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Property I
University of Kansas School of Law
DeLaTorre, Phillip E.

Property I Outline (Part I- DLT)

FINDING (Chapter 7) The law of finders and the consequences of possession

General Concepts:
· The fact that the owner has lost or mislaid his property does not lead to the divestiture of his title. The owner relinquishes his title when he abandons the property.
· Property is “lost” when the owner has accidentally and involuntarily parted with his possession and does not know where to find it.
· Property is “mislaid” when, judging from the place where found, it can reasonably be determined that it was intentionally placed there and thereafter forgotten.
· Abandoned property is property that the owner has voluntarily relinquished all ownership of without reference to any particular person or purpose. It is necessary to show an intent to give up both title and possession.

GODDARD (p. 85) (action in replevin- aerolite in tenant farmland): original finder v. landowner; object embedded in land by nature’s force is property of owner
Finder’s rule: has the right to possess as against the whole world except the true owner
Landowner rule: (1) embedded, buried or affixed; (2) naturally part of the earth or naturally placed there

If the meteorite is not embedded, is small enough, and the person is a non-trespasser, then the object is fair game (we don’t favor trespassers b/c don’t want to encourage it)
Various ways to acquire real property (escheat, occupancy, prescription, etc.) p. 87
Accretion changes boundaries b/c expected over time, avulsion does not b/c unexpected

What must be taken into account for an object to be taken into possession?
Nature/type of object:


Location of object:

Public v. private

Public policy (law should not be arbitrary)
Finder’s Rule: encourages industriousness, alertness, exploration
Landowner’s Rule: protect security in own land, confidence, incentive to acquire property

Oil and gas like wild animals- unowned until extracted; another view is that the landowner owns the oil and gas under his land, but that ownership is lost as the oil or gas moves into another’s well (Note 6, p. 89)

Cultural property of the state? (Note 9, p. 90)

EADS (p. 91) (placed boat over lead): abandoned property/how do you reduce to possession
Rule: reducing to possession (or establishing means to reduce) depends upon actual taking
· What constitutes actual taking? Depends on circumstances, i.e., size, ease of taking possession, accessibility, etc.
· We want to reward/encourage finders to do the best that is reasonably possible under the circumstances; finders provide evidence of intent to acquire
· It’s not enough to have a good chance, want to reward and encourage successful pursuits

Test for abandonment: voluntary relinquishment of the property
· Length of time lapsed/lack of use
· Original owner intending to relinquish all claims

A thing capable of ownership but not then owned belongs to the person who acquires actual or constructive dominion and control over it and has the intent to assert ownership over it.

Wild Animals – in natural state are unowned. They become private property upon being reduced to possession. If they escape they are unowned again.

Location is relevant (e.g., NYC or Burma) b/c of natural habitat idea
Mere pursuit (Note 4, p. 93) does not constitute exercise of dominion and control sufficient to give a hunter a property right in the animal. However, where an animal has been mortally wounded (or captured- trap or net) then a hunter has a vested property right (constructive possession).
Trespasser on another’s land or person violating a statute (e.g., no hunting license) forfeits his title.

Doctrine of taking possession applied to abandoned goods, wild animals, underground liquids and gases, and western surface water rights.
Abandoned Shipwreck Act of 1987 (Note 6, p. 95)
Prisoner returned to cell after escape, did not abandon property (Note 7, p. 95)
Destroyed object doesn’t make it abandoned (Note 8, p. 95)

Public Policy
Possession = actual taking; incentive to reward industriousness; sets standard of reducing to possession; discovery not sufficient b/c such a rule would provide little encouragement to pursue the often strenuous task of actually retrieving property and returning it to a socially useful purpose and yet would bar others from attempting to do so, Treasure Salvors, Inc. p. 93

ARMORY (p. 95) (trover- ring in the fireplace): who owns an abandoned thing? (refined finder’s rule),
· in this case there is most likely a true owner out there somewhere
· Even wrongful possession give you rights against everyone except for true owner
Rule: Possession counts for a lot, gives you rights against everyone except:
a) true owner
b) landowner- embedded, finder is trespasser
c) prior finders- rights to the item not forfeited if subsequently lose item

(inconsistent w/ wild animals: lose animal= no claim; lose ring=claim against)

Public Policy for Possession
· Clear rule
· Rewards and encourages industriousness, alertness
· Prevents further takings down the line (not encouraged to take from original finder)

Duties of finder

Reasonable means to identify and locate the true owner
Maintain property in interim

Unless onerous

BRIDGES (p. 96) (money found on store floor in public part of shop): who owns a lost item
Rule: finder prevails over landowner if lost, landowner prevails over finder if mislaid

Not embedded (Goddard)
Public place (or public portion of private place) (

o you now)

If landowner and property is mislaid you don’t have a choice, you have duties.
· Trustee obligation to true owner b/c of express or implied invitation to come on property

Landowner’s rule applies to mislaid property (reasons of dominion/custodianship and bailment)

When finder provides landowner knowledge; landowner establishes dominion (and ownership, except as against the true owner)
If landowner fails to take possession and the true owner comes back then the landowner would be liable since he failed to perform his duty

SCHLEY (p. 103) (money found in jar buried under garage floor): mislaid in the ground (carefully placed in jar and then buried in the ground voluntarily); Justice Calvert wants property embedded in soil to supersede everything; Justice Wilson wants to abolish lost/mislaid distinction and always favor the landowner

If bills were lost and embedded would still probably favor landowner
If embedded and considered abandoned could favor either party
· Despite intention of mislaid, it’s still in the ground
· Not abandoned? Or is it?- court concluded mere lapse of time not evidence of aband.

Either way, rests w/ landowner

Court of appeals said it was treasure trove- gold or silver coins, plate, bullion, etc. found concealed (e.g., in earth, house, bureau, etc.) the owner of which is unknown.
· Common law view said TT goes to finder (Oregon case, Note 2, p. 107))
· Modern view- no exception for treasure trove, look to basic rules
Landowner generally prevails over the finder solely b/c finder is a trespasser. (Note 3, p. 107)
If die with no devisees or heirs then property escheats to ultimate heir (the state) (Note 4, p. 108)

Legislation on Lost and Found Articles (N.Y. Statue) (pp. 110-111)
· Encourages finders to turn property over to police with the possibility that they in time could become the true owner

Hurley finds $5K while remodeling Moraca’s house, shows to M who says not his, H says will deposit it but tries to spend, gets caught by police; possible criminal sanctions against Hurley, fall back on finder rules- favor M (Note 1, p. 111)

Innocent finder may be subordinate to:
· True owner
Landowner (buried, mislaid, finder is trespasser, private part of shop