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


Property I

Fall 1999
Professor Di Lorenzo

Prepared by: Daniel B. O’Sullivan
I.                  Typical Property Rights
A.     Possession/Occupancy.
B.     Use.
C.     Fruits and Profits.
D.    Dispose of Property (rights are alienable)
E.     Destruction of Property.
II.               Causes of Action for Property
A.     Trespass
1.      Plaintiff has right of possessions
2.      Defendant has interfered with right
3.      * * * Without authorization.
4.      Plaintiff is entitled to damages.
5.      (Traditionally, no longer required) Had to involve force or violence.
B.     Trespass on the case (a.k.a. Tort)
1.      Plaintiff has any legal right.
2.      Defendant has negligently or intentionally breached duty inspired in him by that right.
3.      Plaintiff has been injured.
4.      (Traditionally) No force or violence required.
C.     Replevin
1.      Plaintiff has right of possession.
2.      Defendant interferes with that right.
3.      * * * Without authorization.
4.      Plaintiff sues to recover actual property.
D.    Trover (Forced Sale, Conversion)
1.      Plaintiff has right of possession.
2.      Defendant has interfered with right “seriously and significantly”
3.      Destroyed
4.      Sold
5.      Damaged, etc.
6.      * * * Without authorization.
7.      Plaintiff is entitled to full value of chattel.
III.           Acquiring Title to Wild Animals
A.     Definition of Wild Animals
1.      General Rule
a)      General Expectations. What is the generally shared public expectation of this type of animal in this situation? (Conti v. ASPCA, Supplement)
b)      Policy
(1)    To ensure rights of proper owner.
(2)    To ensure others have notice of a claim.
B.     Acquiring Title to Wild Animals
1.      General Rule:
a)      Intent
(1)   Requirement:
(a)    Intent to exercise dominion over animal. 
(b)   Intent to appropriate the animal for one’s own use.
(2)   Policy: To ensure rights and obligations of ownership are not bestowed on unwilling party.
b)      Possession:
(1)   Requirement: Deprive the animal of its natural liberty.
(2)   Policy:
(a)    Provides objective evidence of intent.
(b)   Ensures others have notice of claim.
2.      Ratione Soli (Reason of the Soil):
a)      Elements
(1)   Plaintiff owns the land.
(2)   Defendant is trespassing.
(3)   Defendant satisfies General Rule (possession and intent).
(4)   Plaintiff is awarded animal. (Rights default to owner of land).
b)      Policy: Trespassers should not be rewarded.
C.     Loss of Rights
1.      General Rule. 
a)      The rights of the owner are qualified (defeasible)
b)      Rights vanish when animal regains its natural liberty.
(1)   Free from artificial restraints.
(2)   Returned to its natural habitat (some Courts).
c)      Policy
(1)   To ensure others that p is staking a claim.
(2)   Objective evidence of claim is required.
2.      Animus Revertendi
a)      If the animal has animus revertendi (the habit of returning), the rights of ownership are not defeasible. This mostly applies to trained animals.
b)      Policy
(1)   Reward labor of trainers.
(2)    Objective evidence of owner’s claim.
(3)   Burden of proof is large for the owner 
IV.            Lost, Mislaid or Abandoned Property
A.     Definitions
1.      Types of Lost Property
a)      Lost: Owner inadvertently parts with property.
b)      Mislaid: Owner intentionally placed the property where it was found and then inadvertently failed to retake it.
c)      Abandoned: 
(1)   The owner intended to relinquish all property rights. 
(2)   Property is only assumed to be abandoned when and only when the circumstances admit of no other explanation.
2.       Types of Actors
a)      Finder: The person who first takes possession of the article. Finder must have:
(1)   Intention to exercise dominion or control.
(2)   Possession.
b)      Fee Owner: The person who owns the land or property upon which the article was found.
c)      True Owner: The original and rightful owner of the article.
3.      Types of Locations
a)      Types of Places
(1)   Private. A private place is one not open to the general public. (E.g. a house)
(2)   Public. A public place is a place open to the general public. (E.g. the mall, a park, a store.)
b)      Public expectation governs which category any particular place will fall under.
B.     Rights with respect to Found Property
1.      Mislaid property.
a)      General Rule
(1)   Requirements
(a)    Finder must have intention
(b)   possession.
(2)   Policy:
(a)    Intent:
(i)                 Finder/Fee Owner have obligation to maximize the likelihood of return of the article to the true owner
(ii)               And to safeguard the article until it is returned to them. These duties must be undertaken voluntarily.
(iii)             Finder/Fee owner is also to be held liable for any damage to third parties due to the article. This too must be voluntary. 
(b)   Possession: Must be objective evidence of finder/fee owner’s intent.
b)      Private Places
(1)   Rights of actors
(a)    Finder has rights over all but the fee owner and the true owner.
(b)   Fee Owner has rights superior to all but the true owner.
(c)    True Owner has rights against all others in the world.
(2)   Policy Reasons
(a)    Generally held expectation is that you cannot take lost or mislaid property from a private place.
(b)   Maximize the likelihood of returning the article to the true owner.
(c)    In private places fee owner has obligation to return article to the true owner. Because we impose this obligation, the fee owner must be afforded rights. (Constructive Possession)
c)      Public Places
(1)   Rights of actors
(a)    Finder has rights over all but the fee owner and the true owner.

(a)    Finder has rights over all.
(b)   Fee Owner has no rights.
(c)    True Owner has no rights (property is only abandoned when true owner says it is, or when circumstances allow for no other explanation.)
(2)   Policy Reasons
(a)    In a public place, there is no evidence that fee owner had intent to possess or possession.
(b)   Generally held expectation is that you may take abandoned property from a public place (if you find a book in the garbage in the cafeteria).
4.      General Rules
a)      Neither the finder nor the fee owner will ever acquire title under the common law.
b)      Duties imposed by law upon fee owner or finder (quasi bailee):
(1)    Duty to return article
(2)   Duty to safeguard article
(3)   Liability for damages to 3d parties due to the article.
5.      Special Situations
a)      Trespassers
(1)   General Rule: Fee owner always acquires possession from finder and inherits all their rights.
(2)   Policy: Should not reward wrongdoers.
b)      Agents
(1)   General Rule: When an agent finds lost property while in the course of their duties for their principle, they find for their principle.
(2)   Policy:
c)      Treasure Trove
(1)   Definition
(a)    Gold, Silver or Paper money
(b)   Intentionally concealed in Earth, House or other Private Place (safe, hiding place etc.)
(c)    Concealed by unknowable owner
(2)   General Rule
(a)     Fee owner has no rights.
(b)   Agent finds for principle
(c)    At common law, finder gets title.
(3)   Policy/History
(a)    After the Romans conquered England, they had to leave in a hurry. They buried their money (gold and silver) in the belief they would be back to recapture it.
(b)   In England, treasure-trove, once found, would revert to the Crown (King or Queen) so they could remelt it and turn it into more English money. In the U.S., the rights go to the finder, so that they can put it into circulation (weak argument based on capitalism).
C.     NY Law Article 7-B
1.      Definitions
a)      Property: money, instruments payable to bearer or cash, goods, chattels and tangible property.
b)      Instruments: check, draft, promissory note, bond, bill of lading, warehouse receipt, stock certificate or other document not made payable to bearer or cash.
Lost: Lost or mislaid. Abandoned presumed to be lost unless action