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

§1.2 What is Property?
(1) PROPERTY DEFINED: Property is the relationship of two or more people to a thing as endorsed by the state. It is an asset that can be bought, sold, or given away- and it gives wealth at the expense of someone else. Property laws are not applied retroactively.
a. Property Defined:
i. relationship of 2 or more persons to a thing as endorsed by the state; asset which can be bought, sold or given away; gives someone wealth at the expense of someone else; changes in prop law not applied retroactively.
b. Rights of Prop Owners:
i. possess, mortgage, exclude, sell, gift & devise by will; not always absolute rights, may be subject to claims of others, including the state
c. Concept of Title
i. Usually means relatively better title than another person, but does not mean absolute right in property
ii. Thief can’t pass good title to his purchaser
iii. Marketable title: free of significant risk of litigation, you want this when purchasing land
d. Concept of Possession:
i. Actually having something in possession; first in time, first in right; investment-backed expectations, expenditure of labor, might makes right; can be constructive possessor if law says you should have possession even if never have
e. Real & Personal Property
i. Real prop: anything permanently attached to the land, includes crops, tress until severed; anything permanently affixed to land—fixture
ii. Tangible personal prop: chattels, any prop that can be seen and touched
iii. Intangible personal prop: when person has legally enforceable claim against another, includes bank accounts, stocks, copyrights, etc
a. Judge-made law: develops through cases presenting disputes to the courts for resolution
b. English law: law of England including that which was in effect in the colonies
c. Forms of action
i. Trespass: injuries done to P’s possessory interest in chattels or land
ii. trespass quare clausum fregit: D’s direct interference w/ P’s actual possession of P’s land resulting from unlawful entry
iii. trespass de bonis asportatis: injury to P’s personal prop resulting from “carrying away” of Π’s goods or excluding P from use of goods
iv. trespass on the case: D’s indirect or consequential injury to D’s chattels or land resulting from D’s wrongful act
v. trover: recover value of prop taken by D rather than thing itself
vi. replevin or detinue: recover actual prop
vii. ejectment: action to recover possession of real prop; P must show strength of own title, showing weakness of D’s is not enough (see: Tapscott); D can show title of 3rd party but DN help unless 3rd party gave D title or right to occupy
d. Legal vs. Equitable: courts of law could award money damages or possession, courts of equity could issue injunctions or require specific performance

§1.3 Acquisition of Property Rights by Capture
v Pierson v. Post: pursuit does not give huntsman title to occupancyàwild animals only become property once actually possessedàrule of capture, fosters competition; applicable to fugitive materials (oil, gas), where the party first obtaining (extracting) the material has claim even if material were initially under the land of another
A. Possession of wild animals (as per opinion in Pierce et al):
1. actual physical possession or occupation
2. deprived animal of natural liberty: mortal wounding (dicta—wounder may obtain property right against one who actually kills animal, as long as the pursuit is continued)
i. netting can also confer a property right (although courts vary on judgment regarding whether the netting must render escape impossible)
3. certain control
4. manifest intent to appropriate animal
5. or custom
Case Statement: Pierson
§In the case of wild animals, mere pursuit on public land is insufficient to establish a title of occupancy that would allow action for the pursuer to obtain remedy for the actions of another who kills the pursued animal.
Ø Popov v Hayashi : It cannot be established that Popov (P) retained control of the ball as he descended into the crowd, or if would have maintained possession had the crowd not descended upon him. To establish ownership he must have either (1) possession of the baseball, or (2) right to the baseball, both of which cannot be established definitively. He does, however, meet the criteria of “intent to appropriate,” and the fact that Popov was attacked requires vindication. Hayashi was not a wrongdoer. There must be a middle way.
§1.4 Acquisition of Property Rights by Find
v Armory v. Delamarie: The finder has best claim second only to that of the true owner.
v Law of Finders: “A finder has good title against all the world but for the true owner”
Ø General rule: finder’s rights are subservient to the rights of the prior possessor, even if the prior possessor cannot establish that he is the true owner
v Favorite v. Miller: If property is knowingly found embedded in the earth of privately owned land and is removed without the express permission of the owners by a trespasser upon the land, these wrongs will supercede any claims to the property as finder the trespasser may set forth.
v Benjamin: Where the property is characterized as ‘mislaid’ under the common law distinctions of found property, the claim to the property rightfully vests in the owner of the locus in quo before the claims of the finder are recognized.
v Hurley: As the common law distinction between lost and mislaid property as applied to the found property in question is not recognized by NY statute, any distinction in regards to the rights of title to the property properly give way to the statute, which awards to the person who first takes possession (the finder) the property upon passage of the statutory period for retention unless the finder is an employee of the owner of the locus in quo. As Hurley is classified as an independent contractor, he is not characterized as an employee and thus does not lose preference of claim.

