 4

Issue Statement Identify the Rule, the Element in question, the essential facts giving rise to the dispute. Rule: [In a defamation action], Element: [is a statement negligently published ] Facts: [when the defendant makes defamatory remarks directly to the plaintiff in a school hallway, if the statement is overheard by another person who was not known by defendant to be in the hallway]? Examples of Broad Issue Statements Are the following accurate statements of the issue(s) in this case? 1. Is a defendant liable for defamation when making defamatory accusations about a school teacher? Accurate but fails to isolate & articulate the dispute before the court misses: Element in dispute (note that most of the elements are not in dispute in this case) Facts in dispute. 2. Is a defendant liable for damages if she makes critical statements about the plaintiff? Accurate but fails to isolate & articulate the dispute before the court -- misses the: rule, element & facts in dispute. 5

Examples of a narrow issue statement Is the following an accurate issue statement? Is a defendant liable for defamation when she makes a statement that the plaintiff (a high school teacher) is often intoxicated or high in class, molests children and was an incompetent teacher, and when the statement is untrue, and defendant makes that statement in a school hallway, where (unknown to the defendant) it is overheard by the school principal, who then fires the plaintiff? Accurate but too narrow. Way too much info unrelated to resolving the ELEMENT in dispute whether the statements were intentionally, recklessly or negligently published. Also fails to separate the elements Elemental Analysis & Issue Statements The key to effective identification & articulation of issues is an element-by-element application of the rule & its elements to the facts. Note: Cannot identify the issue(s) in a case (except in an overly broad way P is seeking damages against D ) until we have a solid understanding of the rule & its elements/factors. This is true for every case you read. Until you extract and synthesize the rule & its elements, you can t identify the issue(s) in the case. It makes sense to have a basic understanding of the rule structure before reading the case. 6

Multiple Issues Many cases have more than one element in dispute or more than one cause of action. Suppose Donna made the following statement about Peter: At a School Board meeting She suspected the statement was not true "I have heard that a certain math teacher is not doing a professional job of teaching his math class." Donna is a member of the School Board. There are two math teachers, Peter and Barbara. State Each Issue Separately As we apply the elements to the facts, we can see that there may be more than one issue. Defamatory Element: Was the statement, "I have heard that a math teacher is not doing a professional job of teaching his math class, defamatory? Concerning the Plaintiff Element: Did the statement concern Peter when it refers to his math class and the only other teacher is a female? Truth: Did Donna know it was untrue or act with recklessness/negligence as to truth Privilege Element: Is a defamatory statement about a school teacher privileged when made by a school board member during a meeting of the school board? 7

Source Materials for Law Students Seven Examples of Resources: Basic Characteristics? Did you find helpful? Tables of Contents and Syllabus Nutshells Commercial Outlines Hardcover treatises ( Hornbooks ) Casenotes ( canned briefs ) ---------------------------------------------- ***BRIEFS/LOGS*** Class Notes & Summaries Briefing -- Why Law Students Read Cases Train the skills of rule extraction & synthesis Understand the elements of the cause of action discussed in the case (i.e.: the rule(s) of law discussed in the case) Identify the important facts of the case Understand the historical, economic, social and political justifications for the rule(s) of law Synthesize the case with other cases and/or statutes to create a broad and cohesive legal rule structure 8

Logging/Briefing Why brief cases? Analyze and record the important aspects of a case for class if called on (minor function). Find, understand and organize legal rules and elements (important function) Train and enhance skills of analysis, interpretation, synthesis and expression (important function). Logging Many students misperceive the roll of case briefing and, eventually, give it up until they enter practice. Logging emphasizes the broader and important purposes of case briefing an active role in "contextualizing" the case assigned for class. Briefs/Logs What is a case brief or log? A functional device that serves a couple of goals: Memory retention & prep for class (lesser of the two goals) Essential part of actively engaging: the process of finding, understanding, organizing ROL, E, P and expressing ROL, E, P and practicing the higher level skills of rule extraction, synthesis, application & analysis. 9

Logging - Work reduction process. 1. Gather, understand and preliminarily organized all of the material for the final outline; and 2. Actively sharpening the very skills that will be tested on the exam. 3. Find, understand and organize legal rules and elements. Log Form Let s Look at the Log Form on Page 21 10

