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

I.                   Acquisition by Capture
A.      Property Right: Protection by the state of a claim of valuable resources
a.       Law places great weight on observable fact of possession
b.      Title: May have title against one person but not another
c.       Constructive Possession: Can legally have possession of something even though there is no actual observable possession (i.e. land)
B.      The Rule of Capture: Possession = Capture, not pursuit
a.       If animal is mortally wounded or in a trap = possession of hunter
b.      Title can be lost if animal escapes and returns to natural habitat
c.       Pierson v. Post: Pursuit of fox by Post did not equal possession when Pierson was first to shoot and kill animal
i.      Wild animal: Not in natural habitat
1.       Domesticated wild animals do not count
d.      Rationale behind actual capture rule:  Minimizes quarrels, ease of administration, fosters competition by rewarding successful hunters, and ensures certainty in property rights.
e.      Quasi Property:  Popov v. Hayashi: Judge ruled the profit from a Bonds homerun ball be split
i.      Popov had ball in webbing of glove before interference, Hayashi later grabbed ball
ii.      “Pre-possessory interest”
II.                Acquisition by Find
A.      Finders: Rightfully acquires possession of property of another by actually coming upon or discovering the thing, and having an intent to take possession of it
B.      Prior possessor has superior rights – Finder has possession against all others except true owner
a.       Prior possession trumps all!
i.      Relatively better title
ii.      Prior possession = ownership
iii.      OàF1àF2
a.       F2 can’t claim possession against F1 by saying that O is the true owner
b.      Can’t say 3rd party is the only true owner
iv.      Thieves always win against finders of their stolen property
a.       Don’t want everyone to have to prove how they acquired possession
C.      Property rights are relative: A may have possessory right over B but not over C
i.      Red Fox case: Rancher shoots breeder’s fox, sells skin to fur dealer – who has rights?
ii.      Winkfield Doctrine: if possessor has paid someone other than true owner for property, he is not liable to true owner, whose action lies w/ person who sold it. (In Armory, if true owner showed up he could not recover jewel from jeweler but trover recovered by chimney sweep).
D.      Categories of found property:
a.       Lost property: Personal property that has been parted with casually, involuntarily, or unconsciously
i.      Rule: Finder acquires against all others but true owner
b.      Misplaced property: Intentionally left somewhere and then unintentionally left or forgotten
i.      Rule: Finder not entitled to possession. Goes to the owner of the locus in quo.
ii.      Benjamin v. Lindner Aviation: Money found in wing of airplane was ruled mislaid, therefore finder wasn’t entitled to possession
a.       Dissent: Money was abandoned for some reason. Should go to P/finder
c.       Abandoned property: Voluntarily left with no intention to recover
i.      Rule: Finder retains possession and ownership against all others
ii.      Shipwreck: In some states, belongs to the state. In others, the finder.
d.      Treasure Trove: Cash, coins, etc. hidden or concealed to be found at a later time
i.      Rule: England à Crown. U.S. à Treated as lost property, goes to finder
E.       Forms of action
a.       Trover: Action to recover value of chattel wrongfully taken or retained by the defendant
b.      Replevin: Actions to recover the possession of chattels wrongfully taken from the plaintiff’s possession by the defendant
i.      Possibly recover value of property if lost or any damages to the property
c.       Ejectment: Action to recover the possession of the plaintiff’s real property
F.       Finder vs. Locus in quo – Generally , owner of property prevails
a.       Property found on private land, open to the public
i.      Finder wins
b.      Property found on private land, not open to public
i.      Owner of Locus in quo wins
c.       Goods are attached or under land
i.

                                          iv.      Resulting injury
b.      White v. Samsung: D ran ad depicting P as a robot. D didn’t use P’s name or likeness but it resembled P. P neither consented nor was paid.
i.      Resemblance was enough. P is the only one who it could have been under those circumstances
ii.      Dissent: Didn’t use name or likeness, stifles creativity, only resembled P’s role on the show and not herself
B.      Property rights in embryos
a.       Embryos could be regarded as human life, property, or somewhere in between (quasi property)
i.      Courts mostly characterize as quasi property
b.      Davis v. Davis: Divorced couple fought about what should be done with frozen embryos. Wife wanted to donate, husband wanted to discard them
i.      Court held that need to protect one’s right NOT to have children
ii.      Unless other spouse’s only chance to have children is to use the frozen embryos
iii.      Or there was a prior agreement about what would happen in a case like this
iv.      Trial court was the first and only court to rule that frozen embryos were human beings
C.      Property in body parts
a.       At common law, a person generally had no right in the body or remains of himself or another
i.      Surviving family members had a limited right to direct how a decedent’s body should be disposed of at death
ii.      Lasted until 1968
b.      Uniform Anatomical Gift Act: Person may donate body after death for research and transplant purposes
c.       National Organ Transplant Act: Illegal to sell human organs