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Property I
University of Iowa School of Law
Gallanis, Thomas P.



Fall 2011

A. Personal Property

1) Wild Animals

A) Pierson v. Post: Pierson had no right to fox by mere pursuit, instead a mortal wounding by one who doesn’t abandoned his pursuit is required for possession

1) The wounding derives the beast of its natural liberty

B) State of Ohio v. Shaw: (Ds removed fish from nets) To acquire a property right in wild animals, the pursuer must bring them into his power and control, and so maintain his control as to show that he does not intend to abandon them again to the world at large.

1) The nets allow for the possibility of escape but the fishing industry operates in this way

C) Ghen v. Rich: (Whale case) in an action in libel to recover the value of the property

1) Trover and Conversion: Claim in which the P gets the full value of the property has a reward

(a) Trespass: P is awarded damages for the action

(b) Trover: P gets the value of the property back

2) The local custom of bomb lancing and beached discoverer sending word was sufficient to establish that the whale was possession of the whaler

3) If a usage is found to generally prevail in a business, it will not be open to the objection that it is likely to disturb the general understanding of mankind by the interposition of an arbitrary exception.

D) E.A. Stephens and Co. v. Albers: (silver fox held in capture, escapes, and killed by rancher) The common law rule didn’t apply that said when a wild animal regains its natural liberty it is no longer the property of the owner unless it intends to return

1) instead the court held that a person who comes across an animal not native to the region should know the animal has an owner

2) Classifying Property as Real or Personal

A) Real: land and the improvements attached to the land

B) Personal: all other property other than real property

1) The distinction is important in order to know what type of action to bring

C) Haslem v. Lockwood: (manure on highway)

1) Manure becomes real property when dropped

2) Not real property in this case because it was no longer on farm land

(a) Rule: A person must have a reasonable amount of time to remove his property before another can convert it to his own use.

3) Like in the Ghen case, it can be seen that the court is trying to award the party that puts in the effort-a societal benefit

4) Haslem put in work to increase the value of the property

D) State of North Dakota v. Dickinson Cheese Co. Inc: As sovereign, the State has the power to determine when and under what conditions fish running wild may be taken and thus reduced to ownership, but it does not have sufficient property interest to support a civil action for damages against one who has polluted the stream causing harm to the fish.

E) Goddard v. Winchell: (meteorite fell on Goddard’s land)

1) Action for replevin: the return of the item

(a) Rule: An object affixed to the soil is a part of the soil and no one may take such object without the consent of the property owner

(i) No prior ownership is key here-different if piece of a space shuttle

(ii) Sequence of events does not matter-so it wouldn’t have mattered if erosion caused meteorite to go above aground

3) Acquiring Abandoned Property

A) What constitutes abandonment

1) Intentional and voluntary relinquishment of title

2) Time aspect: No effort to recover

(a) Many courts hold that the passage of time alone does not constitute abandonment

B) Title to abandoned property is acquired by the finder who demonstrates occupancy

1) Occupancy: taking possession of the property and exercising dominion control over it

C) Eads v. Brazelton: (shipwreck case) The occupation or possession of property lost, abandoned or without and owner must depend upon an actual taking of the property with the intent to reduce it to possession

1) The P’s efforts were not enough to constitute to possession (would have had to attempt to remove the ship, marking the trees only indicated an intent)

4) Finders’ Rights

A) Categories of found Property

1) Abandoned Property: Property is abandoned when the owner intentionally and voluntarily relinquishes all right, title, and interest in it.

2) Lost 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

3) Mislaid Property: 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.

4) Treasure Trove: Personal property that is not lost or mislaid because the owner put it there for safekeeping

(a) Money, gold or silver

(b) An antiquity, having been hidden long enough ago to indicate that the owner is dead or prevented from reclaiming it

5) Do we have a finder?

(a) In Armory and Clark yes

(b) Not in Eads because the buoys don’t count

6) Does the law of finders apply?

