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Property I
Southern Illinois University School of Law
Lindsey, R. Hokulei

Lindsey Property I Outline (Fall 2011)

I. Wild Animals and other Unclaimed/Undetermined Property

a) Rule of Capture

i) Occupancy

(1) Must deprive the animal or object of its natural freedom

(a) Can be done by killing, capturing, or mortally wound the animal while still in pursuit

(2) Must be under your control

(3) Simply pursuing the object is not enough

ii) Whoever has occupancy is in possession of the object and so that object is there’s

b) Rule of Discovery (Old English Rule)

i) Occupancy of Land

(1) Although a person occupies a land does not mean they hold absolute title of the land.

(2) Those without absolute title of the land are NOT able to:

(a) Sell the land

(b) Transfer the land

ii) Rule only applies to Western Nations

iii) Allows the first nation to discover new land to deal with the natives

iv) So natives may be allowed to stay on the land, but it doesn’t mean the land belongs to them

(1) i.e. natives don’t have absolute title

v) Natives weren’t qualified for First Discovery Rule b/c:

(1) Natives didn’t develop land to its economic potential

(2) Natives had no obvious claims or system to show property bounds

(3) They were heathens so westerners would take land in exchange for religion, technologies and civilization

c) Absolute Title Consists of All 4:

i) Right to Use

ii) Right to Possess (only right natives had under discovery rule)

iii) Right to Exclude

iv) Right to Convey

d) Pierson, M’Intos- Fisrt in time, First in Right

i) Minority Rule: First to discover valuables under property is the entitled to the valuables

ii) Majority Rule: First to own the surface of the property is entitled to everything from the depth of the earth to the heavens above the land

II. Gifts

a) Types:

i) Inter vivos- Donor to donee while donor is still alive (Intent, delivery, acceptance)

(1) Intent must be immediate

(2) Delivery must divest donor of all control and invest complete control to donee in order for gift to be an effective inter vivos gift

ii) Testamentary- Gift only takes effect when donor dies (i.e. a will)

iii) Causa Mortis- Donor living but anticipating immediate death

(1) Same requirements of inter vivios gifts along with imminent death of donor

(2) The threat that is threatening donor’s imminent death must be what kills him

(a) i.e. kidney failure is expected to kill the donor but then he gets hit by a car and dies on his way to the hospital

(i) causa mortis gift would be ineffective

(ii) Causa mortis gifts have a more lenient delivery requirement

iv) Conditional Gifts

(1) i.e. engagement rings are conditional gifts based on the condition of a wedding between the donor an donee

(2) Act of marriage is the condition, not the acceptance of the engagement

(3) No fault basis for who ended the engagement, so if wedding does not happen, the man gets the ring back, even if he broke off the engagement

b) Delivery

i) Manual Delivery

(1) Donor physically gives the gift to the done (completely effective)

ii) Constructive Delivery

(1) Symbolic delivery (i.e. you want to give someone your car so you give them your keys or deed to give away your house)

(a) S.D. is only valid if it’s impossible or impractical for actual manual delivery

iii) Law requires delivery because it provides ppl with objective evidence and corroborates intent

III. Finders Law

I. Types of Property

A. Abandoned Property- abandoned when the owner no longer wants possession of it

a. Owner voluntarily relinquished all right, title and interest in prop.

i. Belongs to finder against all others including the orig. owner

B. Lost Property

a. Owner unintentionally and

b. Owner involuntarily parts with possession and

c. Does not know where the property is

i. Becomes the property of the finder above all others except the true owner

C. Mislaid Property

a. Owner voluntarily and

b. Intentionally places property in a specific location but

c. Later overlooks or forgets where the property was placed and eventually found by another party

i. Finder gets no rights in property

ii. Owner of the land where property is found is owner (not finder) of found property over all others except true owner

iii. Because if owner eventually remembers where they mislaid property they will most likely return to that location (Benjamin v. Linder Aviatio

t a bailment b/c although the garage has possession of your car, you have the keys so the garage does not have control over the car

ii) If you pay to park, normally more security so more similar to a bailment, which means garage owner has a higher standard of care

(1) However if there are signs posted in the garage saying they are not responsible for damage to the vehicles, then garage probably not liable for damages b/c of mutual assent

(a) i.e. garage is only assenting to the bailment under certain circumstances

(b) garage is not arguing there is no bailment (clearly there is) but instead contesting the standard of care they must exercise.

(c) So garage owner must prove the car owner knew about the limited liability of the garage and assented to the agreement

(i) However, a simple disclaimer is not always enough to get the garage owner completely out of liability

(ii) Garage may still be held to the ordinary care standard despite liability disclaimer

f) Requirements for Bailments

i) Agreement between bailor and bailee (mutual assent)

ii) Transfer of possession ( bailor gives property to bailee)

II. Adverse Possession

a) Mere possession of property ripens into title

i) Criteria:

(1) Possession must be:

(2) Open and notorious

(3) Actual (or constructive under color of title)

(4) Continuous

(5) Hostile (i.e. under claim of right)

(6) Exclusive

(7) Required period of time

(a) i.e. All 5 for the full duration of the statute of limitations

ii) Possession must indicate adverse possessor’s exclusive ownership

b) When the above is met, the true owner (TO) is barred from retaking control of their land from the AP after the statute of limitations has passed.

i) As a result, AP gets an absolute title to the land