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Property I
University of Kansas School of Law
McKenzie, Sandra Craig

University of Kansas, Professor McKenzie, Spring 2010
I.                   FIRST POSSESSION
A.    Acquisition by Capture
                                                              i.      Acquisition of Title
1.      Possession
–          The first person to exercise dominion and control over a wild animal becomes, with possession, the owner of the animal
2.      Constructive Possession
–          Animals caught in a trap or net belong to the one who owns and has set the trap or net.
–          By setting such a trap, one is said to constructively possess those animals snared.
3.      Mere Pursuit
–          Mere pursuit does not constitute the exercise of dominion and control sufficient to give the hunter a property right in the animal.
–          However, where an animal has been mortally wounded so that actual possession is practically inevitable, a vested property right in the animal actually accrues that cannot be divested by another’s act in intervening and killing the animal.
4.      Trespass
–          While a landowner is not regarded as the owner of all wild animals found on his property, a trespasser who kills game on another’s land forfeits his title in favor of the landowner.
–          This is to prevent the act of trespassing from benefiting the trespasser.
5.      Violation of Statute
–          One who violates a statute forfeits his title in animals caught while in violation.
–          For example, hunting without a license.
                                                            ii.      Loss of Title
1.      Escape
–          If a wild animal, captured, and held in private ownership, escapes and resumes its natural liberty, the former owner loses his property right in it.
–          The animal once again is unowned, and the person thereafter to capture it becomes the new owner.
2.      Habit of Return
–          The title is not lost if a wild animal escapes and, through wandering about without restraint, periodically returns to its owner’s home, or if, though endeavoring to escape, it is still pursued by the owner or is by other means liable to be recaptured by the owner.
3.      Marked Animals
–          When certain animals have been captured and reduced to private ownership, it is common for the owner to mark or brand them for purposes of identification.
–          If the animal escapes and resumes its natural liberty, the question becomes whether title is lost.
–          Normally, modern courts will allow title to be retained in the former possessor as long as the animal is marked and the owner exercises all effort to recapture the animal.
B.     Property in One’s Person
                                                              i.      Moore v. Regents of University of California
1.      Issues:
–          Under the duty to obtain informed consent, must a doctor disclose his intent in using a patient for research and economic gain?
–          Does a claim for conversion lie for the use of a plaintiff’s bodily tissue in medical research without his knowledge or consent?
2.      Breach of Fiduciary Duty
–          The attending physician failed to disclose the extent of his research and economic interests in Moore’s cells before obtaining consent to the medical procedure by which the cells were extracted.
–          It is relevant because it could have affected Moore’s consent
3.      Conversion
–          To establish a conversion, plaintiff must establish an actual interference with his ownership or right of possession.
–          However, the hospital and researchers invested in the products: the patented cell line and the products derived from it.
–          Can those be Moore’s property? The majority says no.
4.      Balancing Competing Policy Interests
–          There are two competing policy interests: the patient’s rights and the work of the researchers.
–          The court must balance policy interests of protecting the patient against protecting the research.
–          In Moore, the majority opts to protect the interests of the research.
                                                            ii.      Property in One’s Person
1.      Concern Over Recognition of Body Rights
–          The concern over the question of recognition of property rights in one’s cells would necessarily entail a right to sell one’s own body tissue for profit.
–          If that were to occur, then it would give rise to the moral and philosophical dilemmas, as well as the legal and economic ones.
2.      Bundle of Rights
–          However, recognition of property rights in one’s cells would not necessarily entail a right to sell one’s body for profit.
–          That is because property is an abstraction – it refers to rights and relationships people have with things and not the things themselves.
–          Therefore, a recognition of property rights would mean a bundle of rights: the right to possess, the right to use, the right to exclude, the right to transfer.
A.    Acquisition by Find
                                                              i.      Personal Property Actions
1.      Trover
–          Trover is a common law action for money damages resulting from the defendant’s conversion of something owned or possessed by the plaintiff.
