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Property I
Southern Illinois University School of Law
Holte, Ryan T.


Professor Holte

Fall 2014

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 “est

found counts

· Common law: finder acquires rights over all but the true owner

· 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