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Property I
St. Johns University School of Law
DiLorenzo, Vincent M.




· 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


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)


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