Property I Outline

Property 1
Professor Heekin
Fall 2010
Acquisition by Capture:
a)       You must have actual possession, or else constructive possession by inflicting a mortal wound; pursuit does not vest title. Pierson v. Post (1805) [one hunter was pursuing the fox when another hunter shot it; hunter who shot the fox had possession] b)       Possession – must deprive the animal of its natural liberty
i)         Corporeal possession
(1)     Capture must be virtually complete, slight possibility of escape allowed
(2)     Must use reasonable precaution against escape
ii)       Mortal wounding
(1)     Mere pursuit is not enough – Pierson v Post.
(2)     Subject to trade custom – Ghen v Rich
c)       Majority Rule – Certain control
i)         Mere pursuit does not give rights to the animal. The one who captures the animal gets it. It encourages the pursuer to capture it as quickly as possible. The rule of capture is a killing machine. Directly follows the first in time rule.
d)       Minority Rule – Reasonable prospect of capture
i)         Pierson v. Post: Man kills a fox while another man is in pursuit of it.
ii)       Policy: Rule of capture is easier to administer that a rule that protect pursuers. The court reasoned that they would be flooded with disputes. Importance of certainty and preserving peace.
e)       Interference of a noncompetitor:
i)         A person cannot maliciously prevent another from capturing wild animals in the pursuit of his trade. A person can lure the wild animals off of the owner’s land but cannot scare them away.
(1)     Exception: When the other person engages in the same occupation.
(a)     Keeble v. Hickeringill: the defendant shot his rifle near the plaintiff’s duck pond to scare away the ducks, the court found trespass.
(i)       “malicious interference is actionable”
(ii)    Rational Soli: Land owner has “constructive” possession of animals ferae naturae on their land.
1.       The court values the beneficial use of land and competition to increase the efficient capture of wild animals.
2.       Schoolmaster Hypo: a schoolmaster can try to lure students to his school but he cannot scare students from attending the competing school.
3.       Since the rule of capture wants animals captured, Keeble also seeks to ensure that the ducks are captured and not lost to either party.
f)        Custom:
i)         Title to a wild animal is acquired when the hunter apprehends the animal in accord with custom.
ii)       An exception to the rule that the captor must have physical control over the animal is in the case where custom is more effective at getting animals killed. If the killer of the animal makes marks of appropriation, he gets it.
(1)     Ghen v. Rich: Chance finder of a whale carcass has no rights to it. The killer of the whale has the rights.
(2)     Note: This argument is wrong, the rule of capture is a killing machine
g)       Title to a wild animal is acquired by constructive possession in accordance with custom.
i)        Courts often use the word “constructive” to transform one state of facts into another.
(1)     Under the theory of constructive possession, a landowner owns not only his real property-his land-but also the wild animals frolicking on the land
ii)      Ghen v. Rich (1881) [the whaler who lanced the whale vested best title over the person who found the whale on the beach where custom dictated that whalers marked their spears to indicate ownership] (1)     Custom recognized as basis for property right when:
(a)     its application is limited to those working in the industry
(b)     custom is recognized by whole industry
(c)     requires of the first taker the only possible act of appropriation
(d)     necessary to survival of industry
(e)     and works well in practice
(2)     Custom is bad when:
(a)     formulated for the benefit of the industry but not society as a whole
(b)     may be dangerous to those employed in the industry
(c)     wasteful of a resource (i.e., the whales that floated out to sea and weren’t recovered)
 
ACQUISITION OF PROPERTY BY FIND
a)       General Rule:  The finder of lost property is entitled to it against everyone but the true owner and a prior possessor.
b)       Nature of the Property
i)        Lost Property
(1)     Nature of the locus in quo
(a)     public place: general rule applies
(b)     private property: owner/occupier of locus in quo prevails
(2)     Relationship between parties: employer/employee
(a)     British rule: servant finds for the master
(b)     U.S.
(i)      Majority: employee may keep found property
(ii)    Minority: follows British rule
ii)      Mislaid Property
(1)     Definition: voluntarily placed and inadvertently forgotten
(2)     Rule: Owner of locus in quo entitled to possession
iii)    Abandoned Property
(1)     Defi