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Property I
St. Johns University School of Law
Parella, Robert E.

Property Parella Fall 2012
I.  Acquisition of Property by First Possession
A.  Acquisition by Capture
1.  For Wild Animals – When you have deprived the animal of its natural liberty along with some intention to appropriate.  Also, note the custom in the industry
·         Mortally Wounding or trapping the animal is sufficient.  But pursuit alone is not.
o    Note.  According to Mullet the phrase natural liberty means ability to provide for itself.
·         Pierson v Post
o    Post was chasing a fox on wild land; Pierson came out of nowhere and killed the fox, even though he knew Post was pursuing it.  Post sued for trespass.  The value of the fox.  Court said he did not have possession
o    Notable Dissent – we should say that property in wild animals should be acquired when one has the reasonable prospect of taking what he has discovered with an intention to appropriate.  (Difficult rule to show evidence for however)
·         Custom in the industry may tailor the rules of possession.
o    Relevant Factor – will the industry become ineffective if other rules violate the custom?
·         Ghen v Rich
o    Plaintiff was a whale hunter who shot a black fin whale.  Defendant bought the whale from Ellis, who found it washed up on shore.  It was customary that after being shot with the bomb lance, the whales would sink and sometimes be washed up on shore.  Bomb lance serves as identification a few days later.
o    Although Ghen maybe did not deprive the animal of its natural liberty, we will find for him because that’s the usage in the industry.
§  An alternate holding would bankrupt the Whaling industry.
2. Exceptions/Limitations for Wild Animals
·         Ratione Soli – owner of the land on which a trespasser captures an animal has a superior title.
o    Except in Navigable waters – Owners of navigable waterway cannot stop fishing on their property because of the public right of fishery
o    Dougalston Manor, Inc. v. Bahrakis: D was anchoring and fishing on P’s part of the river. P had exclusive right based on laws, but public rivers can exclude
§  Notes the difference between navigable in fact, and navigable in law waterways.
·          Animals (more or less) Fixed On the Property – the owner of the property has possession of items on his land that have a more or less fixed Location.
o    McKee v Gratz
§  Defendant took 300 tons of mussels off the plaintiff’s land and made them into buttons.  Court gave Plaintiff the value of the Mussels, even though the stream was navigable and D was exercising his right of public fishery.  Because rights of fishery don’t extend to mussels with a fixed location
·         Escaped Animals
o    Property Interest In Wild Animals is Qualified, it vanishes when the animal regains its natural liberty (its ability to provide for itself)
o    Mullet v Bradley
§  Fisherman found a sea lion and sold it to Defendant.  Plaintiff had placed it on Glen Island with intention to get it back when he could find a spot for it.  Court found for D, P’s lost his property interest because the sea lion, although it did not return back to  its habitat (on east coast) it regained its natural liberty.
o    Exceptions to that Qualified Prop Right
§  Animals that have Animum Revertendi (An intention to return) or is domesticated
ú   Determined by animal’s previous behavior
§  Conti v ASPCA
ú   Plaintiff sued to get Chester back.  Court found domestication even without animum revertendi, because Chester was subject to training and discipline.
§  Do not lose your property interest in an escaped animal in which you are in hot pursuit of
ú   Hot Pursuit – reasonable proximity and time
§  A third exception – was the animal bred in captivity and found in an area where it was unlikely to be?
§  Stevens and Co.
ú   P’s rare black silver fox escaped and a rancher shot it, entrusted the carcass to a trapper who sold it to D.  Court found for P because the fox was semi-domesticated, D knew that the pelt purchased was the product of an industry where many where held captive, and it bore the indicia of ownership.
3.  For intangibles – where a violent or malicious act is done to a man’s occupation, profession or way of getting a livelihood, there lies an action in all cases
·         Keeble v Hickeringill
o    Plaintiff owned and operated a decoy pond for a living.  Defendant shot off a gun on his own property to scare the ducks away.
§  Note – if Hickeringill were to set up his own decoy pond, no foul.  But because his interference was malicious, court ruled for Keeble.
4.  Fugitive Resources
·         Oil and natural gases have a “fugitive character” = wander from place to place
o    Ownership of gas and oil determined in same manner as ownership of wild animals in terms of the rule of capture
·         Water follows American rule of reasonable use
o    It’s a rule of capture, but wasteful uses of water are unlawful and unreasonable if it harms neighbors
§  Groundwater extraction is governed by legislative and administrative programs
·         For surface water, some Western states have rule of first in time (“prior appropriation”)
o    Person who first appropriates water and puts it to reasonable and beneficial use has a right superior to later appropriators
·         Eastern states have riparian rights = each owner of land along a water source has a right to use the water, subject to the rights of other riparian’s
B.  Acquisition By Creation
1.  One’s Ideas Or Expressions
·         International News Service v. AP
o    P and D were competitors,  When AP publishes its news, since it's not property it goes into the public domain.   INS admits to taking news that has already been disseminated in a variety of ways: from AP papers themselves and public bulletin boards these papers use to get information.  They then incorporate the information that they find into their own publications for profit.
§  Court: Palming off your goods as another’s goods is unlawful.  Here, the reverse is going on.  INS was palming off AP goods as its own.
§  “Quasi-property rights” may be invoked to protect against unfair competition by competitors, even when the commodity in question is not “owned” by anyone (like the news).  Especially when the info has value as it does here.
2.  In One’s Person
·         Moore v. Regents University of CA
o    Moore was treated for hairy cell leukemia.  D’s, without his knowing used his cells for research and developed a highly profitable line off of it.
o    Court balanced interests with policy.  Found that the importance of medical research, the possibility that an alternative holding would stifle research and held that conversion does not lie if someone uses your bodily tissue in medical research without your consent.
o    But – there is an ethical, informed consent requirement for doctors.