–          The plaintiff waives his right to the return of the object and instead requires the defendant to effectively purchase the object from him.
2.      Bailment
–          A bailment is the rightful possession of goods by a person (the bailee) who is not the owner.
–          A voluntary bailment occurs when the owner of the goods (the bailor) gives possession to the bailee.
–          In the case of found goods, the bailment is involuntary from the standpoint of the owner but not from that of the finder, who has chosen to take possession.
–          By taking possession of found goods, the finder assumes the obligations of a bailee, such as a standard of care.
3.      Replevin
–          Replevin is a lawsuit to obtain return of the goods, not damages.
–          The plaintiff’s possession must have been lawful, meaning it must have been lawful against the person who deprived him of the property.
–          But that does not mean he has to be the true owner – only that he must have a lawful title against the defendant.
                                                            ii.      Lost/Mislaid/Abandoned Property
1.      Lost Property:
–          Finder entitled to possession against all but the true owner.
o   If property is categorized as lost, the one who reduces it to possession becomes its finder.
o   Possession is physical control coupled with an intention to assume dominion over the object
–          Hannah v. Peel:
o   The finder of an object has a superior title over the person who owns the property where the property was found.
2.      Mislaid Property:
–          Finder has no right to mislaid property.
–          McAvoy v. Medina
o   There is a difference between property placed by the owner and then neglected to be removed (mislaid property) and lost property.
o   The finder does not have any right to mislaid property.
3.      Abandoned Property:
–          Finder is entitled to abandoned property.
–          Abandoned property is property that has been intentionally and voluntarily relinquished, with no intent to reclaim.
–          The dominant concern of the law of finders-

onstructive rule has been relaxed somewhat where courts have found evidence of the donor’s incentive that is concrete and undisputed.
–          Symbolic:
o   Some states have statutes proving that the symbolic delivery by writing is always permitted.
                                                          iii.      Donatio Causa Mortis
1.      In General
–          To constitute a donatio causa mortis, there must be intention to make a gift and the delivery of the gift given.
–          Delivery and intention are matters of fact determined by the jury.
2.      Intention
–          The intention does not need to be stated in express terms but may be inferred from things the donor said or did.
–          It must clearly appear that the donor knew what he was doing.
3.      Delivery
–          There must be manual delivery whenever possible.
–          Where manual delivery is logistically impossible, then there must be constructive delivery.
–          This is necessary to protect against fraud.
                                                          iv.      Inter Vivos Gift
1.      In General
–          To make a valid inter vivos gift there must be intent to make a present transfer, delivery to the donee (either actual of constructive), and acceptance by the donee.
–          The one claiming the gift has the burden of proving these elements.
2.      Intention
–          As long as the evidence establishes intent to make a present and irrevocable transfer of title or the right of ownership, there is a present transfer of some interest and the gift is effective immediately.
3.      Delivery
–          In order to have a valid inter vivos gift, there must be delivery.
–          Delivery may be a physical delivery of the subject of the gift or a constructive or symbolic delivery as long as it is sufficient.
–          The rule of delivery requires that the delivery necessary to consummate a gift must be as perfect as the nature of the property and the circumstances and surroundings of the parties will reasonably permit.
4.      Acceptance
–          When the gift is of value to the donee, the law will presume acceptance.
A.    Present Interests
                                                              i.      Elements of Present Interests
1.      Four Kinds of Present Interests
–          Fee Simple Absolute
–          Fee Tail
–          Fee Defeasible
–          Life Estate
2.      Alienable/Devisable/Descendible
–          Alienable: The property can be transferred
–          Devisable: The property can be transferred by will
–          Descendible: The property can be transferred to descendents intestate
3.      Heirs
–          If a person dies intestate, the decedent’s real property descends to his heirs.
–          Heirs are persons who survive the decedent and are designed as intestate successors under the state’s statute of descent.
–          A living person has no heirs.