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

Property – Fall 2010

Ch. 1 – Personal Property

1. Wild animals

· Pierson v Post (NY 1805)

o Pierson intercepted when Post was pursuing the fox. Post claimed that because he pursuing the fox, it was his already. But the court determined that you need MORE than intention, you need to deprive animal of its natural liberty. Pierson deprived the fox of its natural liberty, so he won.

o Unless you deprive animal of its natural liberty, you have not claimed possession.

o Origin of possession: the basic nature of possession is that if you have a wild animal, it becomes owned by someone if they deprive of its natural liberty.

o Pierson won.

· State of ohio v Shaw (Ohio 1902)

o G and H owned nets, they kept them in the water to catch fish…which the nets did.

o Before nets, the fish were ferae naturae.

o G and H (like Post) because they were trying to capture the fish (just intention)

o Shaw came along and pulled a “Pierson” because he took away the fish.

o G and H, original, had made reasonable precautions to prevent escape of the fish/denied them of their natural liberty. THE FISH WERE NOT FERAE NATUREA AFTER G AND H GOT FISH IN THE NETS.

o G and H won.

· Ghen v Rich (Mass 1881)

o Whaling case.

o Ghen and crew shot whale with their special, individual mark. Left it, it sank, it washed up on the shore (that was traditional procedure, followed by ALL people who “whale”. Custom )

o The whale was found on beach by 3rd party, who auctioned it off to Rich.

o Ghen pursued whale, deprived it of its natural liberty à became his property.

§ In whaling, if you kill/injure whale you have deprived it of natural liberty. If you deprive it of natural liberty à you have made it your property.

o Accentuates the difference between capture and deprivation of natural liberty.

o Ghen won.

· E. A. Stephens & Co. v Albers (Colorado 1927)

o Stephens and Co brought the silver fox to their home, domesticated it, it could eat out of their hands. It was tagged on its ear for identification purposes.

o The silver fox escapes from Stephens, gets shot by a farmer. The farmer sold it to Albers.

o Stephens had made an effort and spent time/money bringing this silver fox to a new land, wasn’t native!

o Escape DOES NOT return the silver fox to ferae naturae, also because of animum revertendi (in the habit of returning) – because he was domesticated. He was still the property of Stephens, and you can’t sell what you don’t already own.

o Stephens had expended time and money (like whaling in Ghen!) in making the fox domesticated, ensuring animum revertendi and eliminating all traces of ferae naturae. Because of that, court rules that the fox had been his property.

o Stephens won.

2. Classifying property as personal or real

· Haselm v lockwood (Connecticut1871)

o Haselm saw manure spread everywhere on the highway (owned by the burrough), the manure had been abandoned by original owner (on horses)

o Haselm organized the manure, gathered it into heaps thereby making it more valuable. He left to retrieve means to carry the manure away.

o Lockwood came along and carried off the manure and used it for his own purposes.

o Haselm had expended energy over the manure (ie. Deprived of its natural liberty), changed its form, and made it more valuable, also provided a service to the community. Manure is only effective when you can use it to farm…and you can’t farm a highway.

o Manure wasn’t part of the the land. When Haselm appropriated it to his own use, it became personal property. He had a peaceable and quiet possession. He left manure to get a means of taking it home with him, he only left it for a certain amount of time, that’s NOT abandonment. When Lockwood (asserted that it was real property arrived, manure was still Haselm’s, under his control and in his possession even though he wasn’t there…

o Lockwood claims it was realty and state owns it…but he also says that even if it was personlty, it had been abandoned.

o But court says it was NOT abandoned, Haselm was working in the allotted time he had to get machine to get manure he’d appropriated by himself.

o Haselm won.