C.  Other Ch1 Notes
1.  Forms of Action
·         Trover –
·         Replevin –
o      Accession – Where the thing wrongfully taken has been, through time/effort/money of the taker, converted to something completely different and of much greater value, the chattel will be deemed to have lost its former identity and no action for replevin will lie.  (mussels à buttons; body tissue à cell line)
2.  The Right to Include/Exclude
·         The right to property is not absolute.  Owner’s right to exclude is limited.
o    State v Shack
Farm owner tried to exclude non-profits from going on his land to see if the migrant workers needed medical help or legal advice.
§  Court said that property rights are not absolute and that it was a maxim of the common law that one should so use his property as not to injure the rights of others
o    Jacque v Steenberg.
D’s had a mobile home to deliver and the easies

o yield his bounty to the employer.
o    South Staffordshire v. Sharman—Landowner employed D to clean out pool. D found two gold rings. Rings went to landowner even though conceded he was unaware of their existence until the find. The object was found while the worker was doing the job he was entitled to do so premise owner is entitled to found proper.
·         Private Contractors, on the other hand, have no duty to deliver unless it arises contractually
o    Hurley v. City of Niagara Falls – P were doing work on D’s house, found money (less than 5K).  After one year when nobody claimed it, court found that P was an independent contractor.
D.  NY Statutes
New York Personal Property Law Article 7-B Lost And Found Property
·         General purpose – to protect the interest of the true owner.  We give it to the finder if not claimed within a reasonable time because we want to incentivize the finder to do the right thing and turn it in.
·         § 251
o    Property – anything other than instruments
o    Instruments – check, draft, promissory note, bond, stock certificate.  – Where the true owner can be identified, so they are returned immediately.
o    “Lost” = LOST OR MISLAID (abolishes common law distinction)
·         § 252
o    Finders of property valued > $20 have 10 days to deposit it with police. 
o    Finders of an instrument valued > $10 have 10 days to deposit with police
o    Misdemeanor for failure to comply.
o    Or the finder can deliver the object to the owner of the premises on which it was found, provided that the thinks the owner will do the same.
·         § 253
o    The police will give the finder a receipt, hold the property, if found anywhere other than the street – give notice to the owner of the property,
§  An instrument – will give it back to the owner
§  Property
ú   Less than $100 – 3 months
ú   $100-$500 – 6 Months
ú   $500 – $5,000 – 1 Year
ú   $5,000 – 3 Years
§  3 months before period runs out, notice to owner (if known) and finder.  After 3 months, finder has 10 days to claim it
·         § 254
o    Governs disposition of property.  Title to owner if claimed within applicable time. Title to finder if claimed within 10 days after expiration of timeframe, title to state.
·         § 255
o    Disposition to police – no instrument deposited with police shall be sold, destroyed, or returned to finder
·         § 256 – EXCEPTIONS
o    (1) – If finder was a Trespasser at the time, the owner of the property gets finders rights
o    (2) – If finder is an officer or employee of the state or a public corporation (town, village, county) in the course of his official duty, the state gets finders rights.  If in any other case the finder is an employee under a duty to deliver (remember Hurley) the employer gets finders rights.
o    (3) – Anything found on safe deposit premises – the police should hold it for 6 months, then give it to the bank to hold for 15 years.  If unclaimed after 15 years, money goes to state (Remember Cohen)
·         § 257
o    title vests in the finder when the property is delivered to him