Property I Outline

PROPERTY OUTLINE
 
Categories to Consider in Changing Common Law Rules (ie statute, regulation):
1) Fact – change and modify precedent
2) Law – law changes (ie regulations for landlord / tenant relationship)
3) Policy – policy changes to recognize difficulties (ie agrarian rental vs. urban residential leases)
 
DEFINING PROPERTY: PRIVATE OWNERSHIP OF NATURAL RESOURCES THROUGH POSSESSION
 
Two Types of Property:  
1)      Real – fixed dirt (ie mobile home can be fixed to become real property)
2)      Personal – moveable (ie car, clothes, laptop)
 
PERSONAL PROPERTY POSSESSION = bedrock of property; obtain title by mere fact of possessing article (possession is word of art; legal conclusion)
 
Personal Property Categories:
1)      Unappropriated Property (ie wild animals) – 1st possessor has superior right; impediments to 1st possession rights are government regulations (ie wildlife protection laws) or landowner rights
2)     Abandoned Property – 1st possession rights to abandoned property
3)      Lost – objects clearly not intentionally deposited by owner – usually awarded to the finder
4)      Mislaid – intentionally put in a certain place and then forgotten by its owner – finder does not obtain right of possession because mislaid objects held to have been placed in “custody” of landowner
5)      Treasure Trove – valuables intentionally buried beneath surface and never reclaimed by owner – courts decline to establish separate category for these objects (two theories are to say it is “mislaid” or that the found property belongs to landowner’s custodianship)
 
Unappropriated Property = no one owns or claims it; can secure superior rights to property by taking possession
 
First Possession Policy = first person to take possession of unappropriated property is given superior rights unless there is a public policy that warrants different results (ie game/wildlife protection laws for endangered animals prevents killing of animals even if on own land; custom and usage)
Public Policy of First Possession – first possession encourages economic development (ie whale industry – Ghen) and the maintenance of order and avoiding breaches of the peace (ie fight over the fox – Pierson)
 
To “Take Possession” Elements:
1)      Intent to Exclude Others
2)     Take Custody / Control
 
a) Rights to Wild Animals (unappropriated personal property):
                What Constitutes Possession:
                                1)   Chasing – mere pursuit of animal is NOT sufficient to constitute possession
·         Pierson case – fox is property of person who intercepted and killed him – small enough to carry away immediately
 
                                2)   Trapping or Mortally Wounding – one who mortally wounds an animal so that capture is almost certain has
                                       possession
·         catching of animal in trap is sufficient
 
                                3)   Custom and Usage – court may look to customs and usage prevailing in activity or trade
·         Custom and Usage – policy of industry can modify first possessor requirements in order to allow
                                        industry to flourish
·         Ghen case – custom showed control because whale too big to take immediate control – in order to maintain investment in industry, custom of marked harpoons had to be developed to constitute
                                                possession / control
 
Return to Natural State – if wild animal is captured and then escapes to return to natural state, courts generally hold that the finders ownership ceases; animal becomes property of whoever recaptures him
                                “Fast Fish” vs. “Loose Fish” – fast fish under control belongs to party fast to it; while loose fish (abandoned or
                                 being pursued) is fair game for anybody who can capture it the quickest
 
 
                Hypo: Pursue deer with license on land allowed to hunt on; you shoot deer and think you get it and pursue on foot;
you find deer and another person is slitting deer’s throat for own capture – if you have no evidence to show that you mortally wounded the deer, then person who slit throat has superior rights because he took possession of deer by showing intent (slitting throat) and by showing control (slitting throat).
 
Hypo: A hits deer and looses sight, but follows blood stains; A finds deer with B slitting throat and B has no gun – A shows control and custody by mortally wounding animal and pursuing it – A has superior right over B because A took first possession; to obtain first possession A must show intention to exclude others (hot pursuit of deer; not 6 or 7 hrs later) and takes control and custody of deer because he inflicted mortal wound to deer; B has no custody because A caused the mortal wound; B slitting the throat was gratuitous
 
Hypo: A trespassing on X property; A sees and hits deer and chases after it; A comes across B who also fired at deer and got to deer first and is slitting throat – game warden takes deer and A and B go to jail because violated government regulation (public policy) that you can’t hunt without license; hunting regulated by Game and Fish Commission
 
Hypo: Landowner finds A and B fighting over deer on his property – A and B liable for trespass and landowner gets to claim deer; landowner gets deer as private chattel of land
 
b) Abandonment of Personal Property
                Abandonment – act of deserting property without hope of recovery or intention of returning to it – must be voluntary act
                which must be proved by clear and convincing evidence indicating purpose and intent to repudiate ownership
·         first possessor rights to abandoned property
 
Proof Needed to Show Abandonment:      
 1)  Original Owner Intent to Abandon     and     
 2)   Non-Use of Property
 
                Traditional Theories
1)      Maritime Law of Salvage – original owners retain ownership interests, but salvors entitled to liberal award –
property assumed to be taken out of owners possession and control by forces of nature (property in peril)
o       Right to Compensation – salvor only has a right to compensation, not to title unless owner does not claim property – if the owner does not come forward to claim property, the salvor awarded entire value
o       Policy – favored over law of finds – prevents competitive and secret conduct because main goal is to
                                        preserve property and prevents breaches of the peace
                                2)   Common Law of Finds (“finders keepers”) – if you find the abandoned shipwreck, you can keep it as long as it
                                        is abandoned – must be abandoned
·         Disfavored – required finder to demonstrate 1) intent to acquire property and 2) possession and control of property – encourages secret behavior and hiding of recoveries to avoid claims of owner
·         Inference of Abandonment – arises from lapse of time and nonuse of property or express disclaimer of ownership (inference cannot be made if previous owner appears and asserts ownership)
 
c) Rights to Person:
                Property Over Human Beings – law of situs governs; state law governs (ie no right to bring slaves into state that forbids
                slavery – slavery cannot exist except by force of positive (local) law; law from another state does not convert slaves to
property in a state that outlaw slaves)
 
                Ownership of Human Body – courts split as to whether human has right to sell human tissue and organs – for the most part,
                person is not permitted to sell organs or tissues
 
                                a) Organ Transplants – law is clear that a person may NOT sell organs for transplants by federal statute under
                                      commerce (ie not legal to sell kidney to a donee who desperately needs a kidney) – Policy determination
·         Blood – most states allow a person to sell blood to a blood bank
 
                                b) Cell Research (Moore v. Regents of Univ. Cal.) – courts refused to characterize the medical use of cells as conversion of property – court held that once cells/organs removed from body, patient did not retain ownership interest in them
·         Courts reluctant to apply ordinary rules of property to frozen sperm, ova, and pre-embryos
·         Courts reluctant to recognize a “saleable” property interest in body after death; “gifts” of body parts