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

Property Outline

The Four Categories of Lost Property:
1. Abandoned – when the owner no longer wants to possess it. It is shown by proof that the owner intends to abandon the property and has voluntarily relinquished all right, title, and interest in the property. It belongs to the finder, against all others, including the former owner.

2. Lost – when the owner unintentionally and involuntarily parts with its possession and does not know where it is. It belongs to the finder once the statutory procedures are followed and the owner makes no claim within 12 months.

3. Mislaid – when it is voluntarily put in a certain place by the owner and then overlooked or forgotten where it was placed. The finder acquires no rights, instead, it belongs to the owner of the premises upon which the property is found, as against all persons other than the true owner. Reasoning – the true owner will recall where the property was placed and return to claim it.

4. Treasure Trove – consists of coins or currency, usually gold or silver, concealed by the owner. To be considered treasure trove, the property must have been concealed for such a length of time that the owner is probably dead or undiscoverable. It belongs to the finder as against all but the true owner.

Finding (occupancy) – taking what was previously un-owned.

1. Abandoned or undiscovered property
•possessor has exclusive rights against the world.

Goddard v Winchell
•Whether the previously un-owned item belongs to the property owner simply b/c it fell on his land or is considered the property of the finder
•Property was on land naturally and does not fit the characteristics of lost or abandoned therefore belongs to the property owner.
• Requires Intent to possess and Actual taking (but not physical touching).
•reward the person who brings the property to social use.
•meteorite does not become the property of the owner of the land because he never knew it existed. Create incentive for persons to discover.

Eads v Brazelton
•Does the intent to reduce something to ones property, without the actual taking possession, indicate ownership?
•Has the plaintiff done enough to reduce the lead to possession?
•Court held that the occupation or possession of prop lost, abandoned or without an owner must depend on the actual taking of the property with the intent to reduce it to possession.
•one must have the means to possess (equip necessary and the persistent effort to possess (diligence).
•does not require physical touching because it would promote physical fighting between two competing finders.
Reason for the Rule
•What the plaintiff did was not enough to satisfy the intent, he would have had to actually put his boat over the wreck with the means to raise the effects. That would have been enough to satisfy the court.
•expressing intent to possess warns others away.
•Reward the person who reduced to possession because that is most of the battle.
•To reward the discoverer over the possessor would be to create a disincentive to reduce to possession unless you were the finder. Those things found by a person who doesn’t have means to possess would remain unused.
2. Lost Property (treasure troves, public areas)
•Finder has exclusive rights against all but original owner.

Bridges v Hawkesworth
•Whether the circumstance in which the lost item was found on the defendants’ property gives him the right to ownership against the plaintiff who found the item?
•Who has priority, land owner or finder?
•The finder of a lost article is entitled to it against all parties except the real owner.
•Public place, wide open location therefore its fair game and available to possession by finder
•Says a lost item is an unconscious thing so the true owner is not likely to retrace the object to where it was lost. Abandoned is a matter of neglect, does not want anymore. It is generally a jury decision.

Hannah v. Peel
•Whether a land owner, who has never physically been in possession of the premises, exercise control over items that might be ‘lost’ on that land over the finder of the item?
•The brooch never belonged to the plaintiff nor did he have knowledge of it prior to the finding. He never had possession of the premises, therefore he had no right to possession over the finder, who only loses possession to the true owner.
•The court in this case seems to be making a point that the owner of the house needs to know about the presence of the brooch, if you do not it could be fatal to your case. In So Staffordshire, the court still came out in favor of the land owner despite lack of prior knowledge of the lost rings. You do not have to have knowledge if it is embedded or it is in a non-public area.
•Before you are deemed to possess something, you must have the intent to exercise control over that thing, and you cannot intend to ex that control if you do not even know it is there. Does not recognize theory of unconscious possession (unless it’s attached to your land).

Armory v Delamirie
•Whether the right to possession of the formerly lost/unclaimed item belongs to the finder of the item or of the person whose hand it is in last?
•Legal argument was it never belonged to the plaintiff in the first place so he had no more claim to it than the def.
•Finder though not declared with absolute ownership, can keep the property against all but the rightful owner.
•Action lays against the master, who gives credit to the apprentice and is thus answerable to his actions.
•Reward the person who returned it to social use over the owner of the premises because the owner had no knowledge it was there and would never have brought it to social use.
•Prevent a “string of thefts” so that the original owner would more likely find it.