Summarizing Classes What if you sat at the end of every class you took a few minutes to summarize the class discussion? Sat there and pondered what was discussed and put it in your own words. An opportunity to really manipulate and understand. Until the material is understood and digested, it s just been found summarizing transforms it to the level of understanding. Time in Class, Note Taking & Summarizing Keep the fundamental tasks in mind: Find understand & organize ROL, E, P Develop & practice skills of analysis, application, judgment, synthesis. Come to class prepared with basic rule structures & use class to: Complete the rule/elements structure Understand the rule & elements in all its complexity. See the sub-elements, organization, policies. Synthesize and apply. Avoid transcription at all costs. More info on summarizing next class 11

Krona v. Brett An example of reading cases and using briefs to engage in the process of rule extraction and synthesis. Let s use the case of Krona v. Brett to find & organize the rule of Adverse Possession, its elements & policies. Then we ll apply the rule & elements to novel factual circumstances. Krona v. Brett -- Who Are The Parties Plaintiff? Mr. Carl Krona (long-term possessor, seeking to quiet title to the 2.85 strip) Defendant Mrs. Pearl Brett (true title owner of the strip). What is P s Theory of Relief (cause of action): Adverse Possession Krona has acquired title to the strip by virtue of the doctrine of adverse possession. Note: if you checked the Table of Contents & some outside resources it would be clear that the cases in this section are about acquisition of title to land. The Diagram 12

Disputed Strip The Important Facts -- Timeline 1923: Carl Krona acquired his parcel. Agent & attorney state lattice fence marks the boundary line. Fence is 3 feet below true property line. Everyone believes the 3 foot strip is part of the north parcel. 1932: Krona builds a 10 foot retaining wall close to the true boundary line (fish pond retaining wall) with compost heap behind. 1938: Brett acquires her parcel. Brett also believes the fence is on the true boundary line. (so did Brett s seller, who was there for many years) 1952: Brett puts up a concrete and hurricane fence to replace lattice fence, 3 feet south of the true property line. 1965: Brett surveys after 27 years. Brett tears down the fence, Krona rebuilds, Brett builds a new fence on the true property line in Krona s front yard. Krona sues for quiet title. 13

P s Cause of Action What is P s cause of action? This is a quiet title action in which Krona is asserting that he has acquired title to the 3 strip. What is the legal rule that Krona asserts gives him title to the disputed 2.85 foot strip? Adverse Possession & Acquiring Title To Land: The statute of limitations prevents the true owner (Brett) from bringing an action to recover possession of the three foot strip if the elements of Adverse Possession are satisfied. Krona becomes the legal owner of the strip. Why have such a doctrine? Preserve the long-term expectations of the parties. Protect investment by good faith possessors who mistakenly occupy the wrong land or parcel. Adverse Possession What are the Required Elements? This case lays out six elements for Krona to satisfy if he will be successful in gaining title by A.P. See indented at the bottom of page 26: 1. Possession, that is: 2. Adverse & Hostile 3. Open & Notorious 4. GFCR or Color of Title 5. Continuous 6. For the full Statutory Period 14

Was Plaintiff (Krona) Successful at the Trial Court Level? No. The trial judge ruled in favor of the defendant (Brett). Krona lost his land after 40+ years (1923-1965). Why? The trial judge identified 3 elements that Krona had not satisfied: There wasn t sufficient possession because the use of the 2.85 strip was equivocal (the fish pond retaining wall was near the true property line) The possession was not open & notorious because Krona had never communicated the claim of ownership of the strip to Brett The possession was not adverse & hostile because Krona never acted with hostility. What are the Issues on Appeal? How does the Washington Supreme Court resolve the issues in 1967? Let s go through each element, identify the issue & discuss how the court resolved the issue. 15

Issue Possession Element Actual Possession? In an adverse possession case, is a possessor in actual possession of a 3' strip of land between two homes when the possessor mows the lawn, plants flowers, builds a brick patio and uses a compost heap? Supreme Court of Washington: What is the definition & sub-rule for the element of possession? (What are the legal tests for this element?). Is the element satisfied by the facts of this case? Actual Possession What constitutes possession of land? Does the possessor have to be physically present on the land 100% of the time? Cultivate the land? Fence the land? Mow the lawn? Actual Possession of Land: Dominion & control like an owner would exercise with respect to property of similar nature, condition, character & location. 16

Open & Notorious? Issue? In an A.P. case, is a possessor open & notorious when the possessor openly uses a 3' strip of land for common residential purposes but does not expressly communicate a claim of ownership to the true owner? How does the Supreme Court of Washington handle this: What is the definition & sub-rule for the element of open & notorious (What are the legal tests for this element?) Is the element satisfied by the facts of this case? Open & Notorious Was Krona s possession open & notorious? This element focuses on fairness to the true owner. If we are going to obligate the true owner to bring an action within the statute of limitations, there must be notice of the possession. Actual notice exists if the true owner actually knew of the possession by Krona as an owner. Constructive notice exists if the possession was sufficient to put a reasonably prudent true owner on notice of the possession 17

