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Property II
John Marshall Law School, Chicago
Nagel, Mary

Property outline
I. Introduction
Property: Relationship between people and things (not the thing itself), abstraction. Property and law go together, without law there is no property, or right to ownership.
–          Rights among people
–          Rights between people and things
–          Real property (realty) refers to land and improvements attached to land
–          Personal property (personalty) all property besides real property (tangible/intangible)
–          Law recognizes the right to exclude others, quintessential belief behind property (who gets the right to use or access)
o        Types of rights: who uses it, comes on it, crosses it (slavery)
o        Bundle of rights theory associated with ownership, can sell or lease those rights, can separate out the bundle
Possession: controlling or holding of personal property with or without ownership. 2 elements (MUST HAVE BOTH ELEMENTS):
1.       An intent to possess on the part of the possessor
2.       His or her actual controlling or holding of the property (control is key)
1st Possession (First in time): establishing a priority of rights based on the time of acquiring the right in question. All things being equal, the chronologically first possessor has the better title. Policy, how do we want society to act? Power verses order, efficiency.
Relativity of Title: idea that a person can have a relatively better title or right to possession than another, while having a right inferior to yet another person.
II. Acquisition of Property by Capture (origin of property rights)
Title to wild animals is initially acquired by taking possession of the wild animal.
Mere chasing of an animal, although in hot pursuit, does not give the pursuer a right to possession against another who captures it by intervening.
If an animal is mortally wounded, or caught in a trap so that its capture is certain, the hunter acquires a right to possession and title which may not be defeated by another’s intervention.
Title acquired by possession can be lost if the wild animal escapes and returns to its natural habitat.
No one owns wild animals in their natural habitats. Under the common law capture rule, property rights in such animals are acquired only through physical possession.
Relativity of title – hierarchy of possession
PIERSON v. POST (defining capture):
While Post (p) was pursuing a fox, pierson, (d), killed the fox and took possession of it. Actual bodily seizure is not in all cases required – the mortal wounding of such beasts by one not abandoning his pursuit, may be deemed possession since the pursuer manifest an unequivocal intention of appropriating the animal to his individual use, and has deprived him of his natural liberty and brought him within his certain control. First in time/capture rule – he who first deprives a wild animal of its natural liberty first owns it.
A hunter must either trap or mortally wound a wild animal in order to acquire title to it
The mere pursuit of a wild animal is insufficient to vest title in the hunter
Ferae Nature – “of wild nature” fugitive resource, un-owned, wild nature, seeks escape. Resist possession and captivity. Humans are ferae nature. Seek freedom and resist capture.
Rationae Soli – Landowners are regarded as the prior possessors of any animal ferae naturae on their land, until the animals take off. Ownership of the soil, when own the land, own everything on it, running across it, etc.
Relativity of Title: I may not be the owner, but I have a better claim. I as in pursuit. First in time, I had it before you so I have a prior/better claim.
Rule of Capture:
advances society’s goal of capturing wild animals (make efficient use of property). Society rewards captors because it fosters competition, more competition means more hunters. More hunters results in the capturing of more wild animals
Easy to administer: while it is easy to determine who has captured a wild animal, it is very difficult to determine who was first to pursue.
GHEN v RICH (modifying capture)
P shot and killed a whale, which sank to the bottom of the sea. Three days later, Ellis found the whale and sold it to D.
Title to a wild animal is acquired when a hunter apprehends the beast in accordance with custom
Title may be acquired by hunter if he apprehends the beast in accordance with custom – custom usually embraces an entire industry, custom is good enough and compelling reason (make people engage in the business, if not industry could die)
Property law should promote the efficient capture of wild animals
P lured wildfowl to his land with decoys, D frightened wildfowl by firing a gun. So long as the performance of a trade is legal and does not harm another, no one can disturb the performance of this trade without just cause. (interruption/malicious act done to a man’s occupation or getting in the way of his livelihood allows for an action.)
A person may not maliciously prevent another from capturing wild animals in the pursuit of his trade.
