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Property I
Rutgers University, Newark School of Law
Ball, Carlos A.


A. Acquisition by Discovery

1.Johnson v M’Intosh – (1st in time) Discovery doc. vested title to discoverers and Indians were tenants. Restriction on alienability (Transferability) of the tribes occupancy right à they could only transfer their limited rights to the discovering sovereign. They could not trfr absolute title to others. 1st occupancy theory reflects the familiar concept of 1st-in-time: the 1st person to take occupancy or possession of something owns it. Labor theory.

B. Acquisition by Capture

1. Pierson v Post – (fox); Prop in wild animals is only acquired by occupancy, and pursuit alone doesn’t constitute occupancy or vest any right in the pursuer. No one owns wild animals in their natural habitats. Under the CL capture rule, prop rights in such animals are acquired only through physical possession. The first person to kill or capture a wild animal acquires title to it. Here, Pierson was the true owner, because he had been the first to actually kill or capture the fox.

2. Keeble v Hickeringill – (duck pond); Damages may be recovered for the intentional frightening of game off another’s land. P owns ducks b/c he owns land u/n them. Theory of malicious interference with trade – what was the other party’s intent (Rationale solei)?

a. Constructive Possession: I did not have actual physical possession, but a trespasser cannot make a claim for my land. A trespasser who captures a wild animal on the land of another might still have no rights to the animal as against the landowner, even though the landowner never had actual physical possession or control and even thought the trespasser does. Trespasser does not have a legal right greater than the landowner.

3. Popov v Hiyashi – (baseball)- Conversion = wrongful dominion over personal prop of another. There must be actual interference with the P’s dominion. Wrongful w/holding of prop can constitute actual interference even where the D lawfully acquired the prop. If a person entitled to possession demands its return, the unjustified refusal to return propà conversion. Ballà intentionally abandoned when hit. The 1st person who came in possession of the ball became its new owner. Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal prop and the failure to continue the effort is interrupted by the unlawful acts of others, the actor has a pre-possessory interest in the prop. That pre-possessory interest can support a cause of action for conversion. Both P and D had an equal and undivided interest in the ball and to effectuate this ruling, the ball must be sold and the proceeds divided equally.

C. Acquisition by Creation (plus the Right to Exclude)

1. International News Svc. v Associated Press – cannot copy news for profit; Publication for profit of news obtained from news-gathering enterprises is a misappropriation of a prop right. Each party is u/n a duty to play fair. Even though news is not owned by anyone, ct gave them quasi prop rights b/c they put in labor(fake prop rights)

2. Cheney Brothers v Doris Silk Corp – if item not copyrighted patentedàno remedy for imitation.

3. Smith v Chanel – if item not patentedà can copy and claim item is same in ads.

4. Jacque v Steenberg Homes, Inc. – (mobile home trespass) Nominal damages given b/c no actual damage done. Ct defends prop right by “Prop Rule” giving owner veto power/the right to exclude and include.

5. State v. Shack – migrant workers/gov’t services case. The Ct held that owner’s prop interest did not extend to the right to exclude individuals providing migrant farm laborers access to governmental servicesàno trespass. Title to real prop doesn’t include dominion over the destiny of persons the owner permits to come onto that prop. A man’s right in his real prop is not absolute. Necessity, private or public, may justify entry upon the lands of another.

D. Acquisition by Find
Finder v. Locus Owner
a) Often the finder will claim an object and so will locus owner, this assumes the owner does not own the object, if she does she will prevail.
b) Finder is a trespasser – the owner always prevails
c) Finder is employee – Some cases hold the employee cannot keep the object. Employee is acting for an employer, or has a contractual duty to report the find.
d) Finder on premises for limited purpose – i.e. cleaning out a sewer drain
e) Object in Soil – awarded to owner of premises
f) Object found in private home – usually awarded to the locus owner. Homeowner has an intent to exclude everyone and admit persons only for specific purposes that don’t include finding prop. Homeowner has strong expectations that all objects inside home are his including ones he is unaware are his.
g) Object found in public place – A valuable object left in a public place is considered mislaid prop and awarded to the owner or occupant of the premises, not the finder.

1. Armory v Delamirie – (jewel case). A finder doesn’t have absolute title, but over everyone except true owner. If he loses it, he can reclaim it.

2. Hannah v Peel– (Brooch case). D never had physical possession of brooch or propàso P had superior title; The finder of a lost article is entitled to it as against all persons except the real owner.

a. Lost objects found either w/in a house or embedded in the soil are generally awarded to the landowner, not the finder. The status of the finder is sometimes relevant here. A long-term tenant who finds an object will often prevail over the landowner, while a finder who is merely the landowner’s employee will not.
3. McAvoy v Medina – wallet accidentally left at barber shop; Misplaced goods (items intentionally placed by the owner where they were found and then forgotten or left there) are deemed to be in the bailment of the owner of the prop on which they are found for the true owner.
a. A valuable object left in a public place is considered mislaid prop and awarded to the owner or occupant of the premises, not the finder.
b. Lost – The true owner has been unintentionally dispossessed of the prop. The finder has better title to lost stuff than anyone except the true owner.
c. Mislaid – The true owner intentionally left the stuff sitting around, intending to pick it up, but forgot. In this case, the owner of the prop where the stuff is found has better title to the stuff than anyone except the true owner.
d. Abandoned – The previous owner intentionally gave up the prop and left it lying around so that someone e

owner to notice, b/c he has to have the opportunity to kick her off.

3. Howard v Kunto– mistake in deed as to tract conveyed. Where mistaken tract transferred by several successive purchasers, there is sufficient privity of estate to permit tacking and thus establish A.P.

4. O’Keeffe v Snyder (AP of Chattels) – (painting case); The discovery rule controls in actions involving the A.P. of chattels. SOL is generally shorter for chattels.
a. NY Rule – SOL does not begin to run on the owner of stolen goods until the owner knows who has the goods and makes a demand for return of the goods that is rejected. If the person in possession refuses to return, SOL begins to run. NY rule puts the risk of buying stolen goods on purchasers who should make inquiries.
b. Due Diligence Rule (Majority) – SOL does not begin to run on the owner of stolen goods so long as the owner continues to exercise due diligence in looking for them. Conduct of the owner, not possessor is controlling. SOL starts when owner first knows or reasonably should know through the exercise of due diligence where the stolen goods are.

E. Acquisition by Gift

Newman v Bost – (life insurance policy); A constructive deliver of a causa mortis gift will be effective where it plainly appears that it was the intention of the donor to make the gift, and where the things intended to be given are not present, or where present, are incapable of manual delivery from their size/weight. Items placed inside a chattel which is intended to deliver can be regarded as questionable.
a. Types of delivery: manual (physical trfr), construction(e.g. key), symbolic
b. A gift causa mortis – gift of personal propin anticipation of the donor’s imminently approaching death. It requires all 3 gift inter vivos elements, plus the donor’s anticipation of imminent death.

2. Gruen v Gruen- inter vivos painting via letter. Can make current transfer of interest, while retaining possessory interest. A valid inter vivos gift of chattel may be made where the donor reserves a life estate and the donee never has physical possession until the donor’s death.
a. 3 requirements for a valid gift inter vivos: intent, delivery, and acceptance.
b. Cts prefer wills over gift causa mortis
3. Remedies of Possessors:
a. Trover – to recover the value of P’s chattel where the D has converted it (sold it to unknown party).
b. Replevin – to recover possession of a chattel that D wrongfully destained.
c. Ejectment- to recover possession of land
d. Trespass suit – $ for invasion/damage.
4. Rights of Owners: use, trfr, exclude (except in emergencies or necessity).