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Property I
University of Illinois School of Law
Hamilton, Daniel W.

Property – SPRING 2011
·         Open book, open internet.
·         Everything will be in the exam.
·         Case names
·         Arguing over a proposition….for and against argument.
·         Do not just state the law!
·         You must make arguments, counter-arguments….
·         Claim is made and the cases are evidence, and draw similar facts….
·         NO FACTS are RANDOM!
·         Everything is a close call…….!!!!!!!!! You MUST wrestle with the facts….
·         Use HEADINGS…..
·         MAKE sure you get to everything.
I         Property and its Sources
First Possession: Wild Animals
Pierson v. Post, Popov v. Hayashi and notes, (152-160)
·         Property: This is a legally protected interest that is defined and maintained by the state.
o   All property rights are defined by the state, but there are some limits on the govt’s power.
o   Property is a series of things. Property interests can be divided up into different elements. Generally it includes:
§  The right to exclude.
§  The right to sell or alienate.
§  The right to lend or give it away (before or after death).
§  The right to use it.
§  The right to occupy.
o   A Property right is, above all else, a right to exclude.
·         Rights of Possession come from the govt who transfers it to others.
1.    In Johnston v M’intosh, the govt transferred property to others and even ignored prior possessory claims on the property.
2.    Pierson v Post illustrates the property in wild animals.
3.    Popov v Hayashi illustrates a multiple finders of abandoned property.
·         RULES:
1.    Actual possession of a contested resource creates a presumption of a right to posses which may only be rebutted by a superior claim of possession.
2.    First-in-time Rule: The 1st person to take possession of an unowned thing owns it.
3.    A prior possessor prevails over a subsequent possessor.
·         POLICY reasons:
o   Rewarding labor
o   Protecting investment
o   Encouraging people to bargain with each other rather than fight
·         Two area where the RULES above are tested are “wild animals” and “finders”
o   Wild Animals:
§  For a person to possess a wild animal, he must capture or make capture virtually certain, rather than pursue the animal.
§  Mortally wounding OR trapping the animal to the point where capture is virtually certain is viewed by the law as creating a possessory interest in the wild animal = the animal is viewed as captured.
·         Being in the PROCESS of wounding or trapping the animal is NOT ENOUGH, it must be virtually certain that capture is going to occur.
·         Trapping does not mean that the animal cannot escape, it just means that the captor uses REASONABLE MEANS to confine the animal.
·         A Competitor who wants to capture an animal can interfere with the process of capturing but a NON competitor cannot.
§  CUSTOM: This could also be used to decide who has property rights in a wild animal. This is especially true in hunting soceitys.
§  Policy reasons for the rules on wild animals:
·         Fosters competition:
o   This will result in more wild animals being captured.
o   Unfair competition: Even though society wants to foster competition, it does NOT want to create a situation of unfair competition which prevents others from entering the pursuit.
·         Rule Certainty
o   The rule is easy to administer because it creates a bright line.
o   Rewarding capture is an easier rule to administer than rewarding the prospect of capture.
o   The rule of capture promotes certainty in a situation where the stakes are not high and not worth a lot of judicial resources in resolving the conflict.
WILD ANIMALS CASE – Pierson v Post:
·         RULE: Actual possession of a contested resource creates a presumption of a right to posses which may only be rebutted by a superior claim of possession.
·         FACTS:
1.    Post was pursuing a fox with his hounds, and Pierson jumped in and took the spoils. Pierson knew Post was hunting, and the trial court found for Post.
2.    Post’s arguments:
§  He has a claim of a right on the fox because he expended his time and resources to pursue the animal. His mere pursuit gave him a right.
§  Pursuit = labor. The act of work gives a legally protected interest.
§  Post brought suit based on trespass on the case, which was a tort.
3.    Who owns the fox?
§  There is a difference between owning the actual fox, and owning a property interest in the fox.
4.    Majority case opinion (Tompkins):
§  Tompkins does NOT use any case law because he cannot find any contemporary case law. He does however use Roman law and medieval law.
1.    Justinian approach: Pursuit and wounding is NOT enough to create a property interest.
2.    Puffendorf approach: Pursuit and deprivation of liberty is enough to create a property interest. Deprivation of liberty = mortal wounding or trapping of the animal.
§  Policy arguments:
1.    The court also uses the policy goal of killing wild and dangerous animals, which the court wants to promote. It rewards the better hunter and benefits society.
2.    The court also wants to focus on reducing unnecessary litigation. The court reasons that the rule creates a bright line.
3.    The majority concedes that the rule is unfair because it is “uncourteous and unkind.”
·         Dissent (Brockholst):
1.    Proposed rule: Property rights attach the moment the actor has a “reasonable prospect.”
2.    This argument focuses on rewarding labor as opposed to certainty.
3.    Those who put in labor should be rewarded. This view is focused on fairness as opposed to certainty in the law.
4.    Policy Arguments:
§  No one will hunt foxes if they know that they won’t be rewarded for their efforts.
§  It will promote violence because it focuses only on possession. People will get into arguments more often because all we care about is who walks away with the fox.
1.    Counter argument is that the bright line will actually reduce fights over possession and thus result in less violence.
·         Question: Does the mere fact that a person is pursuing a wild animal grant that person a right of possession to the animal?