Two public policies:
Every man should be able to enjoy the use of his land as he sees fit so long as the use is lawful
The capture of wildfowl in pursuit of trade is profitable; it creates wealth for the tradesmen, employees, and nation at large
D could have lured away by setting up another decoy, but the maliciousness of his acts makes him liable
Competition is acceptable, promotes capture of more wild animals
Policy – we want these waterfowl to be supplied to the market – ultimate policy argument. Plaintiff is doing something we like and want to supply game to the market. Other guy is shooting off guns on his property legal behavior. So which one do we want to encourage. You have to argue that one activity is better and more socially productive and that the other is not. Look to which situation is better for the economy.
First in time, first in right – even among thieves.
Domete natura – naturally tame, animals that do not resist capture
Animus revertendi – animal that has a habit of returning, must be returning not for food, but instead for some other reason as a peculiar function of the being, we are all creatures of habit. Returning to the familiar. Person to whom it returns bears responsibility, degree of ownership over that animal.
Res nullis – thing that is unowned/without ownership and thus subject to the rule of possession.
Doctrine of Rational Soli – an owner of the land owns the wild animals on that land
Actual Possession – The usual method of acquiring a property right in a wilds animal is to actually possess it – dead or alive.
Marks of appropriation – evidence of appropriation: Thus must be prior appropriation/possession
Relative title – actual possession is not everything, one’s person’s claimed property right is almost always good only in relation to others. Escapees and Domesticated Animals:
When the wild animal escapes it is un-owned, and will belong to the next first possessor.
Domesticated animals are not wild, so they continue to belong to prior possessor even if they wander off.
A wild animal becomes domesticated when as a matter of fact, it demonstrates a propensity to return home (animus revertendi)
Hypo – silver grey fox native to Canada finds itself in rural Mississippi. Man sees animal and shoots it skins it and keeps the skin. Another person comes on the scene and claims it and says that’s mine. Shooter is A, claimant is B. Suit over the fox, who wins and why? B wins, similar to elephant example. Not native to Mississippi, someone must have brought it there, prior appropriation, prior or superior claim to that animal. It is not un-owned. It is owned by someone.
Hypo – A is in the business of owning deer, keeps them on government land. B a hunter comes along and sees deer grazing on the land shoots it and keeps it. Between A and B who wins?
B wins – no evidence of prior appropriation, they were in their natural habitat. I did not know – legitimate right to claim it.
Hypo – a gas company, draws natural gas out of well number one, puts it in a tanker and transports it to another site. Where they then inject it into an underground cavern on land that they own. Gas seeps out and contaminates the property of B. B sues A for damage caused by his gas. Who win and why? No evidence that gas does not naturally occur in these cavern, thus when it escapes, it returns to its natural state, no marks of appropriation, it is un-owned, fugitive natural resource that has escaped. Subject by ownership by first to reduce it to possession. Once they escape they are un-owned, possession is a function of capture. Deprive it of its natural liberty. Water, gas, oil. Imagine the disputes over access to these resources. *If on the other hand this was an area where gas did not naturally occur, you would have a different argument.
III. Finders – prior possessors
A finder is a person who rightfully acquires possession of the property of another that has been lost, misplaced, abandoned or treasure troved (hidden).
Lost property consists of personal property whose possession has been parted with causally, involuntarily or unconsciously. 
Misplaced property refers to personal property which has been intentionally placed somewhere and then unintentionally left or forgotten.
Abandoned property consists of property that is no longer in the possession of the prior possessor who has intentionally relinquished, given up or released the property.
Treasure trove consists of coin or money concealed in the earth or another private place, with the owner presently unknown.
Rights of a finder at Common Law:
–          A finder of lost property acquires title to the property as against all but the true owner. The rights of the true owner are superior to the rights of the finder. Since the concept of title is relative, for this purpose a true owner could include a prior possessor.
–          Prevailing rule is that if a person finds personal property on the land of another, the finder is entitled to the personal property unless the finder is a trespasser.
–          The finder is in a relationship with the true owner similar to that of bailor-bailee. Therefore, a finder can be guilty of conversion if the finder appropriates the property to his own use, or if he is reasonably able to discover the true owner and fails to do so.
