Real Property with Professor Wilson Spring 2013
Possession and Ownership
1. Types of Property
a. Property is a legal construct embodying competing rights and expectations.
b. Everything is property (related) but all rights are relative.
c. Property is influenced by history, culture, government, philosophy, costs, and all matter of social concerns.
2. “Bundle of Sticks”: various rights that usually include the exclusive right of possessing, enjoying, and disposing of a thing (Possession=Control)
a. Right to possess
b. Right to use and enjoy
c. Right to transfer or dispose
d. Right to exclude
3. 3 Main Categories
a. Real Property – Land and attachments
b. Personal Property – Movable objects
c. Intellectual Property – Protectable creations
4. Types of Intellectual Property
a. Patents – Inventions
b. Copyrights – Expression
c. Trademarks – Identifications of Good and Services
d. Unfair Competition
5. Popular Private Property Theories
a. Labor Theory – work in acquiring and maintaining property establishes rights
b. Contract Theory – an implied contract exist between individuals and society
c. Occupancy Theory – occupying or possessing property establishes rights
d. Natural Law Theory – the laws of nature dictate that private individuals have rights in certain property
e. Social Justice Theory – societal order depends on the recognition of certain individual property rights
f. Economic Theory – private rights arise from external costs factors seeking to maximize societal efficiency
6. Personal Property: Consists of a bundle of rights/expectations
a. Dispose
b. Use
c. Possess
d. Exclude
e. Damage
7. Judicial remedies for protection of property
a. Actions to recover land in specie (recover the land itself)
i. Early England: Wide range of “real” actions but did not provide a full set of judicial remedies.
ii. 16th century: Ejectment arose causing “real” remedies to fade
8. Actions to recover monetary damages for injury to land or goods
a. Trespass
b. Trespass on the case: remedy for indirect or consequential injury to land or chattel
c. Trover: remedy where defendant had converted P's chattel to his own use
9. Actions to recover goods in specie
a. Replevin:
i. action used when rightful owner of property cannot directly repossess their property
ii. does not provide compensation for any property/value lost, only provides property itself
b. Detinue:
i. action for the wrongful detention of goods
ii. allows for recovery of good or damages for the value of the good if it superior ownership is proven
10. Development in the United States
a. Ejectment: Available from an early date
b. Replevin: broadened to be used to recover chattels in specie in any case where the defendant was wrongfully holding them.
c. Where Chattels were damaged and not converted, trespass and case available to provide a damage remedy.
11. Remedies originating in the Chancery (equity) courts
a. Property Rights based on Possession
b. Types of Possession
i. Actual: physical exercise of dominion and control over the subject matter (thing/res)
ii. Constructive: circumstances legally recognized as an acceptable substitute for actual acts.
1. Denotes possession that has the same effect in law as actual possession, although it is not actual possession in fact.
2. Possession sometimes equals ownership and sometimes it does not.
a. The key is usually the type of property.
12. Popov v. Hayashi
a. Barry Bond's record-setting home run baseball was caught by Fan A,
b. who then lost control of the ball when he was rushed by a crowd of people.
c. Fan B picked up the ball and left the stadium with it.
d. Lawsuit by A, the judge ruled that the ball was abandoned by Bonds and belong to the first person to possess it.
e. A, who had caught the ball, had just about gotten complete control of it,
f. when the crowd interfered, so he had prepossessory interest (resulting from the fact that the actions of the crowd kept him from perfecting his possession).
g. B, who had picked up the ball thereafter, did nothing wrong,
h. but nevertheless took the ball subject to A's interest.
i. The judge decided it would be unfair to award the ball solely to A or B.
j. A might never have managed to get complete control,
k. but if he had, then B would not have been able to pick up the loose ball.
l. Ball was intentionally abandoned when hit by MLB.
m. Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the failure to continue the effort is interrupted by the unlawful acts of others, the actor has a pre-possessory interest in the property. That pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion.
n. An award of the ball to P would be unfair to D. It would be premised on the assumption that P would have caught the ball. That assumption is not supported by the facts. An award of the ball to D would unfairly penalize P. It would be based on the assumption that P would have dropped the ball. That conclusion is also unsupported by the facts. Each man has a claim of equal dignity as to the other. Both plaintiff and defendant have an equal and undivided interest in the ball. P’s cause of action for conversion is sustained only as to his equal and undivided interest. In order to effectuate this ruling, the ball must be sold and the proceeds divided equally between the parties.
13. Good view of possession, who came into it first?
a. Possession is left ambiguous for a reason.
i. Must exercise dominion and control over ball.
ii. Gray’s rule Central tenant the actor must maintain possession of the ball even after incidental contact.
b. What is the property classified as?
i. In this case only, both have a superior claim, so split the ball, equitable division through sale.
14. Holmes view of Possession
a. a relation of manifested power in relation to the object in question, and
b. an intent to exclude others from interfering with the object
15. Conversion: the wrongful exercise of dominion and control over property.
a. No title or possession of the item of dispute
b. Active v. Constructive control.
c. The baseball was abandoned.
16. Black letter rule:
a. Possession requires:
i. A relation of manifested power (in relation to the object in question) and
ii. An intent to exclude others (from interfering with the object)
b. One who obtains possession of an “abandoned” thing – such as the basebal
i. I.e. watch on the sidewalk.
7. Finder v. Landowner
a. Finders generally gain right to what they find but, ownership is subject of dispute to the right of the owner of the land on which it was found.
b. Rationale Soli: possession of the land carries with the possession of everything on the land.
c. Mislaid objects belong to whoever owns the property they were mislaid on.
8. Benjamin v. Lindner Aviation, Inc
a. Benjamin found money in the wing of the airplane. Screws were rusted, but money was neatly organized and dated about 30 years ago. Benjamin put some in his car, and then attempted to split with his boss. Boss decided to go through statutory procedure.
b. Owner of the airplane itself is the owner of the money.
9. Mislaid property:
a. is voluntarily put in a certain place by the owner who then overlooks or forgets where the property is.
b. Finder aquires no rights to the property.
c. The rights of possession of mislaid property belongs to the owner of the premises upon which the property is found, as against all persons other than the true owner.
i. Example: A briefcase on a desk
d. Finder Entitled to Possession except against the true owner.
e. Lost: the one who reduces it to possession becomes its finder.
f. Possession is physical control coupled with an intention to assume dominion over the object.
10. Exceptions:
a. Trespasser: A trespasser-finder will not be allowed to secure possessory rights in the lost property. Right of possession will fall to the owner.
b. Employer-Employee: An employee who finds an article in the course of his employment should surrender the right of possession to his employer.
i. The employer has the right to direct the employee in his activities. If the employee found the article by virtue of an act specifically directed by the employer, the employer should acquire the rights of possession in the article.
11. Abandoned Property:
a. Property is abandoned when the owner no longer wants to possess it.
b. Abandonment is shown by proof that the owner intends to abandon the property and has voluntarily relinquished all right, title and interest in the property.
c. Abandoned property belongs to the finder of the property against all others, including the former owner.
d. In re seizure (money in gas tank): if the finder is working under an agent, the agent has the right to ownership, therefore goes to the owner of the car, not the gov’t
e. First person to exercise dominion and control is the owner.
f. It is necessary to show an intent to give up both title and possession
g. Distinguished from lost/mislaid
i. A chattel is not abandoned merely because the owner has parted with its possession. If the owner involuntarily parts with possession of goods, they should be categorized as either lost of mislaid.
