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Property I
Southern Illinois University School of Law
Noble-Allgire, Alice M.

FALL 2011
Capture Rule – wild animals are the property of no one unless they are reduced to possession.
Acquisition of Title:
·         “First in time is first in right”
·         Possession- must acquire actual or constructive possession
o   1st person to exercise “dominion and control” (Intent)
o   Mere pursuit is NOT enough (physical control)
§  Must mortally wound or capture in trap so that capture is reasonably certain
o   Constructive
§  example: animals caught in a trap or net; belong to the one who owns and set the trap
Loss of Title:
·         Escape: if animal escapes, and resumes “natural liberty” the former owner loses property rights; animal is now once again “unowned”
·         Habit of return: if wild animal periodically returns to its owner’s home, or is being pursued by original owner, then title is not lost
·         Marked animals: animals marked or branded (typically livestock) escape
o   modern courts typically allow title to be retained to the former possessor as long as it is marked and the owner has made reasonable efforts to recapture
·         Trespass- one who kills game on another’s land forfeits their title to the owner of the property
o   Policy is to prevent trespassors from benefiting from other’s property
·         One who violates a statute (i.e. hunting license) forfeits their title to animals
What is a gift?
·         A voluntary transfer of property from one to another without consideration
·         Must be executed or actually made
·         Gratuitous promises are not binding
Inter vivos gifts:
·         Typically an irrevocable gift
o   Can be conditional
·         “A gift between the living”
·         Three Elements:
o   Donative Intent: intent to make an immediately effective gift
§  POLICY: Purpose is to protect the receiver of the gift from the donor revoking the gift
§  POLICY: Purpose is to ensure that the donor’s intent is followed through
o   Delivery: giving up dominion & control
§  Actual: donee has dominion & control over the gift
ú  POLICY: Consummates the gift; ensures there is no mistake (cautionary)
ú  Constructive: provides donee with access to, or control over, the gift
·         When it is impossible or impracticable to manually deliver the gift
ú  Symbolic: provides donee with an object that symbolizes or represents the gift (i.e. a photo, bill or sale, a deed, or a letter)
ú  Allowed when actual physical delivery is impossible, improbable, and in some jurisdictions, inconvenient
·         Or with unequivocal donative intent
o   Acceptance
§  A donee’s assent, either by express act or by implication from conduct
§  POLICY: gives donee the option to reject the gift; protects the donee against an unwanted gift
Conditional Gifts:
·         A gift subject to a condition subsequent
·         Conditions are typically expressed, but may be implied
·         Generally should be in writing, “proof problem”
·         Fault or No-fault
o   Fault: minority opinion
§  Involves an assessment of who broke the contract
o   No-Fault: majority opinion
§  Doesn’t matter who broke the contract, the gift reverts back to the donor
Testamentary Gifts:
·         A gift that the donor intends to take effect only at the time of the donor’s death
·         Traditionally made via a will
o   A written instrument that complies with the state’s statute governing testamentary gifts
o   Must be signed in the presence of disinterested witnesses and in the presence of a notary public who acknowledges the will
·         Donor may make changes to the will at any time
·         Donor may choose to make inter vivos gifts
o   If this happens, those assets would not pass into the “estate” and thus would be then excluded from the will
Causa Mortis Gifts:

·         Key factor is where it is found
·         POLICY: rewards finders for honesty
Mislaid Property:
·         True owner intentionally/voluntarily placed property, inadvertently forgotten
·         RULE: owner of locus in quo wins against all but true owner
·         finder acquires no rights to the property
·         POLICY: true owner may remember or retrace steps to recover
Abandoned Property:
·         intentionally/voluntarily relinquished, true owner no longer wants possession
·         RULE: finder gets rights superior to everyone (including original owner) (same as first possessor)
·         original owner gives up all rights, titles, and interests in property
Treasure Trove:
·         coins, currency, & other items buried/hidden and of such antiquity that true owner is dead/undiscoverable
·         RULE: traditionally belonged to the king, but today, finder gets rights superior to all but the true owner
·         MODERN: goes to locus in quo
·         POLICY: rewards finder
Standard of review is VERY important!!
Factors Test:
·         Status of the property
o   Lost, mislaid, abandoned, treasure trove
·         Status of the finder
o   Trespassers – when a trespasser finds an object on someone else’s land, courts are likely to deem it mislaid and award it to the landowner
o   Employees – when an employee finds an object in the course of employment, courts have often deemed the object mislaid and awarded it to the locus owner or employer
·         Location where the property was found