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


I. Acquisition of Property Rights:
A. Define property:
1) Ownership only becomes relevant if there is a competing claim, if no one else around, there are no consequences
2) The relationship between 2 or more persons to a thing as endorsed by the state
3) Property Law is a product of scarcity and politics
a) Allocation of Scarce Resources
i. First in Time, First in Right
1. Promotes a capitalistic society
2. Rewards the investor
ii. Sweat Equity
1. Expenditure of energy and blood
iii. Investor Expectations
1. Spent $, should be yours
4) Property rights are “the legitimate power to initiate decisions on the use of economic assets.”
a) Proverbial bundle of rights:
i. possess
ii. mortgage
iii. exclude
iv. sell (alientate)
v. gift
vi. devise by will
b) economic assets are: something that can be bought, sold, or given away
5) All Property rights are relative
a) May have a right against X, but not against O (ex. Easements of local utility companies)
b) Title: relatively better title, or that one person holds title but holds the title subject to the legitimate claims of others
6) Property rights do not necessarily equal ownership
7) Constructive possession (fictional possession): The law may conclude that X has title even though X may not have had observable possession of the thing or even know of its existence
i. Ex. of family members of deceased have constructive possession of deceased’s property so robbers can’t come and squat on property and gain possession.
8) In U.S., there is no such thing as unowned land
9) Generally held by individuals. (marriage= joint owners)
10) Rights of succession
a) Election/hereditary
b) public offices: succession defined by positive law (statutes and judicial rule)
c) private offices: defined by contract or custom
11) job tenure: like a property right in that it is secured from adverse action, but does not involved economic risk
12) pension rights: not property
13) ordinary insurance: property in every sense of the word.
14) No essential difference between public facilities (common property) which are free and those which charge admission. Embodies a system of rationing of access and succession
15) Some property has been taken out of the ‘system of property (the system of markets and inheritances)’ and vested in the public. i.e. national parks.
B. Acquisition of Property Rights by Capture
1) Pierson v Post (NY 1805) Post hunting fox on the beach, Pierson killed and carried it away.
i. Charged with Trespass on the Case: indirect harm, wants $ (tried under wrong writ- should be a trespass case)
b) Mere pursuit of a wild animal on public property does not constitute possession. (Pierson- taker- won)
i. Property over wild animals is acquired “by occupancy only”.
ii. Owner is one who has control over animal, depriving it of natural liberty.
iii. Blackstone: possess an animal if it can’t escape and use its natural liberty. But if at any time the animal regains its natural liberty, it ceases to be the owners
iv. (“Blackstone’s Commentaries on the Laws of England was probably the single most important book on the common law ever written” p. 16)
c) Dissent: Pursuer has ownership rights.= SWEAT INVESTMENT
i. If animal is being chased by dogs, it is the hunter’s possession, not the ‘chance occupant’.
ii. Barbeyrac: “property in’ wild animals ‘may be acquired without bodily touch or manucaption, provided the pursuer be within reach or have a reasonable prospect of taking, what he has thus discovered an intention of converting to his own use.’
d) Court here was setting a public policy (which can be overridden by legislature)
2) Hypos:
a) If this case took place on Post’s land, Pierson would have been trespassing, so Post would win (have possession of the wild animal)
b) Kurtz sets fox free from Post’s land, fox runs off property, Pierson kills (if not in cahoots, Pierson would win because wild animal was returning to his natural unowned state, Pierson would have no way of knowing it had been previously owned)
c) If Post had tagged the fox, Pierson shoots on public land (probably find for Pierson b/c tag is hard to see.)
d) Stevens v. Albers: Fox was hunted by Pierson and Post on 3rd parties’ land (both trespassing, so that does not play a factor in decision, so just goes back to Pierson v. Post- find for Pierson)
3) Common forms of action under common law:
a) trespass qcf: direct harm to land, $$, jury
b) trespass de bonis asportatis: direct harm to personalty, $$, jury
c) trespass on the case: indirect harm to land or personalty, $$, jury
d) trover: wrongful taking of personalty, $$, jury
e) replevin: recover possession of a wrongfully taken chattle, judge
f) detinue: see replevin
g) ejectment: recover possession of wrongfully taken land, jury
4) Young v. Hichens:
a) Action for conversion of fish which were never in the P’s net, but had been frightened away from entering in to the P’s net by D, and caught in his own net. (Found for D, P had not take

ed (Does possessor have to give it to true owner?)
1. depends on where you live…
2. Finders can usually be compensated for damages (usually a % of the value)
a. This rule encourages people to find lost property then return to true owner
ii. Landowner sues a trespassing finder
1. Landowner wins (like Favorite v. Miller)
iii. Find $20,000 in Victoria’s Secret
1. ask why the person was there? (here land was open to public but privately owned like Armory v. Delamarie)
2. what type of property was it? (mislaid, lost, etc.)
3. Finder would probably get $$
5) Owner of the locus in quo and true owner have better claim to title than the finder of mislaid property discovered on/in their property.
a) Benjamin v. Linder Aviation, Inc. (Iowa, 1995) ($$ found in wing of plane- plane owner won)
6) When lost property is found on public or private land, the first possessor of the found property is said to be the finder, who has a right to the property against all but the true owner (under typical statute)
a) Hurley v City of Niagara Falls, NY (p 60)(1968) (P, a general contractor found $$ under floor board)
b) Employees forfeit right as finder to employer if found while on duty
7) Bailments
a) Rightful possession by one person of the goods of another with an obligation/expectation to return the goods to the rightful owner.
i. Usually result of an express contractual relationship
ii. Bailee can recover goods from a wrongdoer
iii. Wrongdoer cannot defeat Bailee’s claim by showing title in a 3rd party (Bailee is prior possessor)
iv. A finder is not usually a bailee because there was no agreement or contract between finder and true owner
8) The good Ship Titantic (salvage rights to items found)
a) Salvors of sunken vessels are often awarded full ownership b/c true owner is unlikely to return and claim right.
b) Mere discovery does not guarantee rights, must act to change discovery in to possession
c) Applies to law of finders: previous owners assumed to have abandoned property.