Lost property (Private Areas)
•Owner of the land has rights because he intends to exert “positive control” over the property.

South Staffordshire Water Co. v Sharman
•Whether the owners of private property where a lost item is found, whether ignorant of its existence or not, have rightful possession over the finder of that article?
•Where a person has possession of house or land, with a manifest interest to exercise control over it and the things which may be upon or in it, then if something is found on that land, whether by an employee of the owner or a stranger, the presumption is that the possession of the thing is in the owner of the locus in quo .
•Weigh the exclusive property rights of the premises owner over the rights of the finder because it would create a perverse incentive to rummage through the property of the owner looking for things to which the owner may not have a solid claim.
•Owner might more easily be reunited with the lost property because he is relying on the good faith of a host towards his guests, especially if they have a lost and found policy.

3. Mislaid Property
•Owner of area where property was mislaid has exclusive rights against all but the original owner.

McAvoy v Medina
•Whether the difference between property thus placed by the owner and neglected to be removed versus property lost effects who has the right to claim said property, the land owner or the finder?
•The finder of property voluntarily placed and neglected acquires no original right to the property and the land owner on which the property is found is under duty to use reasonable care for the safekeeping of the same until the original owner comes to claim it.
•DOES NOT apply when the item is mislaid in a moveable chattel, such as a guitar or car, because it defeats the policy that the owner would more likely be able to find it.
•Owner is more likely to come back for the property once he remembers, so weigh the rights of the true owner over the rights of the finder.

Schley v Couch
•Whether the buried money is defined as lost- entitling the finder to possession- or whether it was mislaid- entitling the land owner to possession.
•The finder of buried money is allowed to keep the money if it is considered lost, however “mislaid property is to be distinguished from lost property in that the owner intentionally places it where he can again resort to it, and then forgets it. Mislaid property is said to be left in the custody of the owner, the occupier of the premises upon which it is found, and is generally held that the right of possession to mislaid property as against all but the owner is in the owner or occupant of such premises.”
•The money is considered mislaid b/c it shows a deliberate, conscious, and voluntary act of the owner desiring to hide his money in a place he found safe with the intent to return to collect it.
•Lost would indicate the owner parted with the money in a way that was inadvertent, involuntary, careless, or through neglect.
•4 yrs, which is how long the money is predicted to have been buried, is not enough time to establish the money had been lost beyond the point of finding the true owner.

Property gained through trespass
•Property belongs to possessor. If the rule came out any other way it would lead to an endless array of unlawful seizures, possession gives you rights even if you gained that possession unlawfully.


Definition of Bailment – a mutual assent. Delivery of personal property by one person to another who holds the property under a contract. Implies that one party has a responsibility to another party to take care of their property.

1. Gratuitous bailment – lowest standard of care (holding someone’s wallet as a favor).
2. Bailment for mutual benefit – standard of reasonable care (lost and found at a hotel).
3. Bailment for benefit of bailee – highest standard of care (borrowing a car).
•Can be actual or constructive – a court might deem that a bailment was created even though there was not express contract.
•Can be voluntary or involuntary, but once it becomes voluntary, bailee has a duty to deliver the chattel to the right person.

Responsibilities of a bailee
•Absolute duty not to take any overt acts to destroy the property.
•Protect the reasonably foreseeable contents of containers that are bailed.
A. Delivery of property by a bailor for a specific purpose to a bailee with the expectation the bailee will return it or give it to whomever as directed by the bailor. Doesn’t have to be consideration, but bailee must have:
1. Actual physical control
2. Intended to assume control (can be implied by conduct or words)

B. The bailee is liable for the property & any property therein included that the bailee might reasonably expect. E.g.., plumber takes his truck in to be serviced. Truck gets stolen & his tools are in it. Service station could reasonably expect a plumber would have tools in his truck. They are liable for the truck & tools. Not same result if I took a truck in. They would not expect me to have tools. E.g., Honeymooners in the French Quarter leave car in a hotel parking lot. Car gets stolen and all of their wedding gifts are in the trunk. Hotel is liable for the gifts even though they did not know they are there because the town in a vacation spot. Reasonable to expect there will be luggage and gifts in the trunk. Not same result in downtown Birmingham.

