PROPERTY
DiLORENZO
SPRING 2012
· Characteristics of Property
o A bundle of rights that are
§ Exclusive
§ Perpetual
o Rights include
§ To possess
§ To use
§ To alienate (transfer)
§ To destroy
§ To the fruits & profits
o But, do you have to have all these rights for something to be considered property?
§ No, think of leases, IRU, Goodwill
· Jurisprudence
o Formulative
§ Find the rule of law
§ Apply it to current matter
o Sociological / Policy based
§ Does the outcome of the formulative method fit to desired policy?
§ If not, which method wins
· Actions in property
o Trespass
§ 1.) P has a possessive right, based in property
§ 2.) D has intentionally interfered with that right
· Not maliciously, but by exercising dominion
§ 3.) Interference was not authorized
§ 4.) P suffers damages
· If not physical, than the time value of depravation of use
o Replevin / “action to recover possession”
§ 1.), 2.), 3.) all apply
§ 4.) Damages demanded are that P demands the return of property
o Trover / Conversion
§ 1.), 2.), 3.) all apply
§ 4.) Interference was significant
§ 5.) Damages demanded are forced sale for fair market value
· Pierson (shoots fox at last minute) v Post (hunting w/ dogs, in hot pursuit)
o General rule is that to own a wild animal, you must “posses” / “occupy” it
§ Post tries to convince court that pursuit of fox = occupancy
§ Pierson tries to convince court that shooting fox = occupancy
o Is pursuit a kind of occupancy?
§ Formalistically, no, it is not a form of control over animal
§ Sociologically policy interests in control as a sign of ownership
· 1.) to encourage certainty of who owns an animal
· 2.) to prevent quarrels
§ Court rules for Peirson
· Courts want objective evidence of ownership
· Courts want to give notice of ownership to rest of the world
· To acquire property rights in an animal
o 1.) Possession & intent
§ A.) Posses the animal
· Certain control
· Deprivation of liberty
§ B.) Intend to possess
· Rights carry responsibilities
o Because we don’t want to saddle people with the responsibilities (EG lawsuit for an animal attack) of ownership one those who don’t clearly desire the rights of ownership
o 2.) Ratione Soli (by reason of the soil)
§ If trespasser attempts to acquire an animal via possession & intent AND does so on private property, the rights to the animal accrue to the owner of the land
· Does not apply to wild animals
· Policy reason of preventing trespassing
· McKee (owns land with a stream that holds mussels) v Gratz (takes mussel shells)
o What is a wild animal?
§ General rule that a wild animal is one when seen the general public assumes there is no owner
· EG: dog = owner = domestic; tiger = depends on circumstances
o Here, there was also a question of trespassing?
§ But maybe not, because there was custom of implied consent to be on land, common in wide open areas
· Implied consent can be restricted/disproven by:
o 1.) enclosing / fencing the land
o 2.) Posting “no trespassing”
· Mullett (seal capturer, but looses in NYC) v Bradley (found seal)
o Can you lose property rights in wild animals?
§ Yes, if they escape with no intention of returning
o Escape defined as “regaining natural liberty”
§ 1.) animal must return to natural habitat
§ 2.) animal must be free from artificial restraint
o Policy reasons for this is that people are put on notice by any animal that is not in its natural habitat
§ Exception: trained animals (animum revertendi) are not lost if clear that they have an owner
· Identified by:
o Species – typically domesticated
o Location – out of natural habitat
o Habit of return
o Marked – EG branded
· Open issue of how long these identification methods persist
· This policy may clash with that of allowing ownership if animal has “regained natural liberty”
· Analyzing animal questions:
o Q1: Wild animal?
o Q2: Has original owner lost rights (“regained natural liberty”)
§ Q2A: Natural habitat
§ Q2B: Unrestrained
o Q3: Is the creature animal revertendi?
· Water
o Similar to animals
§ Free, can capture, roaming, etc
§ So treat like animals and allow people to assert ownership via acquiring
· But is this a policy we want to encourage?
o Yes, also makes sense as a method of showing objective proof of ownership and notice to others.
· Possible to have intention?
o Yes, rights carry responsibility (EG drowning)
· Ratione Soli?
o Yes, we still want to discourage trespass
· Defeasable (losable)?
o Yes, if it escapes and returns to natural habitat, it is impossible to discern from the rest of the water
o So , we adapted the laws of animals to water
§ But, what if people capture too much water?
· Reasonable use doctrine:
o 1.) Only can capture for productive use
o 2.) Can’t unreasonably interfere with those downstream
· Oil & Natural gas
o Differs from water and animals, because of capex to drill
o Landowners don’t yet own the oil beneath them, because it has not yet be captured
§ Bu
asi (not voluntary, but imposed by the law to serve the policy of maximizing return to owner)
· Public vs private
o Determined by “generally shared expectations”
§ A public place is where if you find property it generally expected that you keep it
§ A private place is where if you find property it is generally expected that you turn it in
Mislaid property
Lost property
Public
Quasi bailee (b/c owner likely to remember THAT THEY LAID IT DOWN and return)
NOT a quasi bailee (b/c owner unlikely to return)
Private
Quasi bailee (b/c owner likely to remember THAT THEY LAID IT DOWN and return)
Quasi bailee (b/c owner likely to remember WHERE THEY HAVE BEEN and return)
· Hanah vs Peel revisited
o Q1: Item status
§ Brooch was not abandoned (exclusive inference)
§ Mislaid is more reasonable than lost
o Q2: Place status
§ Private place
o Therefore Peel was the FIRST finder and a quasi bailee
· Kids in the trash pile
o Q1: Item status
§ Cash not abandoned (exclusive inference)
§ Mislaid or lost
o Q2: Place status
§ public place (shared expectations of a trash pile)
§ Therefore cash was lost and lot owner is not a quasi bailee
o Q3: Possession
§ Boys found it so they possess it
o Q4: Intention to possess
§ Boys were “confused” so they didn’t clearly intend to possess
§ Girl did have full intention
o Judge rules that together they had constructive possession, and should split 50% / 50%
· NY statute – Personal Property Article 7B
o Gives effect to people expectations that finders eventually gain ownership
o Step 1.) must deposit property with PD
o Step 2.) PD must notify / attempt to notify the owner
o Step 3.) PD must safeguard property for set time (up to 3 years for high value)
o Step 4.) If not claimed, finder takes ownership
o Finder defined as FIRST person to take ownership
