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Property I
University of Kansas School of Law
Glicksman, Robert L.

I.       Acquiring Property Rights
The law generally protects possessors
Ownership is not necessarily possession – For ex., a lessee has legal possession of an apt., and may kick out LL or other owners
Historical views of property- had to fit one of the 2 writs
v     act by D- misfeasance
v     which resulted in direct forcible injury
v     P’s person or property in P’s possession
Trespass on the case
v     act or failure to act (nonfeasance) by D- provided that the D had a duty to act
v     which resulted in injury – non necessarily direct or forcible
v     to property of P (even if not in P possession) or to some non-property interest of P
How can u acquire property?
A.       Capture- –
1.       Pierson v. Post—fox hunting
o       For possession to occur one must have actual bodily possession. If this does not occur, an animal must be mortally wounded the possessor must not give up pursuit, and the animal must be deprived of its naturally liberty = occupancy.
o       Post did not have occupancy of the Fox…ct ruled for pierson
o       Rule- ownership/occupancy of wild animals is gained by capture— unequivocal dominion and control
o       POLICY REASONING: the ruling in this case encourage people to continue to engage in sport b/c the custom may unjustly take away property
o       doing a just cause for society b/c fox are negative to livestock
Three Part Test:
Plaintiff must show: 1)appropriating animal for individual use; 2)depriving animal of liberty and choice; 3) brought the animal into physical control.
2.      Ghen v. Rich—whale—different from Pierson b/c of customs
o       Usage customs can be used to determine property rights— usage apply very narrowly to this specific trade
1.      reasonable   2.practicable 3.fair-the custom provides a benefit to the person who finds the whale 
o       Rule- To do everything practical within the practice to secure possession
3.      popov v. hiayshi..—baseball was abandoned..or was it
4.      Keeble v. Hickeringbill—duck pond—luring wild animals to one’s property
o       Shooting of gun over π duckpond was interfering w/ his livelihood–hinderance
o       It was a violent and malicious act to shoot the guns over the duckpond..Keeble (π) was able to recover damages. HOWEVER- if ∆ had set up a competing duckpond it would have been lawful and there would be no damages.
o       Keeble had constructive possession over ducks—Const possess- discourages trespass; which is Y it is so important.. good policy argument for balance of society
B         Finders- –  
·         bailment: rightful possession of goods by a person who is not the owner
·         voluntary bailment: owners of goods (bailor) gives possession to the bailee, as when you leave clothes with the laundry
·         Duty of Bailee
Depends on who is receiving the benefit
1)     If bailee is the sole beneficiary of the bailment, standard of care is high, slight negligence is a breach of duty
2)     If bailor is sole beneficiary, the standard of care is low, gross negligence is a breach of duty
3)     If the benefit is mutual, the standard of care is reasonable care
*Finders are involuntary bailees
Generally, there is strict liability for misdelivery, but there are two exceptions:
1)     Claim check
2)     Involuntary bailment
1.                  Armory v. Delamirie-ring
Armory found jewel and took to D’s shop for appraisal; D did not return it; P sues D; value to boy [trover- money damages resulting from defendant’s conversion; $ damages given instead of specific performance (exception—specific performance given for land and certain pieces of chattel].
When a person finds something they are the owner of the property, unless the true owner claims it
Finder must both
Ø      Acquire possession
Ø      intend to have dominion over it
 The Winkfield Doctrine:
o       the courts usually bar an action by the true owner against the present possessor if the
o       bailee has recovered from the present possessor (present possessor shouldn’t have to pay twice)
2.                  Hannah v. Peel–Brooch
o       D Peel owned a large house but did not inhabit; P found a brooch in odd place; gave it to police; 4 years later police returned it to owner of house (D) and D sold it; Court held that the finder has a claim to found property superior to that of the owner upon which the property was found—so long as the owner was never physically in possession and had no knowledge of existence; only substitutional relief($).
o       HOLDING: brooch was lost and not attached to land, ∆ never physically possessed the premise—π wins
o       GENERAL RULES found within Hannah v. Peel:
o       Bridges v. Hawkesworth: Parcel was never in custody of shop owner or in possession of his house. A person does not necessarily possess everything that is unattached on the surface of land. Some courts hold that if the object is found in a private part of business (behind counter or in storeroom) it belongs to owner. If it is found in public part, it belongs to finder.
o        South Staffordshire Water Co. v. Sharman: A worker was cleaning a pool for landowner and found rings. Court held that if a servant or age

ession and the use of land as intended. D exceeds statute of limitation due to tacking.
Prescription v. Ad possession- ad poss gives the trespasser title or ownership and prescription- just gives a right to use the land- like an easement or a right of wy
C         Gifts—
o       A gift is a voluntary conveyance to another. No consideration involved. Three main requirements to make a gift:
v     intentional
v     delivery
v     acceptance
1.                  Newman v. Bost
o       Court held that constructive delivery of a gift is sufficient if actual delivery is not possible. [D = estate of Van Pelt] gave a gift causa mortis of keys to a bureau, the bureau passed, but not life insurance policy inside did not, since it could be given manually [prevents possibility of fraud]. Furniture in P’s room and any piece of furniture that keys opened. 
o       Otherwise, found for P = no actual delivery needs to be backed by factual evidence. Intent + delivery = donatio causa mortis
2.                  Greun v. Greun (painting)
o       Court held that a donor can make a valid inter vivos gift of a chattel (in this case an expensive painting) if the donor retains a life estate in the chattel and never surrenders possession to the donee before the donor’s death. 
o       TEST: donor intended to transfer a present interest or intended the gift to have no effect until after donor dies (vested remainder). Once an inter vivos gift is made, it is irrevocable and vests immediately in the donee [present interest]. Delivery of letters (symbolic delivery—intent) by P’s father conveyed gift w/life estate and acceptence occurred = present intent and possessory interest [title]. Possession not important unless intent + delivery do not exist
o       Intervivos gifts = unrevocable
II.    Estates in Land
A         Present Possession
1.      Fee Simple Absolute
2.      Fee Tail
3.      Life Estates
4.      Fee Simple determinable
5.      Fee Simple Subject to condition Subsequent
6.      Fee Simple subject to executory limitation
*** present interest 4-6 are f