Open & Notorious Did Brett actually know of Krona s possession of the 3 strip? Yes! Brett saw the lattice fence every day &, in fact, built a more substantial fence & continued to hear/see/feel/smell/taste Krona s possession of the strip Suppose Brett lived in New York and never visited the property. Would Krona s possession still be open and notorious. Actual notice to Brett: No Constructive notice to Brett: Yes! A reasonably prudent true owner who visited the property would have seen Krona s possession of the 3 strip. Adverse & Hostile Issue? In an A.P. case, is a possessor adverse & hostile when the possessor uses a 3' residential strip for common residential purposes for an extended period, without a lease or other permission of the owner but also without animosity? How does the Supreme Court of Washington handle this: What is the definition & sub-rule for the element of possession? (What are the legal tests for this element?) Is element satisfied by the facts of this case? 18

Legal Test for Adverse & Hostile? Possession as an owner and not subservient to the true owner. What are some good examples of possession of real property that is not adverse and hostile? License: House guests, house sitters Lease: Legal right to possession is given to the tenant but the possession is not adverse and hostile to the true owner. In fact, by definition, possession under a lease is subordinate to the true owner. Makes sense, tenant is not developing long term expectations that tenant is the owner. Good Faith Claim of Right & Color of Title Was Krona s possession under a good faith claim of right &/or color of title: What is a good faith claim of right? A mistaken belief that the possession is as an owner. The possessor is not acting in bad faith and trying to take someone else s land surreptitiously. Color of Title We will cover later. 19

Query Multiple Choice Test When did Krona acquire title as the owner of the 2.85 strip by virtue of the doctrine of Adverse Possession? A. 1923 (date Krona purchased) B. 1933 (10 years later) C. 1967 (date of this case) D. Never At the latest, 1933 (10 years after Krona possessed the strip, a&h, o&n, gfcr, continuously, for the statutory period). This case (in 1967) merely declares this to be true: Krona was the owner since 1933 (or earlier if prior possessor also possessed). Sample Brief Sample Brief/Log of Krona v. Brett 20

Marengo Cave Co. v. Ross (Indiana, 1937) Plaintiff? Ross (appellee) (true title owner of the disputed underground land) Defendant? Marengo Cave Co. (appellant) (possessor): Asserts it acquired title by virtue of the doctrine of adverse possession. P s (Ross) Cause of Action (theory of relief)? Quiet Title Action: Ross is seeking a court declaration that he is the title owner of the cave -- & Marengo has not gained title by adverse possession. Seeks a declaration ( quiet title ) to this effect. Procedural Posture of the Case Who won at the T/C level? The Plaintiff, Ross (jury verdict): Marengo did not gain title by adverse possession to the part of the cavern under Ross land. Marengo Cave Co. appeals the decision by filing an appeal with the Supreme Court of Indiana, asserting the trial court made errors of law or fact. Marengo Cave Co. certainly seems like it should have gained title but the trial court holds that not all elements were satisfied by MCC. Which element(s) did the trial court conclude was/were not not satisfied? Open & notorious. 21

The Real Marengo Cave Diagram: Marengo Cave Co. Marengo Cave Co. Land Ross Land Cave Entrance (700 feet from property line) Underground disputed area Important Facts? 1883 to 1929 (46 years): 1883, Local kids discover the entrance to a cave on Stewart s land. It s a vast underground cavern. The entrance is on Stewart s (Marengo s predecessor) land, about 700' from Ross land. For 46 years the Marengo Cave Co., and its predecessor (Stewart), exercised exclusive control over the underground cave. Actual possession of the underground disputed land, charging admission, excluding others and making concrete improvements. Ross acquired title to his land in 1908. A portion of the cave lies underneath Ross' land. In 1929 Ross compelled a survey, and then brings a quiet title action. Marengo Cave Co. alleges ownership by virtue of the doctrine of a/p. Statute of limitations for adverse possession in Indiana is 20 years. 22

Were the elements of adverse possession satisfied by Marengo Cave Co.? Note: The Court does a great job of element-by-element analysis The 6 Elements of A/P Possession (actual or constructive) Adverse & Hostile ( Exclusive Possession ) GFCR or Color of Title Continuous For the Statutory Period Open & Notorious Let s check the Elements Against the Facts Actual Possession? What is the legal test for this element? From Krona, the type of possession required is dominion & control like an owner would exercise with respect to property of similar nature, condition, character & location. Is the test satisfied here or is there an issue? Facts: Marengo installed concrete steps and walks, expanded passages, charged admission. Exclusive possession, not shared. Conclusion: This is the type of possession that owners of caves exercise. 23

