Select Page

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

Property Noble-Allgire Fall 2013
Property- (1) The right to possess/use and enjoy a determinate thing -tract of land/chattel
        (2) The right of ownership.
        (3) Any external thing over which the rights of possession, use, and enjoyment    
              are exercised.
Rights you have with Property
1.Right to Exclude – landowner can get punitive damages even if he did not receive any monetary damages.
2.Right to Possess and Use Property.
3.Right to Transfer Property.
Rule of Capture- Who ever is prior in time wins.
            Capture of wild animals: wild animals must be captured to be owned. Mere chase
              isn't enough, and an owner of land does not automatically own the wild animals on
              the land.
            Wounded or trapped animals: (1) If an animal has been mortally wounded or
              trapped so that capture is practically certain, it is treated as captured. (2) A
              competitor can interfere with another person's attempt to capture only if he
              intends to capture the animal. (3) Generally a captor must acquire physical control
              over the animal absent a custom to the contrary.
            Animus Revertendi: Captured wild animals that develop a habit of returning to the
              captor’s property continue to belong to the captor as they roam at large.
            Escaped wild animals:  Original captor loses possession unless second captor has
              notice that the animal has escaped from someone with prior possession.
            Limitations on capture of wild animals: congress has enacted laws to protect
              endangered species, and a state can regulate its natural resources under its police
Pierson v. Post.- As P(Post) was hunting/chasing fox, D stepped in and killed it, knowing it was chased by p, and took it away. P sued D for trespass and damages against his possession of the fox.
Rule: mere chase is not sufficient to give ownership (would create a slippery slope).  No matter how unkind D’s conduct was, possession/property was gained when D killed the fox. 
No legal right given to P (landowner).  Legal right of fox given to D when he intercepted/killed the fox.
Mere pursuit does not give you property right of an animal.
Gifts (4 types)
A.  Inter Vivos Gift: Most common type (B-day, x-mas, etc..) “A gift between 2 living     
                        i. Three requirements for gift to be legally effective to transfer ownership..
                                    1. Donor must have ‘donative intent’ (Intent to make an immediately
                                             effective gift)
                                    2. Donor must ‘deliver’ (could mean written in will) the object of the   
     gift. Delivery could have enough evidence to show donative intent.    
     If Physical Delivery cannot occur, Delivery could also be: 
     Constructive (give an item that donee then      
     gains access/dominion control to item) or
     Symbolic (ex. Picture of house given to represent the house, or
    piece of paper.)
                                    3. Donee must ‘accept’ the object of the gift.
                        ii.  Gift is irrevocable once requirements are met.
Case Example: CoA-collection of inter vivos gift.
In Re Estate fo Evans, Supreme Court of PA:  Donor taken care of for years by appellant. 
Donor told numerous people he gave app. keys to safety deposit box, and told numerous ppl contents belonged to him (INTENT). Did not meet Delivery.
Rule: A giving key to safety deposit box does NOT satisfy delivery (Dominion control/access to box was not transferred.  Donor opportunities to take steps to invest dom. control in donee but never took step to do so.
            B. Conditional Gift: A gift that take effective immediately, but is subject to a
                                                    condition that will, if it occurs, terminate the donee’s ownership.
i.                     If done meets the conditions, gift is irrevocable (Like inter vivios gift)
ii.                   Condition Precedent: in order to get the gift you must ______, then you get gift once you complete condition.
iii.                 Condition Sub

iii.  The donee’s ownership, however, is subject to a condition subsequent
      (Subject to the risk of being terminated if 1 or 2 conditions later occurs)
            1. Condition 1: The donor might changer her mind and revoke the gift.
            2. Condition 2: the donor might not actually die as a result of the
                                           particular peril that place the donor in contemplation 
                                           of imminent death.
            3.  If either condition occurs, the gift is revoked. ALSO, if donor dies as
                  expected and never expressed any intention to revoke the gift, the
                  gift is absolute.
                        IV.  DELIVERY: made by actual physical/manual transfer,
                                                constructive/symbolic(usually if physical delivery could not
                                                occur either b/c item too big or person physically incapable)
                                    *Evidentiary v. Cautionary.  Purpose: that gift has been made.
Case Example: CoA claiming gift causa mortis
Scherer v. Hyland- P and D lived together for years.  D got in car accident, forced P to take
            care of D for years.  D wrote 2 notes stating she was depressed, sorry, and all of her
            estate and $ belonged to P.  D committed suicide. TRANSFER/DELIVER?
Rule: So much evidence for donative intent that it constituted delivery (B/c of an
abundant amount of evidence of intent, we can be lenient with delivery)
Unable for physical delivery: because of suicide
Endorsed settlement check, wrote out on paper her intent-Substantial step for her
Purpose.  Placed on visible kitchen table.