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Property I
University of Denver School of Law
Marsh, Lucy A.

Professor Marsh – Property – Spring 2013

Personal Property:

1. Benjamin v. Lindner Aviation, Inc. (35-36) [Lost & Found Property]

– Property is deemed lost when the owner unintentionally and involuntarily parts with it through neglect or inadvertence and does not know where it is.”

– Lost AND Mislaid Property: Right to Possession: Owner of locus in quo; Right of Ownership: Original Owner.

– Property is considered mislaid when the owner voluntarily puts it in a particular place, intending to retain ownership, but then fails to reclaim it or forgets where it is.

– Treasure trove consists of gold, silver, currency, or the like intentionally concealed by an unknown owner for safekeeping in a secret location in the distant past. Treasure trove “…carries with it the thought of antiquity.”

2. Columbus-America Discovery Group v. Atlantic Mutual Ins. Co. (35) [Abandoned Property]

– Property is abandoned when the owner intentionally and voluntarily relinquishes all right, title, and interest in it.

– Abandoned Property: Right to Possession AND Right of Ownership: in the Finder

– Court held that owners of “up to $1 billion in gold” sunk in an 1857 shipwreck did not abandon their rights by merely failing to recover the gold.”

3. Allen v. Hyatt Regency-Nashville Hotel (78) [Bailment]

– A bailment is the rightful possession of chattels by someone other than owner.

– Car owner who utilized an indoor commercial parking garage that was patrolled regularly by security personnel, constituted bailment. This was true even though the owner retained his keys and chose his own parking space.

4. Kam-Amaz v. US

· To prove an implied-in-fact K, P must prove 1) mutual intent; 2) consideration; 3) unambiguous offer and acceptance; and 4) actual authority on the part of the government’s representative to bind the government in K.

· A bailment is a type of K whereby “an owner, while retaining title, delivers personalty to another for some particular purpose… the relationship includes a return of the goods to the owner or a subsequent disposition in accordance with his instructions.”

· The purely unilateral act of seizing a person’s personal property does NOT evidence intent to enter into a bailment contract.

· The police power encompasses a customs official to seize and retain property if he has reasonable cause to believe that any law or regulation pertaining to border protection or immigration has been violated.

· There was no bailment, but the laptop was unilaterally seized lawfully due to the customs agent’s reasonable belief.

5. Alley v. Giannini

· Under Illinois law, a constructive bailment, or bailment implied in law, may be found where the property of one person is voluntarily received by another for some purpose other than that of obtaining ownership.

· The holder is bound to take care of the property, not for the sake of a benefit to himself or upon any expectation of compensation for his services, but solely for the convenience and accommodation of the owner.

· To recover under a bailment theory, P must allege 1) express or implied agreement to create a bailment; 2) deliverance of the property to the bailee in good condition; 3) bailee’s acceptance of the property; and 4) bailee’s failure to return the property OR returning the property in a damaged condition. à burden of proof shifts to the DEFENDANT (presumption of D’s negligence).

· Court is willing to award sanctions for D’s initial non-compliance, but only for the actual costs incurred as a result of the non-compliance.

6. Newman v. Bost (49, 53) [Gifts]

– Constructive delivery occurs when the donor physically transfers to the donee the means of obtaining access to and control of the property, most commonly by handing over a key.

– The owner effected constructive delivery of a bureau and other household furniture by handing the donee the keys that unlocked these items.

– A gift causa mortis may be defined as a gift of personal property in anticipation of the donor’s imminently approaching death. Unlike a gift inter vivos, a gift causa mortis is revocable. The donor may revoke such a gift at any time before his death. If the donor does not die from the anticipated peril, the gift is automatically revoked as a matter of law in most states. A valid gift causa mortis requires all three gift inter vivos (intent, delivery, and acceptance) plus a fourth element: the donor’s expectation of imminent death. Gift causa mortis can be viewed as an emergency substitute to a will.

– Former manager of an opera house, on deathbed and stricken with paralysis, made gift causa mortis to housekeeper.

Easements, Covenants, & Equitable Servitudes:

7. Sakansky v. Wein

· Marsh notes: a judge will apply the rule of reason to how high the easement is, but NOT to where the easement is.

· Because there was no K concerning the P and D’s easement, the owner of the dominant estate is not limited in his use to such vehicles only known at the time the way was created; the owner of the dominant estate may use the way for any vehicle which his reasonable needs may require in the development of his estate (different forms and heights of transportation may change over time).

· Here, the D wanted to erect a building OVER the land subject to the P’s easement, but allow an opening of eight feet for the P’s easement. P sued for an injunction and won.

