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

PROPERTY – SPRING 2015

Professor Parella

I. ACQUISITION OF PROPERTY: CAPTURE

A. WILD ANIMALS Ferae Nature- unowned property

a. To obtain ownership of a wild animal you must deprive it of it’s natural liberty [pursuit alone is not enough]

i. Mortally wounding is sufficient

b. Also dependent on who’s land the animal is on

i. Ratione soli – by reason of ownership of the soil

B. CONSTRUCTIVE POSSESSION

a. Being construed “as if” you have possession

b. If someone were trespassing and caught a wild animal passing on a person’s land, the person will be deemed to have constructive possession as to not reward the trespasser

C. OWNERSHIP allows for:

a. Use and enjoyment

b. Alienability [right to transfer]

c. Sale [right to sell]

d. Gift

i. Donative Intent

ii. Transfer

D. ESCAPE

a. Possession is a qualified interest in an animal – if they escape, the interest is lost

i. Exceptions:

(1) Animus revertendi

(i) Proof is required that the animal has a custom of leaving and returning

(2) Hot pursuit

b. Interest is lost once the animal regains it’s natural liberty:

i. State in which it can fend for itself

II. FINDERS

A. GENERAL

· Finder – the guy who finds someone else’s property

i. Possession raises the presumption of title.

ii. One who takes property from the possession of another can only rebut the presumption by proof of superior title

iii. One who has obtained possession of property, whether by finding, by bailment, or mere tort, has a right to retain that possession as against a wrongdoer who is stranger to the property

· In absence of the true owner we protect the person who has possession.

i. If both claim possession, it is who has superior possession

· General Rule: a thief has no true title of property

· Innocent converters: a party may not know that there was an owner, no conscious intent to express dominion over another’s property

B. DAMAGES

a. Replevin

i. Specific Performance (I want my stuff back)

b. Trover

i. Seeking $$ [NOW CONVERSION]

c. Conversion

i. Unlawful dominion over another’s property

ii. Π is seeking $

2. ABANDONMENT

a. Generally, you don’t abandon title to real property [not including tenancy] you abandon title to chattel

b. Requirements for abandonment

i. Relinquishment of possession

ii. Intention to abandon

1. We don’t ordinarily assume that someone just abandoned

3. WHERE WAS IT FOUND

a. Private [in a home]

i. Property owner has the right to exercise their use and enjoyment of the land – and items found on it

ii. What if the finder was a tenant?

1. Claim is between finder & landlord.

a. Can the landlord claim prior possession? Not a lot of law on this.

2. When you have a valid lease, the tenant has a property interest (possessory), limited in duration. The landlord also has an interest, reversion, also called a future interest (non-possessory).

3. If chattel was on the premises before the tenant à landlord could have possessory interest

4. If the chattel came onto the premises after the lease à the landlord has no possessory interest.

b. Public [in a store]

i. No one’s right exists here

ii. Bridges v Hawkesworth: money in envelope found on the floor in store.

1. Categorized as “lost” in “public” à finder won possession rights

iii. Foulke: “mislaid” in a “public place” à the owner of the premises wins

iv.

4. NATURE OF THE ITEM

a. Lost

i. Someone involuntarily gave up possession

b. Mislaid

i. If someone put it aside and had intention of coming back and didn’t, voluntarily gave up possession. It’s as if the true owner entrusted it to the possession of the true owner of the premises.

5. WHO FOUND IT

a. Employee (within the scope of employment and under a duty to deliver)

i. Official duty: found on the job

ii. Under a duty to deliver: finding was in the scope of employment or there is a contractual obligation (government worker or mentioned in K)

b. Independent Contractor

i. No duty to deliver

6. NEW YORK STATUTE

a. New York Personal Property Law Article 7-B Lost and Found Property

i. [Definitions]

1. “Property” means money, instruments payable drawn or issued to bearer or to cash, goods, chattels, and tangible personal property other than (a) “instruments” (b) animals (c) ship wrecks (d) logs (e) cars

2. “Instrument” means a check, draft, promissory note, bond, stock certificate, or other paper document, other than those payable, drawn or issued to bearer or to cash and other than money, evidencing, representing or embodying a chose in action or a right with respect to property or a share, participation or other interest in property or in an enterprise.

