Property
Prof. Freyfogle (Spring 2014)
I. Laws of Capture/First in Time
A) Acquiring Rights in Animals
1) Rule of Capture (requires actual occupancy)
2) Alternative: mortal wounding + imminent prospect of capture
a) Capture is practically certain + subjective intent
3) Alternative: Trapping
a) Escape pretty improbable + intent not to abandon
i) If returns to where has possibility of getting away à retain property right IF have taken reasonable precautions to prevent escape
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4) Custom provides some variation (whaling)
5) Notice (would 3rd party have known it was owned?)
a) Escape into natural habitat à lose property right (no notice)
i) What if let loose within large fenced area (ex: game or ecotourism ranches)?
· Check notes in casebook
6) MUST be in compliance w/ game laws (ex: licensing, in-season, bag limits)
a) If not à don’t become lawful owner
7) Protection during pursuit
a) Generally, interference by lawful economic activity/competition OK
i) Wrongful conduct: Intent to drive away (not to capture)/malice
b) Hunter harassment statutes (no malice required)
8) If hunter is trespassing à don’t become lawful owner
a) Presumption that lands are open unless landowner takes steps to keep people away
i) May be able to retrieve if not posted
b) Hunter may have causes of action (same as in personal property):
i) Trespass: get item back but damaged or use disrupted
ii) Conversion
iii) Replevin: physically recover property
B) Finding Law
1) Abandoned
a) Intentional relinquishment of property right
i) Not possible to abandon real property
b) After abandonment à unowned
c) Finder acquires full ownership rights
i) Can leave property in place and return for it later (Haslem manure case)?
· If property taken into possession, but have not value = rights last only as long as in possession
· If add value, even if not in possession = rights last for reasonable period of time to go away and pick up
d) *Note: key distinction between abandoned and lost/mislaid = intent
i) Ex: $ left in hotel dresser drawer is abandoned
2) Lost: property unintentionally put where it is
a) No intent to relinquish rights
b) Finder gains ownership rights superior to everyone EXCEPT true owner
i) Finder becomes bailee
c) *Note: key distinction between mislaid and lost = likelihood of true owner coming back for it
3) Mislaid: intentionally put where it is, but walked away and forgotten about it
a) Finder acquires no ownership rights
i) Finder becomes bailee
ii) If found on private property à may be required to turn over to owner of premises (facilitating return to TO)
· 2nd bailment
4) Embedded in soil(treasure trove): item concealed in ground or house
a) Finder acquires ownership rights relative to everyone except TO
b) If no treasure trove statute à finder does not gain ownership rights – landowner does
5) Role of Statutes Today
a) Have to turn over to police (police try to return to true owner)
i) Removes distinction between lost and mislaid)
ii) May remove distinction of embedded in soil as well
b) After time goes by, if police return to you – acquire full ownership rights
i) Way to end property rights of true owner
· Incentive to follow statute
6) *EXAM*Note: identify true owner/priority of ownership at each stage
a) Q1 – was property abandoned?
b) Q2 – was it lost/mislaid/embedded in soil?
c) Always raise possibility of statutes
C) Bailment Law
1) Knowing possession of personal property by anyone other than TO
a) Absolute duty to return to bailor
i) Strict liability for misdelivery by bailee
b) Absolute duty of bailee only to use an item for authorized purpose
i) Strict liability for any damage to property if used outside of scope of bailment
· Scope: manner/types of uses, time period
ii) If within scope à satisfied level of care owed?
2) Trad’l level of care owed by the bailee to the bailor
Type of Bailment
Level of Care
Sole benefit of bailor
Minimal: not grossly negligent
Mutual benefit
Reasonable care
Sole benefit of bailee
Extraordinary care (liable for any negligence)
Now: more of a sliding scale → reasonable given all the circumstances
· Circumstances include:
– Who benefits, and
– Whether bailment was intentional
D) Surface Water in Western States à Prior Appropriation
1) Physically divert water from source + apply water to beneficial use + permit (today)
old Test: substitute damages for typical injunction when
– Good faith & non-negligent
– Slight damage to LO & slight benefit of removal
– No limitation on LO’s future use
– Huge disparity in hardship (value of land vs. cost to end it)
– Impractical to move structure
· *NOT a balancing test – always weighs heavily in favor of injunction
6) Right to exclude once open land up to public (casino case)
a) Generally can arbitrarily exclude particular people
i) Subject to restriction (ex: race, religion, etc.)
B) Private Nuisance: protect use and enjoyment of land (noise, light, vibration, gases, other slow/indirect physical invasion)
1) Brought by owner OR possessor
2) Substantial Harm
a) Interruption of P’s use and enjoyment
i) What activities/things done on land before nuisance began?
ii) ↓ in value = evidence (not sufficient alone)
b) Harm must make life uncomfortable/be physically offensive to the senses
i) Aesthetics alone are NOT enough
c) No protection for sensitive landowners
3) Intentional (or negligent)
a) Continuing harms à intent to continue (usually when notify of imposition of harm)
b) If one-time accidental case à must show negligent
4) Imposition of the harm must be unreasonable under the circumstances
a) Unreasonable for landowner to have to put up w/ invasion
i) NOT that D acted unreasonably
b) Consider:
i) Priority in time
ii) Compliance w/ land-use regulations?
5) Balance of equities
a) Shift toward unwillingness to automatically issue injunction
b) CLEAR imbalance in P’s favor?
i) Relative value of uses
ii) Suitability to neighborhood
iii) Compliance w/ land-use regulations
iv) First-in-time (“coming to the nuisance”?)
v) Steps to mitigate
c) Some jurisdictions require this to show if there is a nuisance, others use as in trespass (to determine what the appropriate remedy is)