8. Schwartz v. Murphy

· Here, the P has to trim the hedge at his own expense, because he has the benefit of the view easement.

· If the description of the easement is inaccurate because there are TWO (or more) descriptions in the deed, the general description in the text of the deed must yield to the more specific description in the survey map that the deed refers to.

· Using the survey map is an example of the court using any relevant extrinsic evidence for the purposes of clarifying ambiguities resulting from unclear language in the deed.

9. Shrull v. Rapasardi

· When you give your neighbor permission to use your land as an easement, and they do it, then you can’t revoke that permission. Permission can turn into an easement (after an appreciable time).

· As long as the owner of the dominant estate does not inconvenience the owner of the servient estate and the use of the easement is not expanded, the owner of the dominant estate can use a reasonable amount of land on either side of the easement for maintenance purposes.

· Marsh notes: It’s reasonable to dynamite the easement every 3 years.

10. El Di v. Town of Bethany Beach (588)

– The most commonly asserted defense to enforcement of a promise, as an equitable servitude is changed conditions. The doctrine applies when conditions in the neighborhood have so changed that the intended benefits of the restriction cannot be obtained to a substantial degree. In other words, when there has been a major change in conditions since the creation of the restriction that its continuation “would be of no substantial benefit to the dominant estate,” the restriction is unenforceable.

– Restriction on sale of alcohol imposed in 1900 by a religious organization that planned to develop a 120-acre parcel as a church-affiliated residential community. By the 1980s, the area had become the commercial center of a busy tourist resort, and the defendant began selling alcohol. The Delaware Supreme Court refused to enforce the restriction—given these changed conditions—it no longer benefited other property owners.

11. Mountain Park Homeowner’s Ass’n v. Tydings (Rafay)

· Property owners have a right in equity to enforce restrictive covenants. Equitable defenses that are available to preclude enforcement of a covenant are: merger, release, unclean hands, acquiescence, abandonment, laches, estoppel, and changed neighborhood conditions.

· Defense of abandonment requires evidence that prior violations by other residents have eroded so the general plan as to make enforcement useless and inequitable. Violations must be material to the overall purpose of the covenant, and minor violations are insufficient to find abandonment. Evidence of a single violation is insufficient to show abandonment.

· A court must construe restrictive covenants by discernin

n (539, 549)

– Commercial easements in gross are freely transferable

– If an assignee decides to assign his rights further, he “must assign his whole interest to one, two, or more; but then if there be two or more, they could make no division of it, but work together with one stock.” (the right of a grantee may be assigned, but if to more than one person, the two parties must work together)

Possibilities of Reverter:

20. Green Tree v. Williams

· A fee simple determinable is a grant that can be cut short when a given term expires.

· A possibility of reverter is an interest which remains in the grantor after he has given away a fee simple determinable.

· When the specific event happens, the land will automatically revert back to whoever then owns the possibility of reverter.

21. VanZandt v. Chan

· An action to recover real property from a person in adverse possession under title or color of title shall be commenced within three years after the cause of action accrues, and not afterward.

· This case saw no legislative intent to dichotomize between title and color of title.

· The possibility of reverter is not seen as a property right that should be given favored treatment depending on title or color of title.

Rights of Entry:

22. Union Colony v. Gallie

· A fee simple subject to a condition subsequent is the interest created in the grantee when the grantor retains a right of re-entry.

· With a right of re-entry, the grantor has to DO something to get the land back; it will not vest back automatically.

· Any attempt to convey a right of re-entry will destroy it, and the grantee will have a fee simple absolute instead of just a fee simple subsequent to condition subsequent


23. City of Klamath Falls v. Bell (198, 201)

– “No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.”

– Any interest that violates the Rule is null and void when created, and thus is judicially stricken from the instrument.

– A possibility of reverter cannot be gifted over and is thus retained in the grantor.

– 6 RAP elements:

o No interest

o Is good

o Unless it must vest

o If at all

o Not later than 21 years after some life in being

o At the creation of the interest.

– 1. Do we have an interest to which RAP applies?

– 2. Determine when the “creation of the interest” occurred.

– 3. Determine who qualifies as a “life in being”

– 4. Determine:

o a. when would 21 years after the last life in being be AND

o b. whether it is at all possible it might take more than that time for the interest to vest or become impossible of vesting?

– 5. Determine what becomes of the future interest that is not “good” under the common law RAP

24. Buell v. Holland & Hart

· If the option is determined NOT to create an enforceable interest in a specific parcel of land, then no specific property is “fettered” and hence, RAP does not apply.

· An attorney owes a duty to his client to anticipate reasonably foreseeable risks in carrying out services for his client.

25. Whiting Oil v. Atlantic Richard

· We might have not read it?