3. “Lost Property” includes “lost or mislaid” [ELIMINATED THE DISTINCTION], abandoned property, treasure troves, other property found that is assumed to be lost unless it is established in an action or proceeding commenced within six months after the date of finding that the property is not lost property

4. “Owner” is the person entitled to possession of the lost property as against the finder and against any other person who made a claim

5. “Transportation facility” a railroad car or coach, street surface railroad car, subway car, motor bus, motor coach, taxicab, aircraft or steamship, or any other vehicle used for carriage of persons whether or not such use is in the course of a business of transporting persons.

a. “Transportation Company” the person carrying on a business of operating a transportation facility. A taxi driver is a “transportation company” with respect to a taxicab, which he owns and operates as a car.

ii. [Found property and found instruments to be deposited with police; penalty for failure to deliver; delivery to persons in possession of premises where found]

1. Any person who finds lost property of the value of $20+ or comes into possession of property with the value of $20+ with knowledge that it is lost property or found property SHALL within ten days after finding or coming into possession either return it to the owner OR report it and deposit the property in a police station of the city where they found it

a. BUT if the finding was on premises under the control of the commissioner of general services return to à capital buildings police

b. If the finding was outside a city return to à station or substation of the state police (sheriff’s office, of the county, town or village) of the state police where the finding occurred

c. If the finding was on a state park, parkway, recreational facility or historic site etc., (under the jurisdiction of parks and recreation) return to à station of the regional state park police

2. A person who finds an instrument within ten days after it was found either return it to a person entitled to it or report the finding and deposit the instrument to a police station (as if the instrument were lost property having a value of $10+)

3. Any person who shall refuse or willfully neglect to comply will be guilty of a misdemeanor and will be punished with a fine of no more that $100 OR imprisonment not exceeding six month or both.

4. A person won’t be subject to criminal prosecution for failure to report a finding if he delivers the property or instrument to the person in possession of the premises where the property or instrument was found.

a. A person who delivers the found property to the person in possession of the premises where the item was found, is not liable to the owner or person entitled for such delivery IF he had no reason to believe that such person in possession of the premises would not comply with 1 or 2

iii. [§ 253 Duties of Police]

1

the state comptroller as unclaimed property.

d. Any property or instrument determined to be valueless at such sale goes to the comptroller as unclaimed property.

4. If the finder finds property or an instrument while he is on a transportation facility while is being operated they are subject to eh provisions of the article if he leaves the transportation facility at any place in NY taking with him the thing he found

vii. [§ 257 Title to lost property]

1. The title to lost property which has been deposited with the police shall vest in the finder when the property is delivered to him (§ 254) and shall vest in the buyer when the property is sold (§§ 253 & 254)

2. If the finder of lost property under the value of ten dollars has made a reasonable effort to find the owner and restore it to him, and has been unable to do so, the title to such property shall vest in the finder at the end of one year

viii. [§ 258 Proceeds to be paid into fund]

1. Proceeds from the sale of lost property shall be paid to the treasury of the county city town or village in the police department of which the property was deposited.

III. BAILMENTS: rightful possession [relinquishment of possession and assumption of dominion over the property] of goods or personal property by one who is not the owner

1. Bailment:

a. Abandonment by bailer to bailee

b. Possession of the goods

2. Liability as a bailee:

a. Liability can arise under strict liability

i. If bailee willfully refuses to return

ii. If bailee willfully departs from bailment agreement

iii. If bailee gives the chattel to the wrong person

b. More often, liability will arise out of negligence

i. Many claims arise because property gets stole when leant on bailment – bailee will be liable if it was stolen and they were negligent

c. Liability will also be dependent on benefit

i. Mutual benefit (renting a car from Hertz) a bailee has to exercise the ordinary degree of care

ii. If it is for the sole benefit of the bailer, then the bailee will be liable if they were grossly negligent

iii. Sole benefit of the bailee, the bailee will be liable for slight negligence

3. Limitations on Liability

a. Receptacles

i. When someone bails anything that can act as a receptacle, in absence of some identification of the contents, the bailee is only liable for what could reasonably expect to find within the receptacle.

ii. If you can be held liable for whatever is within the receptacle then you are at the bailer’s mercy and they could make a fraudulent claim.

iii. You are never excused from liability because you are mistaken about the value of the item in the receptacle – only if you can’t reasonable know what exactly is inside it.

b. Contractual Limitations

i. Bailee can excuse himself of liability through an agreement but it must be clear and unambiguous and contain the words “from negligence”

4. Burden of Proof

a. The burden of proof will be on the defendant (bailee) to prove that they used due care

i. The facts and circumstances of the bailment can invoke an inference of negligence