C. The bailee is responsible for exercising a standard of care that any reasonably prudent person would. Behave reasonable under the circumstances.

D. Peet v. Roth Hotel–Just because the bailee was unaware of the value of an object, they obviously knew the identity of the object, and that is sufficient.

E. If bailee delivers

party cannot tack his time onto the time of the original adverse possessor. There must be a voluntary transfer to satisfy the privity requirement.

If the original adverse possessor attempts to reenter the land, then the court will look to one of three views:

1. The statute of limitations begins anew after the original possessor regains control.

2. The statute of limitations continues, and adds the time of the third party intervention, Most courts require the original possessor to act promptly for this to be used.

3. The original possessor’s time continues, but ignores the time that the third party had possession.

b. Tolling
Sometimes the court will toll that statute of limitations for adverse possession for disabilities of the owner. There are three main instances where the court will do this:

1. Infancy (for minors)
2. Insanity (for people of unsound mind)
3. Imprisonment (for people in jail).

Note that only the disabilities at the time of the entry count for tolling the statute of limitations. If the person develops the disability after the adverse possessor has taken the land, then the statute of limitations is not tolled.

Once the disability is gone, meaning that the person has become of legal age, has become sane, or has gotten out of jail, then the statute of limitations begins to run.

6. Claim of Right or Claim of Title – the person has claimed the property as his own, with the knowledge that the actual title is held by someone else.

Two Tests for Claim of Right/Title:
1. Objective Test (majority) – The possessor’s actions must look to the community around him like they are claims of ownership. As long as he is occupying the land without permission, then the fact that he is not actually claiming title does not matter. All that matters is that it looks like he is claiming title. (No intent necessary)

2. Subjective Test (minority) – The possessor must have a good faith belief that he has title to the land. Therefore, if the possessor has a mistaken belief, and if he knew the truth would not have claimed title, then there is no adverse possession.

Note that the objective test is recommended by most scholars, but most courts require a good faith belief of the possessor. Therefore, squatters and willful trespassers are excluded in adverse possession.

7. Good Faith (or Bad Faith)

8. Improvements or Enclose – the adverse possessor has made improvements upon the land or enclosed it.

9. Taxes Paid – the person has paid all of the taxes on the property.

10.Color of Title – legal reason as to why the disseisor believes that they have a right to the land. This can come through a bad deed, or a misrepresentation by a seller. If you have color of title and occupy a portion of land, you have the right to the amount listed on the title.

1. In most states, color of title is not required for adverse possession.

2. Constructive Adverse Possession – if a person enters under color of title, then he is entitled to the entitled to the land described by the deed, and not just the land he has physically possessed because he intends to control whole land. If they didn’t have the tax deed, they wouldn’t have the property.

3. If the adverse possessor does not enter the land with color of title, then he is only entitled to the land actually possessed, and not to the entire parcel of land.

Purpose of adverse possession:
1. reward possessor’s, taxpayers, improvers, users (like the idea of putting land to use);
2. penalize true owner who sits on his rights to long – don’t have to use it, just need to maintain;
3. evidentiary as to who is really owner (lost deed);
4. structural – cleans up records, market the land, etc.

• To show actual possession  build a structure. If property is used seasonally, then a structure will give notice to owner, even if adverse possessor is not present at the time.

Actual, open, and Exclusive

Cheek v Wainwright
•Whether planting the trees in a row on land which had been previously open and cultivated coupled with the periodic harvesting authorized the jury to find a continuation of the possession which began with crop cultivation?
•The essence of actual possession is use of the land to such an extent and manner as to put the world on notice.
•Planting, cultivating, and erecting a building on land for a period of 34 years will be construed as “open and notorious.”
•Trees planted in rows along a public road give a clear and lasting notice that someone is exercising possession by even changing the nature of the land.

•Difference between abandonment and adverse possession