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Property I
University of Iowa School of Law
Hines, N. William

I. Acquiring Property Rights
a. Introductory Ideas
i. Property
1. Alienate – can transfer, sell, descend, gift
2. Limited supply
3. Can use it
4. Can tell others not to use it.
ii. Flemming v. Nestor – man lost social security benefits upon being sent out of country, social security is not property, for property must be able to tell others what they can do with it, congress tells what to do with social security money.
b. Claims to Unowned Property – Wild animals must be captured to be owned. An owner of land does not automatically own the wild animals on the land.
i. Occupancy can be established by securely capturing an unowned object/animal.
ii. Ownership can be established if item is securely in another’s instrumentality.
iii. Act of organizing or securing unclaimed property may establish property right.
iv. Pierson v. Post – fox hunt where hunting and other comes, shoots and takes away. If hunting an animal, you must capture or mortally wound with persistent chase, or catch in a trap to acquire title
v. Young v. Hichens – fish mostly surrounded by net of fisherman, almost catching a wild animal is not enough to claim property right. All but possession does not equal possession.
vi. Keeble v. Hickeringill – man lured ducks onto land with decoys, neighbor scared away the ducks by shooting at them. A person may not willfully prevent another from capturing wild animals where that is the persons trade or benefit.
vii. State v. Shaw – man took fish from nets in water. Nets put there by company to catch fish. Fish had a chance of escaping. Unclaimed property secured in a tank or trap is sufficiently secured even if there is possibility of escape.
viii. Popov v. Hayashi – man almost caught baseball then another got it in the end. Customs are sometimes used to determine who captured.
c. Finders’ Claims to Lost Property – a possessor prevails against all but the true owner, and a prior possessor prevails against a subsequent possessor. If the property is found on private property then the courts will normally look at the common law classifications for found property.
i. Common Law Classifications:
1. Abandoned property: owner no longer wants property. The rights go to the finder as opposed to all others including the former owner. Property that looks as if it has been deliberately concealed is not abandoned property.
2. Lost property: when owner unintentionally and involuntarily parts with property and does not know where it is. Property rights go to the finder. This again can be determined by the place and manner in which the property was found.
3. Mislaid property: property that is voluntarily and deliberately put in a certain place by an owner who later forgets where it is or cannot pick it up. In this case the rights go to the locus in quo with the idea that the true owner will come to that spot if they ever want to reclaim their property.
4. Treasure Trove: consists of coins or currency concealed by the owner. Treasure trove has to show significant antiquity. Rights to the finder because the treasure will be so old that the owner is either long dead or undiscoverable.
ii. Finder can forfeit his rights by unlawfully trespassing to claim property.
iii. Objects buried in the ground belong to the landowner.
iv. Some states pass statutes that award the finder so that finders will be encouraged in being honest so that the found items will come to light.
v. Armory v. Delamirie – boy found jewel in chimney, and jeweler tried to take it from him. The finder of property can claim rights to the property, but his rights are not absolute against the rightful owner of the property.
vi. Favorite v. Miller – man found part of King George statue on another’s land, man was trespassing and statue was underground so he had no right to property.
vii. Benjamin v. Lindner Aviation – man found money in airplane wing while working on it. Money classified by court as mislaid, so it went to owner of plane (locus in quo).
viii. Iowa Code Section 556F – this statute only applies to “lost” property. If over $5 is found, report and post notice on public courthouse and if over $40 put in paper for 3 consecutive weeks. If unclaimed after a year, it is the finders.
d. Testing the Boundaries of Property Concepts / Creation – the purpose of recognizing property rights by creation is to reward labor. However, problems arise in defining “creation.”
i. Intellectual Property – this i

s not necessary, if it is impossible or impractical.
ii. Constructive – handing over means of obtaining possession or control in a unique way(key or treasure map).
iii. Symbolic – handing over object that represents the item( a picture, letter or deed)
b. Through a third person
i. If donor delivers to his agent, then no delivery.
ii. If donor delivers to donee’s agent then delivery is complete.
iii. If donor delivers to independent agent (escrow agent) then delivery is complete.
3. Acceptance – the donee must accept the gift, but where the gift is beneficial to the donee, acceptance is presumed. This is rarely an issue.
ii. Types of gifts
1. Inter vivos gift – gift made during donor’s lifetime and delivered with the intent of irrevocably surrendering control over the property.
a. Gruen v. Gruen – son given painting by father. Delivery never actually occurred, but it was impractical, so symbolic through a letter.
b. Albinger v. Harris – man gave woman wedding ring, multiple breakups and exchanges of the ring. Eventually man said woman can have the ring. Man tried to sue to get it back, but courts said it was an unconditional gift to woman.
c. Colavito v. New York Organ Donor Network, Inc. – kidney (s) donated to boy. One went to boy, but was unusable, meanwhile, other kidney given to someone else. Court said this isn’t property, and no right was lost because it wouldn’t have worked for the boy anyway.
2. Causa mortis gift – gift made in contemplation of immediately approaching death. Courts are strict in watching for the elements of gift.
a. 4 things to show
i. Intent to give gift if death results from imminent peril
ii. Competent to make gift
iii. Delivery complete before death
If death doesn’t result from feared illness then the