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

Property
Kurtz
Fall 2011
Chapter one: Acquisition of Property Rights
1.      Capture
1)      Ownership of wild animal
Rule of law: mere pursuit of wild animal does not establish title to it. Property right on wild animal is only acquired through physical possession. The first one to catch and kill the animal is the owner.
a.       Case: Pierson v. Post, the fox belonged to the actual catcher. (Note 15 p.18)
b.      Released or escaped wild animals define as lost, unless tamed to have the habit of returning to the captor.  Note 14. 
c.       Custom: the whale case, who get the marked lance on the whale possesses.
d.      Trespassing: between PP, that the trespasser cannot get possession; both trespasser, the prior actual possessor.
2)      Ownership of the baseball
Rule of law: even there in an environmental consequences interrupt the capture, the owner is still the first capturer. “Who catches the ball catches the ball.”
·         Case Popov v. Hayashi The court reasoned poorly by splitting the ball.
2.      Find
1)      Policy goal
a.       Encourage and facilitate the return of property to the true owner
b.      Set up an environment to encourage finder not just keep the property but not telling the land owner.  Reward a finer for his honesty if the property remains unclaimed.
2)      The elements in deciding the right of the found property
a.       The presumed intent of the original owner (category of common law)
b.       The identity of the adversarial claimants
c.       The location of the found property   public place- the finder/private land-landowner
3)      The common law rule
a.       The category of found property
·         Lost (finder): the owner unintentionally and involuntarily part with the property and don’t know where it is.
·         Mislaid (owner of locus in quo): the owner intentionally put the property in a certain place but fails to reclaim or forget where it is.
·         Abandon (finder): owner voluntarily relinquish all right, title and interest in the property.
·         Trover (finder): gold, coin, currency conceal by an unknown owner intentionally for a length of time that the owner is probably dead or undiscoverable.
b.      Finder v. owner of locus in quo
·         Lost or mislaid. – priority rule in deciding 
–          The original owner place the property in the land for certain purpose like protection
–          The true owner will remember where it is
·         the finder doesn’t have good title to the windfall if he is a trespasser
–           Favorite v, Miller
·         guess cannot against landowner
·         The land owner presumptively own whatever attaches to or under the land.
·         General open to public or not open to public. Lost in the public goes to finder, mislaid goes to L. 
–          e.g. true owner lost wallet in the counter, L is in better position to let the wallet goes back to TO. If lost on the floor, as lost goes to finder.
c.       Finder v. true owner
The true owner retains title to the found property except for abandon property.
d.      Finder v. third person
·         The finder has a good title to the found property against all except (1) the true owner (2) sometimes the owner of locus in quo.  Case : chimney sweeps against the jewel
·         One who wrongfully coms into possession whether by finding, bailment, or by mere tort, has a right to retain that possession as against a mere wrongdoer who is a stranger to the property. 
e.       Finder v. employer:
·         Old case: employee finders must surrender the find to employer if he has a contractual duty to report finds.
·         Employee can possesses according to the circumstances, find in the hotel room / lobby…
p.68
4)      The statute
a.       If true owner does not claim property within twelve months, the right to the property vests in the finder.
b.      The statues abrogate the common law rule distinctions the types of found property.  But many courts still refuse to apply lost property statute to property that would not be considered lost under the common law.
Case Benjamin v. Lindner Aviation, Inc, the court decided for the owner upon common law rule instead of statute.
3.      Creation
1)      Imitation: incentive to create v. protection of monetary benefit
2)      Body
a.       Embryo: goes to the one who doesn’t want. Better have K beforehand. Davis v. Davis.  
b.      Body parts: according to Moore. Cant own the spleen in the limited sense of having the right to profit from it.
·         When body part leaves the main body, should be deem as property (teeth, hair)
c.       Surrogate mother: CA-pro surrogate, NJ-pro natural.
d.      Man giving sperm before die is typically for men going to army or with deadly disease.
·         In the common law, the child has to be born during the marriage. No law to provide these children for social security services.
·         Is sperm bequeathed property subject to the will? Yes according to the Davis case, sperm is property. 
4.      Gift
1)      Requirement
a.       Intent
i.            Whether to transfer title or possession.
b.      Deliver
i.                    Actual:
·         Through agent of donor: no deliver
·         Through trustee(creation of a valid oral trust): deliver
ii.                  Symbolic: impossible or impractical/ symbol of possession
iii.                Constructive: possible but impractical/ means of obtaining possession
·         Keys is not a constructive delivery for land, deeds require
c.       Acceptance: deliver trigger the presumption of a completed gift, unless reject by donee
2)      Types of gift
a.       Inter vivos: e.g. Gruen v. Gruen The successive or future interest in the painting here is that the father gave all the rights of ownership but held back only one right-possession. The remainder is a presently existing property right.
i.                    Marriage ring
ii.                  Organ donation
·         The common law doe

kind. D did not make any investigation to determine the status of Wertz-call the Tel of Wertz
Holding2: pre-code estoppel does not bar recovery
Rule of law: Equitable estoppel
Precludes plaintiff (Porter) from denying or asserting a material fact by which “by his words or conduct . . . intentionally or through culpable negligence, he has induced another who was excusably ignorant of the true facts and who had a right to rely upon such words or conduct, to believe and act upon them. . .” See page 167 for full quote
–       Porter’s conduct is not blameworthy
–       D is not a bona fide purchasers P.168
–       Policy
b.      Obligation of the bailor to disclose the value of the property.
Peet v. Roth Hotel
–          Basic Facts: Peet owned a ring. Peet wants Holtz to repair ring. Peet hands ring to Ms. Edwards, hotel clerk, who puts ring in envelope with Holtz name on it. Envelope and ring stolen. Peet sues hotel to recover value of ring
–          D claim no bailment K exist
–          Holding for bailor: the court is wrong in deciding for the P, who has the lowest cost to disclose the value of ring protecting it from being stolen. ? The bailee can figure out whether he should buy a safe deposit box to prevent bigger loss. When it is hard to distinct the price of the goods, it requires ordinary care as other goods.
2)      Involuntary bailment: The general rules governing bailment are implied in the law in the absence of an agreement to the contrary.
a.       Bailor may recover from a third party who has already paid the bailor. (finder)
b.      Rationale: bailor has no opportunity to select his bailee and thus ought to be bound by whatever settlement or judgment the bailee obtained.
3)      Bailment v. license
a.       Bailment: If you bail your car at a parking lot and it did not return because of misdelivery or negligent, they are liable.
b.      License: When you put it as an arrangement not bailment, like license, the operator is only liable when they are negligent.
Ellish v. Airport Parking Company of America, Inc.
–          Basic Facts:
·         Plaintiff parks her car in lot operated by defendant at Kennedy Airport
·         When she returns from her trip, the car is gone
·         When she parked her car, she received:
•          A ticket from a vending machine labeled “license to park”
•          A warning that car should be locked
•          A disclaimer of liability