Legal Test for this Element: Adverse and Hostile Possession? From Krona, possession as an owner, rather than in a subservient status like tenant or licensee. Is the test satisfied here or is there an issue? Facts: claimant possessed the cave as an owner, not by permission: charged admission, excluded all. Not a lessee or licensee of Ross. Conclusion: Marengo Cave Co. was adverse & hostile. Possession Under a Good Faith Claim of Right or Color of Title Legal Test for this Element: The possession must be under either a good faith mistaken belief or color of title. Is the test satisfied here or is there an issue? Facts: Apparently the original & continuing possession of the entire cave was done in the mistaken but good faith belief that it was contained under land owned by Marengo Cave Co. for the full statutory period. 24

Was Possession Continuous? Legal Test for This Element Sub-element #1: Possession must be uninterrupted. There must be no breaks in possession (such as ouster or abandonment). Facts & Analysis: Here, the cave was continuously in possession from the time shortly after its discovery in 1883 for over 40 years. Sub-element #2: Successors can tack their possession if they all possess as though they were owners. Facts & Analysis: Here, Marengo Cave Co. can tack its possession to that of the original owner, Stewart. Was Possession for the Statutory Period? Element: The possession must be adverse & hostile, etc. for the full period of the statute. Facts: The statute in Indiana requires 20 years rather than the 10 years of adverse possession that applied in Krona.. Still, the possession against Ross and Ross predecessor amounts to 46 years. No issue. 25

Open & Notorious What is(are) the legal test(s) for this Element? Either: (i) Actual notice of the possession of the land being disputed (being able to see/feel/hear/smell it with one s senses), or (ii) Constructive Notice The type of possession that would put a reasonable prudent owner on notice that someone is making a claim of ownership to their land. For underground possession, the acts of possession must be sufficient to put a reasonably prudent owner of the surface on notice of the claim. (continued ) Open & Notorious Why have this element? Otherwise, it would be unfair to the true owner to compel the true owner to bring a repossessory action within the period of the statute of limitations This element focuses on the true owner to make sure that he/she knew or should have known that someone was in possession of the land and the true owner should timely commence a repossession action 26

The Open & Notorious Issue: State the issue regarding this open and notorious element: Has the open and notorious element of adverse possession been satisfied when the owner of a large underground cave has mistakenly occupied an underground portion of plaintiff's land for 46 years, but Actual Notice: The true owner(s) did not know of the underground possession? Constructive Notice: nothing on the surface would put a reasonable true owner on notice of the underground possession? Open & Notorious Rule applied to the Facts: Actual notice. Neither Ross nor his predecessor actually knew about the subsurface possession of the land. They knew there was a cave but did not actually know that the cave extended under the land. Could not see it, smell it, hear it, feel it Constructive Notice: A reasonable owner, on the surface, would not know about the underground possession of Marengo. Cannot expect owners of land to know, with the exercise of reasonable care, of this underground occupancy. It s much too expensive & difficult to find out where underground caverns extend to. 27

Decision & Rationale: O&N Decision is for plaintiff (Ross) Quiet title to the cave in Ross on the basis that the defendant (Marengo Cave Co.) was not open and notorious. Rationale? The reason for the open and notorious element is to assure that the true owner has a reasonable opportunity to know of the possession of the adverse possessor, before the Statute of Limitations starts to run. Here, nothing existed to tip off Ross or predecessors of the claim to an underground area of their land. Reasonable owners on the surface can t know about underground possession without spending unreasonable amounts of money to investigate. Your response to the decision I agree. Ross did not know, and could not know with the exercise of reasonable care, of the underground possession. 28

Query: Is it possible for an underground possessor to ever fulfill the open & notorious element of adverse possession? Some commercial outlines say no. That s silly! Why not? Suppose: Entrance 10 feet from Ross land, vibrations & noise from 8:00 am to 5:00 pm, buses unloading, etc. The possession would have been open and notorious since a reasonably prudent true owner on the surface would have known of the adverse possession. Why Was This Case Assigned by the Prof? To serve as another example of case briefing, analysis, and logging. This case focuses on the element of open and notorious possession. Here, an actual adverse possessor cannot succeed in securing title under adverse possession because of a failure of the open and notorious element 29