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

Property Outline
Professor Parella
Spring 2018


“It's just that bird law in this country—it's not governed by reason.” – Charlie Kelly

General Rule: In order to acquire a property interest in a wild animal, you must deprive it of its natural liberty (through mortally wounding, ensnaring, maiming, etc.) and you must have some possessory intent.
Pursuit alone is NOT sufficient to establish ownership. See Pierson v. Post.

Courts will take into account local custom for capture in some cases.
Court rejected the local custom that pursuit establishes possession in Pierson v. Post
Court upheld the local custom in Ghen v. Rich.
Taking immediate possession impossible with black fin whales at that time
Court was concerned about the possible affect of overruling this trade custom on the regional whaling industry

Ownership of a wild animal is a qualified property right. (See Escaped Animals below)


1. Ratione Soli: A landowner has constructive possession of the wild animals on his private property.
Policy rationale behind this is discouraging trespassers
If the fox had been caught on private property rather than unowned land in Pierson v. Post, it would have belonged to the landowner

2. Escaped Animals: Property right in wild animals is a “qualified” property right, meaning that if that wild animal regains its natural liberty, your property interest terminates.
In other words, your ownership of a wild animal is always contingent upon maintaining actual control of it.
To “regain its natural liberty” the animal does not need to return to its natural habitat; it just needs to escape.
Mullett v. Bradley: Sea lion case. The Sea lion escapes from Plaintiff off the coast of NJ but never made it back to its natural habitat in the Pacific (presumably because it couldn’t get through airport security). Sea lion is subsequently caught by 3rd party and sold to Defendant. Plaintiff tries to sue Defendant, arguing that he never lost ownership since the sea lion didn’t make it back to its natural habitat. Court said that was not necessary; as soon as it regained its natural liberty, Plaintiff’s property interest was terminated.
Policy Reason: We want to encourage subsequent capture of wild animals.

Three Exceptions to the qualified property right:
Animus Revertendi: If an animal escapes but has the “intent to return” or is domesticated
Conti v. ASPCA: CHESTER THE PARROT. Court found that the ASPCA had not lost their property interest in Chester because he was domesticated and subject to training and discipline.
Domesticated animals cannot regain their natural liberty
Hot pursuit: if your wild animal escapes and you are in hot pursuit, then you do not lose your property interest
Public Interest: If the animal is worth substantial monetary value, public interest, and where the appropriator is well on notice that the animal has escaped, then you generally would not lose your property interest.

3. Malicious Interference: When someone’s livelihood is based on hunting wild animals, another’s hindrance constitutes malicious interference and is actionable.
Keeble v. Hickeringill: Defendant scares all the ducks away from Plaintiff’s decoy pond so that he can’t hunt them. It doesn’t matter that the Plaintiff was not in possession of the ducks yet since Defendant was maliciously interfering with his livelihood.



Two Important Rules:
1. Prior possessors defeat subsequent possessors
2. The true owner defeats anyone else

The old rule (Armory v. Delamire) was that the finder has title that will win against anyone but the True Owner (TO).

A finder’s does not have absolute title but, as against subsequent possessors (i.e. not the TO) they may have prior possession.  

When statue of limitations is up, title vests; doesn’t matter if TO comes back now.

1. Finders vs. Premises Owners

Generally, in finders cases, you end up with a dispute between (1) the finder and (2) the owner of the premises where the object was found.
The question ends up being who had prior possession: the finder or the premises owner?

Lost vs. Mislaid
Lost: when you involuntarily lose possession of an item
Mislaid: when you voluntarily relinquish possession, impliedly entrusting the item to the possession of the premises owner.
This makes the premises owner a prior possessor to the finder and therefore the owner wins
Determining whether something is lost or mislaid is a question of fact.
Envelope of cash, left of the floor: lost
Envelope of cash, left on a store counter: mislaid

General Rule: The finder only wins if the item was lost in a public place.
1. Lost in Private: Premises owner wins.  He had prior constructive possession by virtue of private ownership of the premises.

2. Mislaid in Private: Premises owner wins.  He had prior constructive possession by virtue of private ownership of the premises AND the TO impliedly entrusted the item to him.

3. Mislaid in Public: Premises owner wins. He has prior possession because the TO impliedly entrusted the item to him.

4. Lost in Public: Finder wins. Premises owner does not have prior possession.

If the item comes onto the property after execution of the lease, then T is the prior possessor because the lease entitles T to exclusive possession.
If the item comes onto the property before execution of the lease, then LL is the prior possessor.

2. Items Found by an Employee

General Rule: If the item is found by an employee in the scope of his employment, then the employee will generally have to yield ownership to his employer.
The item must have been found within the scope of the finder’s employment in order for him to be required to turn it over to his employer.

Does not apply to independent contractors


The public policy considerations behind Article 7-B are
(1) protection of the TO’s interest and
(2) encouraging finders to turn in lost property by making it easier for them gain title.

NB: NY statute gets rid of the distinction between lost and mislaid property
The NY statute puts finders in a better position to recover than common law

Key Points of the Statute:

§ 251 – Definitions:
Property – anything other than instruments

n which the statute of limitations has expired?
If no, then the AP has not ripened into title
If yes, then (1) you can’t bring action for ejectment and (2) their possession may have ripened into title

1. There must be actual possession
Mere assertions of possession are not enough
Courts will require acts of possession
Mowing the lawn/tending to the land (Walling v. Przbylo)
Improvements (West v. Tilly)
2. Possession must be adverse
Possession cannot be with the permission of the owner
3. Possession must be reasonably continuous
It can’t be sporadic but doesn’t require the APor to be physically on the land 24/7
Use should be as continuous as a normal owner
4. Possession must be open & notorious
This gives the TO constructive notice
5. Possession must be exclusive
TO can’t be in actual possession at the same time

Policy Reason: AP very often helps a true owner who has a technical problem with title

Ripen into Title
If all elements of AP are met AND the SOL for Ejectment has passed the APor’s possession has ripened into title.
The APor gets whatever title the person who had the cause of action in ejectment had
Once the APor acquires title, the TO is barred from recovering title and barred from suing for damages

In order to interrupt AP, the TO must do more than just enter and tell the APor to get lost; TO must bring action in ejectment in order to interrupt AP.

AP must be proven by clear and convincing evidence by the putative APor.

One or more APor can “tack” their time on to a predecessor’s time in order to meet the SOL requirement as long as there is some privity between them.
Privity requirement is easily satisfied by APor(1) transferring the land to APor(2) even if it’s just verbal with no payment
Can’t be satisfied if APor(2) swoops onto the property without APor(1)’s knowledge

Neither one need to be on the land for the statutory period in its entirety
APor(1) is there for 8 years then gives possession to APor(2)
APor(2) is there for 2 years
Because of tacking, APor(2)’s possession has now ripened into title

Entry Under Color of Title:

Color of Title: This refers to a claim based on a written instrument (like a deed) which is, for some reason, invalid or defective.

When you enter into land under color of title, and you are in AP of part of the described property, you will be deemed to be in constructive adverse possession of the entire property described in your instrument.