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Property II
John Marshall Law School, Chicago
Hunt, Cecil J.

I.) By Capture: First to Possess
1.) Animals ferae naturae can be possessed only by bodily seizure, killing, or “mortal wounding”, “depriving the animal of his natural liberty thereby manifesting an unequivocal intent to appropriate it”
                        a.) Mere pursuit of a wild animal does not constitute possession of that animal.
                        b.) First to reduce it to possession owns it
                        c.) Ferae Naturae: Wild animal; even in a cage. Always seeking its freedom
·          In cage = ownership
·          Escapes into nature = unowned
·          Escapes into non-natural habitat (elephant in the city) = prior claim
·          But see: Prior possessory interest:
§   Mark of prior appropriation?
§   Is there a gray fox, where these animals are not indigenous?
·          But see: Domitae naturae: domesticated animals belong to the prior possessor when they wander off
§   Animus revertendi: a wild animal becomes domesticated when I demonstrates a propensity to return home
d.) Exception: Rationae Soli: by virtue of the soil
·          I own everything on my land; right of 1st possession
e.) Wild Natural Resources:
2.) A custom regarding acquiring ownership of animals ferae naturae should control if:
a.) it is reasonably objective
b.) been recognized by many people
c.) been acquiesced in for many years
d.) has limited application
·          Here, the acquisition of whales, by harpooning them with customized lances used to identify the owners once the whale has washed ashore. Too hard to acquire physical possession of the whale after its shot in the ocean
3.) Where a violent or malicious act is done to a man’s occupation, profession, or way of getting a livelihood, there an action lies in all cases (Policy Ends Control)
            a.) Unless:
·          Neighbor is a competitor in the same business; or
·          Engaged in a equal or greater sociable activity. 
§ Greenpeace Hypo: GP is serving society by ensuring the longevity of the fishing market. The fishermen serve society by providing a market for fish, jobs, etc. What happens when both sides a proving a positive social benefit? CH: Let both parties do what they are doing!
II.) By Creation: First to Create
1.) At Common Law, a man’s property is limited to the chattels which embody his invention. Others may imitate these at their pleasure.
2.) Legislature attempts to balance NO property rights (which disincentivizes production) with TOTAL property rights which could create a costly monopoly. ‰, laws are enacted to create “limited monopolies”
1.) Patents: granted for novel, useful, and non-obvious processes or products
            i.) last for 20 years from the date of application; not renewable
            ii.) Laws of nature, physical phenomenon, and abstract ideas are NOT patentable
2.) Copyrights: protect the expression of ideas, not ideas themselves
            i.) must be independent creations
·          Does not apply to “overall theme,” where significant differences in the nature and attitudes of the characters exist
            ii.) begins as soon as the work is set down in a tangible medium
            iii.) usually last 70 years after the death of the author or creator
            iv.) Subject to FAIR USE: brief quotes in reviews, text book references
3.) Trademarks: words and symbols indicating the source of a product or service
            i.) protection against use of similar marks by others when such use might cause confusion
            ii.) good as long as it is used in the trade
iii.) good unless they become “generic”; ex: Kleenex, Xerox, Band-Aid
III.) By Find: Subsequent Possession
1.) a.) Finders title is superior to all except true owner AND prior posessors
·                                                          Prior possessor’s claim is superior to subsequent possessor’s claim
·                                  F1 can NOT say “I own it,” but only “I have superior title to you!”
·                                                          Finder has DUTY OF CARE over items he finds (gross negligence)
·                                                          Even if F1 stole the property, his claim is still superior from someone who tries to take it from him!
b.) Bailement: rightful possessor of goods by another, with the expectation that it will be returned
                        i.) Bailor (gives) / Bailee (receives)
                        ii.) Requires possession of goods (control & dominion) with intent to exercise control
                        iii.) No thieves
            2.) Abandoned Property: true owner has voluntarily given up any claim of ownership
                        a.) Finder acquires title
                        b.) But see, trespassers: wrongful behavior is not usually rewarded
            3.) Lost and Mislaid Property:
                        a.) Finder vs. Landowner:
                                    1.) Trespassing finders lose
                                    2.) Employee finders: generally, employees must surrender the find to their employers
                                    3.) Invitee finders: found property goes to the landowner
                                    4.) Embedded objects and TREASURE TROVE:
·          Embedded objects go to the landowner
·          Treasure Trove: look to consider the circumstances and whether it was lost, misplaced, or abandoned
5.) Private Homes: homeowners get objects found in their homes
·          But see, where the owner is ABSENTEE owner, he must be in CONSTRUCTIVE possession of the home to claim items found there that he didn’t know about
6.) Public Places:
·          Lost goes to finder
·          Mislaid goes to landowner
IV.) By Gift:
            1.) Voluntary transfer of property for no consideration
            2.) Elements:
                        1.) INTENT to make a gift
                                    a.) must be intent to transfer TITLE (vs. just mere possession)
·          Must be a present transfer of present or future interest
b.) gifts causa mortis are revocable if the donor recovers from the threat of death (if the intent was only to make a gift upon death)
·          Or automatically if death is caused b

ne of Acquiescence: period of acquiescence (perhaps shorter than the SOL) is evidence of an agreement between parties fixing the boundary lines
3.        Doctrine of estoppel: one neighbor acts as though the boundary line is in a certain place, and the other neighbor relies on this to their expense and detriment, other neighbor is estopped from asserting actual boundary line.
iv.) Disclaimer of Ownership: AP disclaims ownership to O in order that O will not sue him DESTROYS element of hostility.
·          AP can not “lull” O into a loss of rights
4.) Continuous:
            i.) occupation without interruption
                        ii.) Pattern of occupation that you would see in acts of actual owner of property. 
·          Must use the land as a reasonable owner would do on similarly situated property. 
§ Use of summer home during ONLY the summer every year IS continuous
§ Even if occupant does not reside on the property and for long periods doesn’t use it.
§ But see, Abandonment:leaving with no intention of returning before the statute has run causes the statute to stop and requires a new entry and the process to begin a new
iii.) Tacking: using the time of possession by a prior owner to add toward SOL for one’s own AP claim
·          Requires PRIVITY
1.        Mutual transfer
2.        Successive
3.        Voluntary
iv.) When there are two APs (AP v AP)
                                                            i.) AP w/invalid title can sue to eject AP w/o title w/in statutory period
ii.) However actual possession trumps constructive possession in absence of ejectment at end of statutory period
iii.) Second AP’s presence can interrupt first AP’s continuity of presence adverse to the TO unless first AP sues to eject second AP
v.) Color of Title and Constructive Adverse Possession:
            i.) NOT A CLAIM OF RIGHT
            ii.) Not required in most states, but essential to acquiring title by adverse possession in a few.
iii.) Gives important advantages to the AP
§ possession under color of title of only part of land, is considered constructive possession of all the writing prescribes.
§ AP gets more land then actually occupied.
iv.) If AP knew deed was false they won’t get benefit of Color of Title
§ must have good faith belief through out period of statute of limitations
vi.) Disabilities:
            i.) Tolls the SOL during the disability period
ii.) Must exist at time the cause of action arises
§ Disabilities arising later don’t count
iii.) Legal Disabilities: