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Property I
University of Iowa School of Law
Matsumoto, Barry D.

Property I – Matsumoto – Fall 2012

Acquisition of Property Rights


1)      Situation: First hunter initiates chase of wild animal but doesn’t gain possession of the animal. Second hunter intervenes in the chase and gains physical possession of the animal. The hunt occurs on neutral territory.
a)      Issue: Whether the first hunter acquired a property right in the wild animal even though he didn’t gain physical possession?
b)      Rule: Generally, wild animals belong to the person who first gains physical possession of the animal. But there is an exception to the general rule known as the Barbeyrac exception. Under this rule, a hunter can establish a property right in a wild animal by:
i)        Manifesting an intent to acquire the animal, (notice requirement)
(1)   Hunting an animal openly is enough to satisfy this element
(2)   Hiding in a deer blind would not be enough, because a blind is intended specifically to conceal, so another hunter cannot be expected to have seen it
ii)      Depriving the animal of its natural liberty, (work requirement)
(1)   Keeping the animal in pursuit is enough to satisfy this element, because the animal is not free to enjoy its liberty as it wished while it was being actively chased
(2)   Merely watching an animal from a distance with a loaded gun is not a sufficient deprivation of the animal’s liberty
iii)    Exercising certain control over the animal. (‘but for’ causal test)
(1)   Ask, would the hunter have certainly captured the animal had not the second hunter intervened?
(2)   Examples include securing the animal with nets, traps, or toils
(3)   Pierson v. Post – Where P, a first hunter, was pursuing a wild fox on unpossessed land, but had not yet captured the fox, and D, a second hunter, intervened and obtained possession of the fox, P has no claim against D because P had not exercised certain control over the animal.
2)      Situation: First person intends to possess property but his efforts to gain control of the object are frustrated by the unlawful acts of others. A second person, who was not acting unlawfully, gains physical possession.
a)      Issue: Whether the first person has a right to possession in the property that entitles him to a conversion claim against the second person?
b)      Rule: A person can sue for conversion of personal property if he either has possession of the property or has the right to possess the property. The person “possesses” property if he has physical control over the property and intent to physically control the property. The “right to possession” is implied by law if the following conditions are met for Pre-Possessory Interest:
i)        The actor undertakes significant steps to achieve possession of the property, (work requirement)
ii)      The actor’s effort is interrupted by the unlawful acts of others, (‘but for’ causal test)
(1)   Ask, would the person have possessed the property if not for the unlawful acts of others?
iii)    The actor doesn’t achieve physical possession of the property.


1)      Situation: Finder found property on the land of an Owner of Locus in Quo.
a)      Issue: Whether the Finder or OLIQ has higher title in the found property?
b)      Rule: The prior possessor always has the highest title. But then a dispute between a Finder and the OLIQ is resolved in different ways depending on the classification of the found property. Whether found property is treasure trove, abandoned, lost, or mislaid is a question of fact.
i)        Treasure trove: The property is gold, silver, or currency; AND the property is hidden; AND the prior possessor is probably dead or undiscoverable (Benjamin v. Lindner – money found in airplane was not treasure trove because it didn’t meet the antiquity requirement. The plane’s ownership history was well-documented, plus the currency was dated from approximately 40 years ago)
Abandoned: In all likelihood, the prior possessor intended to relinquish ownership of the found property (Benjamin v. Lindner – money found in airplane was not abandoned because it is illogical and nonsensical that any person would intentionally relinquish ownership of $18,000.)
(1)   Finder has higher title if:
(a)    Finder was not trespassing on OLIQ’s premises,
(b)   The found property was not embedded in OLIQ’s premises
(i)     Ask whether Finder had to disrupt OLIQ’s premises in order to recover the property
(c)    The LIQ is generally open to the public.
(2)   OLIQ has higher title if:
(a)    Finder was trespassing on OLIQ’s premises,
(b)   The found property was embedded in OLIQ’s premises,
(i)     Ask whether Finder had to disrupt OLIQ’s premises in order to recover the property
(c)    The LIQ is not generally open to the public.
ii)      Lost: The prior possessor did not intend to part with the property at all (Benjamin v. Lindner – money found in airplane was not lost because the bills were carefully tied and wrapped, then placed in a position that could only be accessed by removing a panel on the wing. These facts indica

For example, a person would not hand over all of their bank account information and safety deposit box information not in contemplation of death.)
(2)   To be transferred presently;
ii)      The gift must be delivered to the donee (Some courts have the narrow view that if actual delivery is possible, actual delivery is necessary. Other courts have a broad view that even where actual delivery is possible, symbolic or constructive delivery is still acceptable. Delivery doesn’t necessarily require that the donor physically hand the object to the donee, it just requires that the donor relinquish her own control of the property. For example, if donor gives one of her safety deposit box keys to donee, but retains the other key, then she hasn’t relinquished control and there was no delivery. Also, if the donor gives the donee a check for money, the gift is not complete until the check is cashed/deposited, because the check can be cancelled by the donor until the time of deposit. The delivery requirement serves to confirm the donor’s intent, so when the donor’s intent is especially clear, the courts will lean more toward accepting symbolic or constructive delivery. If the intent is not as clear, the courts are more likely to require actual physical delivery.)
(1)   Actually, (third party delivery: if the donor gives the gift to a third party for delivery to the donee, the delivery occurs at the moment the gift was given to the third party if the third party is an agent for the donee. If the third party is an agent for the donor, delivery has not yet occurred.)
(2)   Symbolically (the donor delivers some object intended to represent the gift),  (Gruen v. Gruen – a letter from a father to his son that the father was gifting the son a painting, but the father would retain physical possession of the painting for the rest of his life, was a symbolic delivery, because the interest being transferred to the son was the ownership interest, not the possessory interest. The ownership interest was symbolized by title: the letter.)