· State of North Dakota v Dickinson Cheese (North Dakota 1972)

o Pollution of river by cheese company was what killed the fish in the nearby river. The state wants damages for value of fish killed by this pollution.

o State can’t claim damages because it is sovereign (can determine when and under what conditions fish can be taken…but can’t get damages if they’ve been killed).

o State owns the river but not the fish.

o State may regulate the river and the state is responsible for property (river) for good people, but it’s not an OWNER with independent cause of action, no claim upon fish (wild animals and no possession had been established)

o SO no recovery can be granted in civil actions. State doesn’t have property interest in fish running wild in streams of the state that is sufficient to support action for monetary damages of their unlawful destruction.

o State brought charges for damages against Dickinson, but there was NO case….so it was just dismissed.

o (kind of like Haslem v Lockwood, with the manure NOT being OWNED by state)

· Goddard v Winchell (Iowa 1892)

o Meteorite fell on Goddard’s property and became embedded in his soil. Hoagland came along and dug it up and then sold it to Winchell for around $100.

o Goddard wants to reclaim it, says that it became his property when it was embedded in his soil and that Hoagland didn’t have any title to sell the meteorite, so Winchell also doesn’t have any title to it.

o Goddard wants the meteorite fully returned to him.

o Winchell argues that the meteorite was personal property (like manure)

o Goddard argues that it’s real property because it was embedded in the soil!

o Both courts rule that it’s real property, so meteorite is realty, it was embedded/not moveable!

§ Objects embedded in the soil belong to the owner, not to the finder, even if the object is foreign.

o Real property (unmoveable) can’t be “found”, taken and sold…

o BUT if it had just fallen and been on top of the ground, then it would have been “unowned” and he could have just possessed it.

o Goddard won.

3. Acquiring abandoned property

· Eads (D) v Brazelton (P) (Arkansas 1861)

o In trial court, Brazelton won (they said the boat was his!)

o Eads appeals, they end up agreeing that Eads is the owner because he did MORE than just show intention to capture the wreck (which was what Brazelton was relying on)

o This was a wreck of a steam boat (it was abandoned, released into category of “unowned” objects)…when Brazelton won at first, it was because they considered his actions to count as possession.

o When they reconsidered the case, they saw that it was like Pierson v Post: Brazelton had pursued the boat, but he hadn’t made any act of possession…

o In contrast, Eads went to the lengths required to physically possess and capture and be defined as the OWNER.


o Eads won.

4. Finder’s Rights– prop owned by somebody has now been found by someone else.

· Amory v Delamirie (K.B. 1722)

o Chimney sweep son brought ring to Jeweler, the jeweler’s apprentice stole the jewels out of the ring

o Timing: Armory found lost property and maintains title to it against everyone except for the original owner (who WAS NOT THE JEWELER)…so Armory holds his right to the ring and jewel, apprentice can’t do anything about it

o Armory sued in trover, won damages for value of the ring.

· Clark v Maloney (Delaware 1840)

o Clark found the logs and bound them together.

o The logs floated away, Maloney took them.

o Clark was the original finder, hold rights to the logs against EVERYONE except for the original owner (who is NOT Maloney)

o Clark won for the same reasons that Armory won.

· Ganter v Kapiloff (Md. Special App. 1986)

o Kapiloffs owned the stamps first

o They were lost. Missplaced and were found in a dresser that was bought by Ganter

o Ganter could exercise ownership over the stamps except when Kapiloffs showed up…when they did, his ownership dissolved!

o Kapiloffs didn’t mean to lose the stamps, they did not relinquish ownership of the stamps, so they were still the owners

o Kapiloffs won. They got the stamps back


A Finder of lost property is a person who: (1) takes control of the lost property and (2) has the intent to maintain possession of the property.

· Hannah v Peel (K.B. 1945)

o Peel owns house that the military is using for their soldiers

o Hannah was a soldier and found a brooch in the window.

o Peel never knew about it, it had been left in his house by someone else and lost.

o When Hannah found it, he got Finder’s Rights because it had been lost…and the fact that the brooch was found on Peel’s real property does not mean that it automatically belongs to Peel ONLY because he wasn’t in actual possession of the house….Peel did not reduce the brooch to his possession by actively living in the house.

o So he had NO right to take brooch away Hannah. The brooch belonged to Hannah. He was the first to reduce the brooch to his possession (Like Pierson was the first to reduce the fox to his possession à makes you the OWNER).

o Hannah won and got the value of the brooch.

