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Property I
University of Iowa School of Law
Kurtz, Sheldon F.

Property
Monday, November 01, 2010
6:56 PM

Acquisition of Property Rights
I.            Intro to Property Rights
a.       Property consists of defined and regulated rights of people (or social units) in scarce values; describes what actions can be taken by the owner of property and what the objects are (scarce values) with respect to actions that can be taken (actions and rights are enforced by the state by force)
b.      The observable fact of possession is important in determining who “owns” personal property, as it is nearly impossible to force people to be able to prove title of all possessions
c.       A person can have title without actual possessing property, and to state that a person is entitled to possession does not mean that they necessarily have title
1.       Title is a relative concept – a person may have better title than one person but not another
d.      If a person has the legal right to possess personal property, that person can:
1.       Continue to possess against all except people who have a better right to the property
2.       Recover possession of the property from someone who wrongfully takes it
3.       Recover damages to the property from a wrongdoer
e.      To constitute possession, one must have a certain amount of actual control and an intent to possess the property and exclude others

II.            Rights by Capture
a.       What amounts to occupancy as to acquiring rights by capture (particularly with wild animals?)
b.      Title to wild animals is initially acquired by taking possession of the wild animal.
1.       Mere pursuit of a wild animal does not give a person a right to possession against a capturer. If animal is mortally wounded, or caught in a trap so that its capture is certain, the hunter acquires a right to title that is not defeated by one who intervenes (A wild animal is not possessed until it is deprived of its natural liberty).
2.       Title can be lost if the animal escapes and returns to its natural habitat.
3.       Dissent: If a wild animal is pursued by hounds, and one has a reasonable likelihood of capturing the animal, they acquire a right to such that cannot be defeated by one who intervenes. (Pierson v. Post)
a.       Public policy – Enforce a law that encourages getting rid of foxes.
4.       Fugitive minerals were historically governed by the rule of capture; however, they are now subject to state and federal regulation to ensure the market is not flooded with a high supply.
c.       Analysis/Rationale: If pursuit alone constituted a right to the animal, it would be a huge source of unnecessary litigation.
d.      Case summaries
1.       Pierson v. Post, p. 8: P pursued fox with hunting dogs. D intervened at end of the hunt and shot the fox. Court ruled for D and held that a person in mere pursuit of a wild animal on state owned lands did not have a cause of action against a person who intervened and killed or injured the animal.
2.       Popov v. Hayashi, p. 19: Dispute over Bond’s 73rd HR ball. Popov caught the ball in his webbing but was taken down by “unlawful actors” and did not ever have possession. Hayashi, who did not act unlawfully, picked up the ball. Court held that where an actor undertakes significant but incomplete steps to achieve possession of abandoned personal property and 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.

III.            Rights by Find
a.       A finder is one who rightfully acquires possession of property of another that has been lost, misplaced, abandoned, or hidden so as to constitute treasure trove.
b.      Lost property has been parted with involuntarily or unconsciously.
1.       General rule is that the finder of lost property acquires title against all but the true owner (which could include a prior possessor). 
a.       Policy: reward finders for spending time and effort, helps to preserve and protect the item and helps restore goods with commerce (provides value)
b.      Exceptions:
i.            If person finds lost property on land of another, finder is entitled to the personal property unless the finder is a trespasser (unless trespass is merely trivial). Policy: Wrongdoer should not be able to profit from wrongdoing.
ii.            If person finds in an area of private property that is open to the general public, the finder wins.
iii.            Some courts distinguish between goods under land (owner of locus in quo wins) and goods on top of land (finder wins).
iv.            If person finds property in the case of employment, it typically belongs to the employer. 
2.       The relationship between a finder and true owner is similar to that of bailor-bailee. A finder can be guilty of conversion if he uses the property as his own or if he can reasonably discover the true owner and fails to do so.
a.       Because a finder has a better title than all but the true owner, a finder has good title against a wrongdoer; however, an owner can go after finder, and maybe a third party
3.       Case summaries
a.       Favorite v. Miller, p. 47: D knew piece of statue was on P’s property; went on land with metal detector and found it. Fact that D was trespassing was sufficient to deprive him of his preference of acquiring title against all but true owner.
c.       Mislaid property is personal property that has been intentionally placed somewhere and then unintentionally left there.
1.       General rule is that finder is not entitled to possession as against the owner of the land on which the property was found.
a.       Policy: said to protect true owners so that they can return to the place where the item was left and claim it.
b.      Dissent: The policy takes away the incentive of finders to turn it over to the owner in locus in quo; could just as easily say it goes to the finder so long as the finder notifies the owner of the locus in quo.
2.       Case summaries:
a.       Benjamin v. Lindner Aviation, Inc., P. 52: Benjamin found money in wing of airplane. An IA statute held that lost property went to the finder, so long as certain procedures were followed. Court held the property was mislaid, and ruled that statute did not apply to mislaid property; as such, money belonged to owner of locus in quo (owner of plane). Dissent: property was likely abandoned – not unintentionally left there after being mislaid.
d.      Abandoned property is no longer in the possession of the prior possessor who has intentionally relinquished, given up, or released the property.
1.       Rule is that finder is entitled to ownership as against all others.
a.       Exception: abandoned shipwrecks within territorial waters of state – some hold property belongs to state, others hold it belongs to finder
e.      Treasure trove consists of coin or money concealed in the earth or another private place, with the owner presently unknown.
1.       In England, was escheated to crown. Today, treated as lost property and belongs to finder.
f.        Statutory Provisions
1.       Today, many states (like NY) have enacted statutes to create certainty out of judicial disorder since classification relies on the owner’s intent, and the owner is unknown.
2.       Statutes differ, but they generally eliminate distinction between lost, misplaced and abandoned property and award the found property to the finder. 
a.       Typically (as NY statute) require finder to deposit property with local authority, post a notice attempting to notify true owner, and award ownership to the finder if the true owner does not claim the property after some time.

