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

 
Property 1
Intro to Property – Gallanis – Fall 2015 ( CB = Casebook; Nut = Nutshell )
I. Personal Property A. Wild Animals
1. Spectrum of Possession of Wild Animals
Mere pursuit. Wounded Actual Capture.
a.       Physical possession or essentially guaranteed possession by wounding beyond hope of escape. Present pursuit is not enough. 
(fox chase un-owned land) Pierson v Post
b.       Unlikely escape/Subject to use at captor's pleasure is enough for control/ownership if there are reasonable precautions against escape
(fish in net) Ohio v Shaw
c.        Hunter who does all that is possible to make the animal his own does enough for control
(Whale harpooned and sunk for several days/custom as law) Ghen v Rich
i.         Custom is agreed to for a long time by those affected
ii.       Limited application of custom unlikely to affect general industry or meet objection from such industry or any other
iii.      No usage or custom to the contrary
d. No title may be claimed by finder of animal escaped and recovered from domestication if true owner did everything possible to recover (but was stopped by weather/darkness)
(fox bred for pelt escaped from pen) Stephens and Co v Albers
B. Abandoned Property
1. Effort applied to abandoned property that makes it more valuable creates title in finder and gives finder reasonable time to make arrangements to remove property
(manure piles) Haslem v Lockwood
2. Destroying wild animals in violation of state statute creates no civil remedy, only penalties within statute – no one has a property right in the animals until captured, so no damages
(pollution of river killed millions of fish) N Dakota v Dickinson Cheese Co
3. Objects movable on the surface belong to finder (rule of occupancy) – objects immovable/subsurface belong to the land and owner of land (rule of property)
(meteorite wedged into ground 3 feet) Goddard V Winchell
4. Declaring intention to possess without actual means to possess creates NO ownership
right
(attached buoy to sunken boat, then left) Eads v Brazelton
C.         Finder's Rights
1.       For finder's rights to apply, there must be an original owner – wild animals have no orig. owner
a.       Finder's have ownership superior to all but original owner and may claim trover/replevin
(trover demanded after found jewels were stolen) Armory v Delamirie
b.       Losing property after finding it does not diminish the finder's ownership – must be abandoned to lose ownership right – may sue for trover if found by other after losing it
(found and anchored log, then lost it and found by another) Clark v Maloney
c.        Owner of land upon which found property is stored owns the property
(found log stored on private beach) Barker v Bates
d.       Finder's do not have superior title against original owner
(found stamps) Ganter v Kapiloff
e.       Found property only belongs to land owner if land owned privately, otherwise to finder
(brooch found in home used by military) Hannah v Peel
f.        Marine salvagers typically receive compensation, not ownership
g.       Accidental trespasser/finder has superior title to all but original owner/land
owner
(trespasser chopped down trees and sold them to mill) Anderson v Gouldberg
D.        Bailments
1.       Bailors give property to bailee on temporary basis and have a chose in action if bailee does not give it back on demand
2.       Hotels and steamboats with private cabins for passengers are bailees of passenger's property
(money stolen from cabin on steamboat) Adams v NJ Steamboat Co.
3.       Courts are mixed on whether parking garages create bailment – valet, yes; non-valet,
maybe
Allen v Hyatt & Ellish v Airport Parking
4.       Property stored in hotel safe is bailment but hotel is responsible only if negligent
(ring stolen from front desk of hotel) Peet v Roth Hotel
5.       Bailee may waive some responsibility if Bailor agrees and terms not unconscionable
(lost camera film with liability waiver) Carr v Hoosier Photo Supply
E.         Gifts
1.       Without 1. Delivery, 2. intent to make a gift, and 3. acceptance, there is no gift
(Father never delivered hay or written promise of gift for colts) Irons v Smallpiece
2.       Written letter promising future enjoyment of gift, but reserving life estate, satisfies intent and delivery, acceptance is assumed
(Painting promised in letter upon death) Gruen v Gruen
3.       Gift causa mortis must be personalty not realty, and requires realistic immediate apprehension of death and delivery – revocable, but death seals gift
(gift of ring before heart surgery) Coley v Walker
F.         Bona Fide Purchasers
1.       BFP pays valuable consideration, has no notice of other's rights, acts in good faith, and reasonable person

and notorious means the true owner knows or should know that the property is being adversely possessed/claimed by someone else
2.       Disability (an inability of the true owner to make a claim) due to infancy, coverture, or imprisonment suspends the statute clock until the disability ends, but only if disability begins BEFORE adverse possession – this suspension is called tolling
3.       Tacking occurs when two adverse possessors hold in succession through privity/contract – without privity, the clock starts over from zero.
4.       If clock starts against true owner, then it continues to run against inheritor even if disabled
(inheritance to infant daughter who then married did not toll clock) Fleming v Griswold
5.       Discovery rule means if true owner knows or should know of his cause of action, clock
starts
(presumed stolen art, clock started upon notice, not first adverse possession) O'Keefe v
Snyder
B.       Lateral and Subjacent Support
1.       Lateral support is a duty that comes with land – creates strict liability to adjacent land in its natural state; for damage to buildings by withdrawal of lateral, negligence must be
shown
2.       Subjacent support occurs when surface and subsurface rights have been severed, as in mineral rights – surface owner has right to support of unimproved land, and land
improved as of severance, as well as improvements reasonably foreseeable at time of withdrawal of support
3.       Adjacent landowners must maintain retaining wall if it provides support for adjacent land and is liable for damages to both land and improvements if support fails
(crumbling retaining wall, ripple effect, porch collapse) Noone v Price
4.       Miners owe duty of subjacent support to surface land and improvements existing and reasonably foreseeable at time of last mining operation
(mining explosion caused collapse of home in subdivision) Island Creek Coal v
Rodgers