1.    The mere fact that a person is pursuing a wild animal does not grant that person a right to the animal.
2.     In order to obtain title to a ferae naturae (wild animal) a person must take it. The “first to kill and capture” is the superior rule of law. Had Post mortally wounded the animal, it would have been sufficient to show possession since this would have deprived the animal of its natural liberty. However, the plaintiff was only able to show pursuit and therefore acquired no property interest in the animal.
·         Conclusion:
1.    What is the justification for property rights and when do they attach?
·         RULE:
1.    An actor who undertakes significant but incomplete steps to achieve possession of abandoned personal property and that effort is interrupted by the unlawful acts of others, has a pre-possessory interest in the abandoned property.
2.    This pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion.
·         FACTS:
1.    Popov (P) and Hayashi (D) brought baseball gloves hoping that they would catch Bonds’ record setting home run baseball.
2.    A cameraman captured the event on videotape.
3.    Just as Popov caught the ball he was overwhelmed by a mob engaged in violent and illegal behavior.
4.    Popov was buried face under several layers of people.
5.    He intended to establish and maintain possession of the ball but at some point it left his glove.
6.    Hayashi was standing near Popov and was involuntarily forced to the ground.
7.    While on the ground Hayashi saw the loose ball and took it but committed no wrongful act.
8.    The plaintiff brought suit for conversion, trespass to chattel, injunctive relief and constructive trust.
·         Hayashi’s arguments:
1.    He claims that he has possession because he has COMPLETE control of the ball.
·         Popov’s arguments:
1.    He argues that he has right to possession because he deprived the ball of its personal liberty. He changed the trajectory of the ball, and he was trying to acquire it.
·         Court’s reasoning:
1.    The court focuses on fundamental fairness.
§  Popov has a pre-possessory right.
§  Hayashi has a possessory right.
§  The court ordered them to split it equally.
2.    Conversion is the wrongful exercise of dominion over the personal property of another. There must be actual interference with the plaintiff’s dominion. Wrongful withholding of property can constitute actual interference even where the defendant lawfully acquired the property.
3.    If a person entitled to possession of personal property demands its return, the unjustified refusal to give the property back is conversion. The act constituting conversion must be intentionally done. There is no requirement however that the defendant know that the property belongs to another, and the defendant need not inten

This is favored by the law.
§  Labor – How much labor is necessary to get title? And will the person expending the labor stop once they gain title.
4.    Problem:
§  Joe and Jill. Joe sues Jill because after he cleans a mound of snow from a parking space in their neighborhood and marks it with lawn chairs and cinder blocks. Every night he comes back, Jill is in his space. Happened at least 6 times, recognized custom that you do not park in others’ marked space. Jill doesn’t follow custom. Decide who should win and reference cases.
Acquisition by Find:
·         Definitions:
1.    A possessor is one who exercises ACTUAL physical control over a property with the intent to exercise dominion over it.
2.    An owner is one who has title to the property.
§  Title refers to all the property rights associated with the land or personal-property.
3.    Lost property is property that the owner accidentally and casually lost.
4.    Mislaid property is property that the owner intentionally left somewhere but then it was forgotten.
·         RULES:
1.    An owner of property does NOT lose his property right even if the property is lost or mislaid.
2.    A finder has rights that are SUPERIOR to everyone except the true owner.
3.    A prior possessor of property has rights over a subsequent one.
§  This applies to both personal and real property
§  This rule applies even if the prior possessor is thief.
·         Policy:
1.    Owner always wins over the possessor because of the rule that “ a prior possessor has more rights that a subsequent one.” Prior possession by the owner allows him to win.
2.    Entrusting goods to others is an activity that is common practice and this rule prevents parties from wrongfully refusing to return property.
3.    Because prior possessors expect to prevail, that law reinforces the belief that it is just.
4.    These rules help to maintain social order and avoid disruptions.
5.    Protecting the finder over all others does two things:
§  It rewards honesty
§  It rewards the labor expended by the finder in “re-acquiring” the item.
·         Lost vs. Mislaid Property:
1.    This usually applies to objects found in a public place, or land that is held out as open to the public.
§  A finder keeps lost property
§  An owner keeps mislaid property
2.    The owner gets to keep mislaid property so as to facilitate the return of the property to the true owner.
·         Abandoned Property:
1.    This is property that the owner has VOLUNTARILY and INTENTIONALLY relinquished with the intent to give up both title and possession.
2.    This is always awarded to the finder.
3.    Multiple finders of abandoned property:
§  In this case, the court will award the property to be sold and the proceeds to be split between the “owners.” = this the equitable division rule.
§  See Popov v Hayashi, above.
·         Constructive possession:
1.    This is a legal fiction which treats a person as if he is in possession of property even though he may be unaware of it, or he is actually not in possession of it.
§  Owners are usually in constructive possession of property that is found on, or under their land.
1.    Exceptions:
o   Lost property
o   Owner who is not in possession of the actual land in which the mislaid property was found.
§  Owners generally prevail over finders who locate property on their land:
1.    If the finder is a trespasser
2.    If the finder is on the premises for a limited purpose.
3.    If the owner’s property is highly private (like his home)
4.    If the objects are found under his soil
o   Except Treasure trove, and objects buried with the dead [Charrier v. Bell]