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

Property I – DiLorenzo*

Available Actions –

A plaintiff will either bring an action in trespass
An action in trover (conversion)
A coupled action in trespass + replevin (action to recover possession)

P has a property interest, including a right to possess
D intentionally (voluntarily committed act) interfered with this property interest
The interference was without authorization
Resulted in injury
= Damages

Trover (now called Conversion) – Forced Sale
Same as above – but significant interference
Significant does not mean 100% damage
Damages = Full fair market value of your interest

Note: This action would be brought against those that treated someone else’s property as their own and refused to return it.

Replevin (now called “Action to recover possession”)
Same as trespass above
= Recover possession
*Only for personal property
**In realty, it is called ejectment

Property Rights

Property interest is a bundle of rights:
The owner creates legal duties (exclusive right to the property) and the world has the obligation not to interfere with those rights –
Right to possess
Right to use
Right to alienate (transfer your interest)
Right to destroy
*These rights are exclusive and perpetual (forever, if he dies, then successor gets them)
**Bundle can be divisible (divided), you do not need them all

For the purposes of this class:

Real estate – wherever the property is located, that state’s law applies

Personal property – wherever the transaction or claim occurred, that state’s law applies

Intention & Possession – Wild Animals
Policy: For the sake of certainty and preserving peace and order in society.
Certainty: Courts want objective evidence that you intend to acquire property interest.
Also – To minimize quarrels and litigation

Possession was first applied to the rights of capture (not pursuit) of wild animals. Later it was applied to natural resources.
Requirements for wild animals –
1.      Intention – to appropriate the animal for individual use; since rights create obligations, you do not want to confer rights to someone that does not want these obligations
Think: When you kill an animal, do you intend to kill? Probably, unless many hunters, more than one sh

the personal property of the owner, so there is no loss of rights.

Escape & Loss of Rights – Wild Animals
Majority rule: A right is lost when they escape without any intention of returning. They regain their natural liberty and property of them instantly ceases. Even if a wild animal was not raised in its natural habitat, it is in terms of its natural habitat (i.e. fox), if it is encountered in its natural habitat, would it generally be seen as a species of wild animal?
Minority rule: Escape from artificial restraint (i.e. sea lion escaped and found near Atlantic Ocean)
Exception: Animum revertendi – has intention to return, as long as animal has a habit of returning, the original owner does not lose their right to the animal
Proof:               1. How do we prove habit of returning?
Infer from prior actions. Past action of animal proves habit.
Animals sometimes lose their habits and are no longer bound by animum revertendi
2. How do we prove habit was lost?
Refer from their current actions.