· McAvoy(p) v Medina (d)

o Pocketbook was mislaid in a barbershop and found by a customer (McAvoy) and turned in to Medina (the barbershop owner). He was supposed to find the original owner, original owner never came back…

o Medina says the pocketbook became his property because it was found on his premises (he is actively owning and posses

Clerk accepted the ring on behalf of the hotel and made the hotel the bailee.

o Hotel is able to see all the facts, so they have burden of proving that they were not negligent.

o bailee is in position of trust. Necessary to businesses to have position of trust. In the interest of commerce. Important for public to trust these institutions with the care of their possessions. People will use their property more in this case

§ There is a mutual benefit in this case à found that they took the ring as part of their regular business services, and they generated goodwill and return customers by performing such services.

o Hotel needed to show ordinary care, and they did NOT.

o There is a bailment, but to show that bailee is liable we need to show that there was negligence..and the burden of proof that there wasn’t negligence is on the Defendant (since he’s in possession of the facts).

o Court found that the hotel was negligence with the relationship that created between a bailor and bailee.

o Peet won because D didn’t show ordinary care.

Different standards of care depending on type of bailment.

Bailment for benefit of: liable for:

1. bailor only (gratuitous) needs to be gross negligence by bailee for him to be liable to bailor

2. both parties needs to be ordinary negligence by bailee for him to be liable to bailor

3. bailee only Only need to have the slightest neglect for the bailee to be liable to the bailor.

· Carr v. Hoosier Photo Supplies, Inc (and Kodak) (Ind. 1982)

o Two transactions: purchase of film and developing of the film.

§ Carr and Kodak (purchase of film)

§ Car and Hoosier (develop of firm)

o D admits bailment and says they were negligent but they argue about the scope of their negligence.

o Cost of film was 13.60, so P was going to get that because D admitted bailment

o P wanted additional $1000, which was the cost of never being able to see those photos.

o Trial court and appellate court agreed on the $1000 but the Supreme Court of Indiana said just $13.60 but not $1000 because Carr agreed to Kodak limiting their liability (on the receipt) and so he can’t be compensated that much…

§ Since Carr had enough knowledge of the type of wording in their receipt to make them less liable and he had that knowledge from being an experienced photographer. If you understand the terms, you accept them. He’s not a “lesser party”. We assume he assented to the terms because he was knowledge of them.

· Hoosier won.

Burden of Proof in Bailments – in a negligence case of misdelivery, the burden of proof is on the bailee (usually the D too) to show that he did not act in a negligent manner. (this can be a stand-in for strict liability) He has to prove this because:

He knows the history of the bailment best.

He has the right to sue thieves and converters of chattel

He’s in the best position to secure the recovery of the chattel.

The risk of damage or misdelivery is best borne by the bailee because it can spread the risk in its charges to its customers

The assignment serves to prevent the bailee from engaging in fraudulent misdeliveries or other acts.

The bailee can deviate from the terms of the bailment as long as the chattel is not lost or damaged.

6. Gifts – noncontractual, gratuitous transfer of property, it’s made without legal consideration. Never subject to a condition precedent. An oral condition on a gift is invalid on the acceptance or completion of the gift.

– Inter vivos gifts – a gift between living persons

* clear and convincing intent in the donor to transfer the object to the donee (donative intent) – donee bears the burden of proof to show that the donor had the donative intent.

* donor (in most cases) must actually deliver the object to the donee

– actual – actual physical delivery

-symbolic – if it’s impractical or impossible to deliver the chattel, something can be delivered in place of the actual object, like a picture of it or a sale deed or deed of gift.