IV.            Rights by Creation
a.       Many states have adopted a “right of publicity.”
1.       Protects a person against unauthorized use of their likeness or voice (typically for commercial advantage)
2.       Can be in addition to rights provided by statute.
b.      Analysis: Shows that celebrity persona has become property and the new phenomena of courts protecting a person’s name and likeness.
c.       Case summaries:
1.       White v. Samsung, p. 86: White brought common law right of publicity claim when D ran an ad using a robot that was meant to depict and resemble Vanna White.   Court held that D appropriated White’s identity despite not using her name or likeness. Strong dis

, 140: Ds wife left her roommate a note (D in hospital) to transfer gifts to certain people; told him where things were located. D took possession; Ds wife went under and never regained consciousness. Court held there was no delivery of the property; unusual ruling in that it was clearly intent defeating.
c.       Uniform Anatomical Gift Act – originally adopted in 1968; 2006 version now law in 42 states
1.       Under Act, person or family following person’s death may donate his body for research and gift organs for transplantation
a.       Can make direct donation of organ if know recipient in need of such
b.      Can make direct donation to hospital or university for research
2.       At common law, person had no property right in body or remains of himself (remedies in tort law)
a.       Surviving family members had limited right to direct how decedent’s body should be disposed of.
b.      Under National Organ Transplant Act, illegal to sell human organs.
3.       Case summaries:
a.       Colavito v. NY Organ Donor Network, 153: P was specified donee of friend’s kidney. Left kidney was airlifted to him (had aneurysm) and R was given to someone else. Discovered kidney was not a match. Court held since P couldn’t use the kidney, he had no common law or statutory right to such.
b.      Alcor v. Richardson (Wlaw): Decedent k’d to donate head to P. At his death, his relatives had him buried against k. Court held the k between him and P fell within the scope of the UAGA, and the rights of P as donee were superior to the relatives. Ordered mandatory injunction for disinternment.

Powers and Obligations of Possessors

I.            Powers – Estoppel
a.       Statutory Estoppel protects merchants from suits brought by the entrustor/bailor of the goods:
1.       UCC 2-403(2): Entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all the rights of the entrustor (bailor) in the ordinary course of business
a.       1-201(9) defines a “buyer in the ordinary course of business” as “a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind”
b.      If not for the rule, one could not rely on getting good title any time goods were bought from a merchant (facilitates and protects regular purchases)
b.      Equitable estoppel (common law rule) looks at transaction between owner and buyer rather than merchant and buyer.
1.       A rightful owner can be estopped (by his acts or conduct) from asserting title if he invested another (ie bailee) with evidence of title, or the apparent authority to sell it => owner can’t bring claim against an innocent purchaser
c.       Analysis: Based on the premise that often the only proof of title is possession; the owner/bailor wants to protect his title, while the purchaser wants goods to move freely – don’t want good faith purchaser to bear risk of loss.
d.      Case summaries:
1.       Porter v Wertz: P gave painting to bailor (“dealer” of art – not to dispose of it), who allowed 3rd party to sell it to gallery, who found a buyer. P sought to recover from gallery. Court held estoppel didn’t apply – 3rd party was not art dealer (ie merchant) and gallery wasn’t good faith buyer (no honest in fact, or observance of reasonable commercial standard). Equitable – P was not blameworthy