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

Action of Replevin:
you have right of possession
someone interfered with your right
there was no authorization to interfere
Action in Trover
right of possession
interference
no authorization
I. Acquiring Rights in Wild Animals
Four requirements to acquire rights on wild animals:
Intention
: that you intend to appropriate the animal for your individual use.
e.g.’s includes: pursuit, caging, partial capture/enclosure, and mortal wounding
Occupancy/Possession
e.g.’s include: capture (so escape is impossible) or mortal wounding. [pursuit or partial capture is not enough] Two requirements of occupancy/possession:
certainty
Intent – does pursuer intend to appropriate animal for own use? (E.g. A hunter.)
Identity – is the identity of the animal distinguishable? (that’s the one I shot!)
Likelihood of Capture – how likely is capture? Will you capture it?
policy
: to preserve peace and order so no floods of litigation: (need objective evidence)
exceptions:
capture
mortal wounding
caging
pursuit
partial enclosure
custom
: case by case basis, may give occupancy when requirements not fulfilled: may be intent: intent: intent and occupancy/possession: intent: intent and occupancy/possession
comply with statutory restriction
: (licenses, hunting season, endangered species. etc.)
à


ratione sole doctrine
: Owner of land has exclusive right to hunt on his land.
à
à
General Rule: We want to promote the exploitation of Natural Resources.
Loss of Rights in Wild Animals
A party loses rights of possession in the animal if
at any time an animal regains it’s natural liberty, unless animus revertendi
animus revertendi
: if an animal has a tendency to return, you don’t lose right
natural liberty
Wild Animals v. Domestic Animals
-Domestic animals are considered property of the owner, thus an owner’s rights in domestic animals is indefeasible
-Rights in wild animals are defeasible (may be acquired and lost)
-Domestic v. Wild depends on circumstances (custom, area, etc…)
Notice
-If a 3rd party has notice that an animal is already owned by another, then they cant get rights by capturing it.
(a) seeing a brand (must be reasonably big enough to be seen during labor)
(b) obviously not in natural habitat (elephant in city, parrot in backyard of LI)
(c) animal is caged
Acquiring Rights in Natural Resources
Oil case- On West you own everything below your land
Water cases
Reasonable Use Doctrine- Can capture but reasonable Use








II. Acquiring Rights to Personal Property
Types of dispossessed property
:
Lost property
Mislaid property
forgets about it, or (b) inadvertently fails to retake it
: Owner intentionally/voluntarily puts the object down and intends to get it back but either: (Owner does not relinquish rights.): Owner casually/involuntarily/unintentionally parts with possession of his property. (Owner does not relinquish rights.)
(3) Abandoned property: owner intentionally relinquishes ALL title to the property (intention to relinquish all rights)
-Abandonment of property is NEVER PRESUMED
-For abandonment, you need direct affirmative proof to infer that it was abandoned.
-If there is ANY doubt at all, it is NOT considered abandoned
(4) NY RULE: 7-B; no more mislaid property, only Lost or Abandoned
Rights of Finders
General Rule:
à
The finder does not have the right to
Destroy the property.
To the fruits of the property.
To destroy the fruits of the property.
The finder may alienate the property if
It does not interfere with the rights of the true owner.
The transferee receives only the finder’s rights.
Possible Claimants
True owner
Finder
-Rights subject to rights of true owner should he appear
-Rights to use. No right to destroy or injure
-Can only transfer the rights that he had, not true ownership
Fee owner
fee owne

becomes a quasi-bailee of the mislaid property subject to the true owner. Quasi-bailee has a duty to take care, safeguard and safe-keep property that is lost on private property. Fee owner has constructive possession of all articles on his land.: first person to take physical custody of the property and intends to be treated as the sole owner: always has superior rights. Rights persist when property is lost or mislaid. Can also get back from replevin. ::Rights in personal property are not defeasible. The finder of personal property has rights tantamount to ownership against the entire world except the true owner; whose rights are exclusive and perpetual.: concepts of wild animals apply here (parrot in US considered domestic):
free from artificial restraint
returned to natural habitat from which it came (everyone is deemed to know natural habitat)
: In most areas land must be posted or the trespassing hunter may take game.U.S., wild animals are owned by the state in public trust, owner only has right to hunt and does not acquire rights in the animal until he takes possession of the animal.)C/L will recognize local customs of use, except when land is posted. When trade reliance relies on a custom (i.e. the whale case): bring the animal within your control, you deprive the animal of it’s natural liberty (Not concrete; defined on a case to case basis) A “forced sale” à when you want the FMV, usually when property in unrecoverable (e.g. property destroyed). You must prove:: when you want the property returned you must prove: