Rule of Capture & Natural Resources
Under the rule of capture, what must the pursuer achieve to gain property rights?
Possession – or near possession.
Name all six elements of adverse possession.
Actual possession; Exclusive use; Open & Notorious; Adverse; Claim of Right; Continuous; for the Statutory Period
What language is required to create a life estate?
No special buzz words necessary to create a life estate
If the transferor retains the future interest and uses durational language, what estate is created?
FSD
What are the three future interests that can be retained by a transferor?
Reversion, Possibility of Reverter, Right of Entry.
What alternative rule to the Rule of Capture governs groundwater under a “reasonable use” standard?
The Correlative Rights doctrine (Overlying Rights Rule).
What test determines “actual possession”?
Claimant must physically use the land in the same manner that a typical owner would given its character and location.
.What is a life estate pur autre vie measured by?
The lifetime of the person to whom it was originally given.
If the transferor uses non-durational language (“provided that”), what estate is created?
(FS/CS)
Define a remainder.
Future interest in a transferee that is capable of coming into possession at the natural end of the preceding estate.
In Sipriano v. Great Spring Waters, what rule allowed taking water regardless of impact on others?
Rule of Capture.
What makes possession “exclusive”?
Use exclusive of the true owner and any other trespassers possessing like they own it.
What are the three types of waste?
Affirmative, Permissive, and Ameliorative waste.
If a transferee holds the future interest, what possessory estate does the grantee hold?
Fee Simple Subject to Executory Limitation (FS/EL)
What are the two requirements for a Vested Remainder?
(1) Given to at least one ascertained person, AND (2) not subject to a condition precedent.
List two policy arguments for the Rule of Capture.
Promotes productive use and technological advancement; rewards labor and freedom to use land.
What does “adverse” mean, and what does not constitute permission?
Adverse = without permission from the true owner; mere acquiescence (knowledge) does not constitute permission
Under the traditional rule, is ameliorative waste (waste that increases value) permitted?
No – traditional common law considers it waste even if it increases value.
What happens when the condition in a FSD is triggered?
The property automatically reverts back to the transferor (or their estate).
When does a contingent remainder typically create a reversion in the grantor?
Whenever you have a single Contingent Remainder, you are very likely to also have a Reversion in the Grantor.
What are the main principles courts weigh when choosing between capture rules?
Certainty; morality/fairness; productive use; conservation; labor theory; personhood; first in time.
Define and state the “color of title” perk
"Color of title” = invalid deed/will/judgment; if elements met for part of land, possessor deemed to have constructive possession of all land described.
What is the modern rule on ameliorative waste and what is its rationale?
Modern approach rejects ameliorative waste doctrine; if change increases value, it’s not waste because it promotes productive use.
State the rule for direct and partial restraints on alienation.
Direct restraints on alienation are VOID. Partial restraints may be valid if reasonable as to duration, scope, and purpose.
What happens to a reversion when there is a Vested Remainder in Fee Simple after a Life Estate?
The reversion disappears (“poof”). There’s nothing to come back to the grantor