Lost: owner unintentionally and involuntarily parts with possession of the property; has no knowledge where to find property.

finder wins

Mislaid: property is voluntarily put in certain place by owner where it may be obtained again at will, owner then overlooks/forgets where property was placed (involuntary separation)

owner of locus in quo wins

Abandoned: owner no longer wants possession of property, evidence shows the owners intended this voluntary relinquishing of all rights, titles, and interest therein

finder wins

Treasure Trove: coins or currency concealed by owner, must include antiquity: hidden, concealed long enough to allow court to infer that the owner is likely to be dead or undiscoverable

Finder wins


Trespasser: finder’s claim to lost property is second to claim of the owner of the land on which the property was found if the finder a trespasser when found property
Private land: if find is made on private land open to the public, finder’s claim can prevail; if find occurs on private land not open to the public, the finder’s claim will generally not prevail to that of owner of locus in quo

Embedded – Owner of locus in quo

Employee: if employee of the landowner, goods found by the employee are found on behalf of the landowner
A finder of ‘mislaid’ property does not have a claim that prevails against that of the owner of the locus in quo as long as the state statutes have not eliminated the distinctions between classes of found property

§1.6 Acquisition of Property Rights by Creation
· White: There are protections for name and likeness.
§ Identity is not protected
§ Overprotection can result in the suppression of creativity and there must be a balance between protection and room to build upon intellectual property ………….
· Davis: Where the subject matter in question are preembryos, the property is not properly considered either persons nor entirely property; rather, they are to be considered ‘quasi-property’ and the ……………
· Brothe

nty deed:
· Quitclaim deed:
· Winchester v. Stevens Point: When a P brings an action for damages, alleging she is the owner of the damaged property, and cannot prove good paper title, she cannot recover.
1. action to recover possession of real property (Tapscott)
2. action to recover damages to real property (Winchester)
1. relevant documents (deeds, mortgages, easements, wills, other probate records, liens)
2. root of title, chain of title (person is deemed to have good title if person has ‘chain of title’ back to root)
3. searching title (search paper record back to root of title
àPERSONAL PROPERTY: based largely on possession
1. estoppel: if the true owner represents by words or conduct expressly or impliedly that the possessor is the owner, or the true owner has otherwise enabled to transfer a good title, the true owner is estopped from claiming that the buyer has not acquired good title from the so long as the buyer acted in good faith (Porter)
2. voidable titles: where true owner initially intends to clothe another with a title, but due to fraud, misrepresentation, or duress is able to void the transaction and reclaim title. Prior to reclaim, however, transferee has sufficient title to transfer good title to another with no notice of the rights of the true owner
3. UCC §2-403: ‘statutory voidable title’ rule (entrust goods to the possession of a merchant who deals in like goods, give merchant the power to transfer all rights—voidable title, better title than the merchant truly has from the true owner); statutory estoppel
§2.2 Powers
· Porter v. Wertz:
· Bailment: contractual relationship between two parties, one entrusting goods to another with an obligation, express or implied, that the goods will be returned at some point in time
§2.3 Obligations
· Good Faith Purchaser Rule: UCC §2-403 permits taker to receive interests greater than those possessed by the transferor (voidable title—see statutory voidable title)
· Peet v. Roth Hotel Company: if the goods are not available to be returned to the bailor because of a casualty, the bailee is liable only if the bailee was negligent; and where the bailor and bailee agree to a transfer of possession of control of bailed goods, a bailment contract is formed regardless of any mistakes in the value of the bailed goods.
àalso, degree of care dependent upon the type of bailment:
a. primary benefit to the bailor – gross negligence required
b. primary benefit to the bailee – slight negligence required
c. mutual benefit – ordinary care (Peet)
· Ellish v. Airport Parking Company: When the P parks her car in a self-service parking lot owned by the D, there is no creation of a bailment contract when the transaction itself is impersonal, and thus the D cannot be held liable for negligence when the car of the P is not in the lot when she returns, as the P has assumed the risk of parking her car in the lot; “in the absence of any proof of neglect by the D, then, we do not think that the D should be held responsible for the loss of the automobile.” (185-6)àburden on the P
àUnder the common law, bailee presumed negligent if did not present satisfactory explanation as to why goods could not be delivered