–          The finder of misplaced property is not entitled to retain possession of the property as against the owner of the land on which the property was found. Rather, the owner of the “locus in quo” is deemed to be the bailee of the goods for the true owner.
–          The finder of abandoned property generally is entitled to not only possession but also to ownership as against all others. In the case of abandoned shipwrecks within the territory waters of a state however, there is a conflict of authority – some states hold that such property belongs to the state and others hold that it belongs to the finder.
In England, treasure trove escheated to the crown. In the US it is treated as lost property and belongs to the finder.
            – Many states have enacted statutes which give the finder greater rights to found property than th finder had at common law. While these statutes differ widely, generally they eliminate the distinction

t is mutual, standard of care ordinary negligence (failure to use ordinary care) ex. Leaving a purse behind in the restaurant and found by the busboy
MODERN LAW: everything will be treated as ordinary negligence
                                                               i.      Bailment (pg. 109) – rightful possession of goods of another by one who is not the true owner. Contract based, expressed or implied. Owner of the goods (bailor) gives possession to the bailee.
                                                             ii.      Involuntary bailee – owner did not voluntarily relinquish possession even if mislaid.
                                                            iii.      Voluntary bailee – owner intentionally handed property to bailee
                                                           iv.      Three types of delivery:
1.       Actual – the object is physically handed over to the bailee
2.       Constructive – when one gives keys to a safe deposit box or a heavy bureau or chest of drawers to the transferor; this transfers control of the object without actually delivering it
3.       Symbolic – the receipt by the bailee of a thing symbolizing the object of the bailment (usually by transfer of a written instrument)
                                                             v.      Constructive bailment arises when possession of personal property is acquired and retained under circumstances in which the recipient should keep it safely and return it to its owner. Where there is evidence that the bailee received and accepted the object, but not that the bailor intended to deliver it, a constructive bailment arises for purposes of allocating the loss or damage to the object upon its misdelivery.
                                                           vi.      Standards of Care in Bailment (negligence):
1.       If the sole benefit is to bailor, standard of care is gross negligence (a conscious voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party). Usually a gratuitous bailment such as taking care of an object for a friend or neighbor, or one created by mistake.
2.       If the sole benefit to bailee, standard of care is slight negligence (failure to exercise the great care of an extraordinarily prudent person). Usually a borrowed object.
3.       If the sole benefit is mutual, standard of care ordinary negligence (failure to use ordinary care) ex. Leaving a purse behind in the restaurant and found by the busboy
4.       MODERN LAW: everything will be treated as ordinary negligence
Hannah v. Peel –
P found a brooch on D’s property. D never lived on the parcel of property.
If the owner of property has never occupied his land, the finder of the property on this land has a superior title against the land owner.
A landowner possesses everything that is attached to or under his land, and
A landowner does not necessarily possess that which is unattached to his land
If an employee finds a lost article on the employers premises, the property goes to the owner, since the employee is acting on behalf of the owner. This discourages employees to turn in found items, so this can be criticized
Lost property found under the soil or embedded in the soil belongs to the landowner, discourages trespasser from searching through the soil and goes with the idea that landowners own everything on the land, not just the surface.
Modern law wants to do away with categories of lost, mislaid and abandoned, and treat everything as lost. If true owner does not claim within a year, then title goes to the finder.
*Circumstances of the find
McAvoy v. Medine –
A customer of the shop owner placed his wallet on the counter, but neglected to remove it.
A finder has not title to property that is mislaid.
A finder of lost property, not mislaid, has title superior to all the world except the true owner.
When property is mislaid in a shop, the shop owner has a duty to safeguard the property untiol the true owner returns.
A finder can NEVER gain title to mislaid property
Property law should promote the return of lost property to its true owner; therefore lost property goes to finder and mislaid property goes to the shop owner. If property is mislaid, the true owner will most likely retrace his steps and return to store, whereas he would not know to go looking for the finder.
*Modern statute – EVERYTHING will be categorized as lost, that allows something to get turned