(a) Deals with property that was previously owned

(b) Doesn’t apply to Pierson or Goddard because there was never a previous owner

7) Rights against third parties in general?

(a) Armory v. Delamire: P found ring and D (goldsmith) wouldn’t give it back

(i) Trover: Damages for the value of what was taken

(ii) Finders’ rights states that the finder of the property does not acquire an absolute property or ownership, yet he has such property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover

(iii) Relativity of title: relative to the owner the P has lesser rights and relative to a third party, the P has stronger rights

(b) Clark v. Maloney: (P found and tied up logs but D ended up with them)

(i) The finder of a chattel, though he does not acquire an absolute property in it, yet has such a property, as will enable him to keep it against all but the rightful owner

8) Rights against the original owner?

(a) As a general rule, an owner retains title to lost or mislaid property found by another.

(b) Why the owner’s rights trump the finders

(i) The reason behind the policy to protect owners is otherwise owners would have to spend money to protect against theft

(c) Ganter v. Kapiloff: brothers owned stamps that were later found in a dresser

(i) Brought an action of replevin

(ii) Holding: The finder of lost property, while not acquiring an absolute ownership in it, does, nevertheless, hold the property against all but the rightful owner.

9) Rights against the private landowner

(a) Lost objects found either within a house or embedded in the soil are generally awarded to the landowner, not the finder. The status of the finder is sometimes relevant here. A long-term tenant who finds an object will often prevail over the landowner, while a finder who is merely the landowner’s employee will not.

(b) Hannah v. Peel: P found brooch in D’s house while a tenant and the court sided with the finder and not the landowner

10) Findings in public spaces

(a) Rule says that possession (not absolute possession) goes to the owner of shops/restaurants/stores because that is where the owner will go to look for the lost property

(b) To provide an incentive for the finder to turn over possession of the property, it would be a better policy to all the finder to keep possession

(i) This rule goes against

matically revoked

(c) Personal property

7) Unauthorized Possession and Bona Fide Purchasers

A) nemo dat quod non habet: no one can give better title than what he has

B) Bona Fide Purchaser: one who pays valuable consideration, has no notice of the outstanding rights of others, and who acts in good faith

1) Doctrine says the original owner wins unless the subsequent owner falls into the category of bona fide purchaser

(a) P has the burden of proof

(b) Policy reason behind the bona fide purchaser:

(i) It promotes the free transferability of property in commerce

(c) Scenarios when bona fide purchasers win

(i) Fraud

(1) A person with voidable title has power to transfer a good title to a good faith purchaser for value when

a. The transferor was deceived of the identity of the purchaser

b. The delivery was in exchange for check that was later dishonored

c. Agreed the transaction was to be a cash sale

d. Delivery was procured through fraud

(ii) Entrustment

(1) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business

i. Helps the economy keep moving otherwise buyers would want to search through a merchant’s records to ensure of good title

(iii) Money and negotiable instruments

(1) If the holder of an instrument does so in good faith and is not aware of any problems with the instrument, he is a bona fide purchaser, and thus can claim payment even if the person from whom he received it did not hold title (aids commerce)

8) Accessions

A) Doctrine of Accession

1) One who in good faith applies labor to another’s property acquires title to the resulting project if this process (1) transforms the original item into a fundamentally different article or (2) greatly increases the value of the item

B) Labor only: can’t recover the value of the labor because you didn’t have permission to perform the labor

1) It would encourage careless behavior (people would go around improving others’ property without permission

2) When labor alone is added in good faith, the original owner will only lose possession when the property is converted into something substantially different and/or the value of the original article is insignificant compared to the value of the new product

C) Labor and Materials

1) If the parts can be removed without damaging the property, detachable parts added to the property are not accessions

9) Fixtures

A) A form of personal property that, while retaining a separate identity, is so connected to the real property that the law considers it a part of the realty

B) Common law 3 part test

1) Annexation

(a) Real or constructive annexation of the article in question to the realty

2) Adaptation

(a) Appropriation or adaptation to the use or purpose of that part of the realty with which it is connected