Property
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)
§ EXCEPTIONS:
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!!
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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