I. Capture
A. Wild Animals – Acquisition by Capture
1. Pierson v. Post – Post wants the fox back from Pierson claiming conversion. Court decides for Pierson. You deprive it of it’s natural freedom, but if it escapes it gets it back. It is not a protectable property, ownership come from capture (ie killing), chasing isn’t enough.
2. Ghen v. Rich – Whaler wanted the money from the whale, the profit. Commercial setting, common practices, important to community. Ghen had done as much as physically possible to capture the whale, ownership started with lance in the whale. (making it different from foxes). Custom determined ownership. Rich should of known it was probably a sham sale.
3. Keeble v. Hickeringill – brought suit for loss of profit, land-over right – he owns what is on his land (Ratione Soli), interfering with property interests. D says they were not P’s ducks, but it falls closer to capture with the business. Public policy – fair competition improves competition, D’s conduct maliciously interfering.
4. When wild animal escapes it becomes property of next possessor. Domestic animals will still belong to you because they are more likely to come back.
B. Moore v. Regents – Body
1. Court concerned with bigger picture of selling organs, can a conversion argument work? Tradition of respecting the body. Moore had discarded the spleen. Public Interest in research.
2. Doctors had no guarantee it would work out so well
3. Preventing research? Conversion is strict liability – holding scientists liable
4. Drawing lines – Ownership of property but not all the rights of property (can’t sell degree, your prescriptions, firearms, controlled substances
5. Societal judgment of what people can buy/sell/possess
C. Finders
1. Lost and mislaid property – a finder’s title is good against the whole world except the true owner, prior finders, and (sometimes) the owner of land where an object is found.
a. Lost – “slid out of the hole in your pocket”
i. Armory v. Delamirie -P’s gem unless the rightful owner steps forward. (trover – defendants conversion to his own use of chattel owned or possessed by the plaintiff)
1. Bailment – lawful possession of property and you are not the owner. Armory is the bailee – true owner is the bailor
ii. Hannah v. Peel- Hannah wins, finder, prior possessor, physical not constructive, he gets the value of the jewell. He is still the bailee if the true owner comes along. Because Peel never moved in he never had constructive possession of the house’s unknown lost contacts.
1. H – > Police – > Peel – > Spinks (66) – > Customer (88)
iii. Damages
b. Misplaced – true owner placed somewhere with the intention of returning to it.
i. McAvoy v. Medina – Given back to barbershop owner, be able to find it in the most likely place (lost- been there a long time.
c. Abandoned
2. Bailments – A legitimate possession of personal property by someone who is not the owner of the property. The owner is the bailor and the non-owner in possession is called the bailee. They can be created voluntarily or involuntarily. The bailee must have actual control of the property together with intent to possess the property. Public Policy interest to encourage return to the true owner. There isn’t a clear rule because they aren’t really the owners, the court has to look at the factors, no concrete answer, unless the legislature does something. For exam look at facts and analyze factors.
3. Think about this in relation to adverse possession, especially to chattels.
D. Adverse Possession
1. Statutes are created as the answers to problems, and they apply here.
2. True owner barred from recovering possession due to SOL
3. Eventually we cut off the owner’s right and give it to the finder. They must occupy the land without the consent of the owner with an intention to remain.
4. Van Valkenburgh v. Lutz – L wants Prescriptive Easement – do not convey the title to the property in question, only the right to utilize the property for a particular purpose. They often require less strict requirements of proof than fee simple adverse possession. W wants removal of encroachments. Lutz lost because they were not hostile because they conceded they did not own the land.
5. Elements:
a. Open and Notorious – readily detectable to a true owner by being the type of occupation a true owner would make
b. Adverse, under claim of right (Hostile) – if you know you are on someone’s land, Claim of Right – written instrument
a. Mannilo v. Gorski – 15 in. didn’t know, not open and notorious encroachment if it is of small area and not clearly and self-evidently an encroachment.
i. Mistake v. Hostile
ii. Maine Doctrine – not possessing adversely if she occupied under a good faith but mistaken belief that the land is hers, but she would not have occupied if she knew the true facts.
iii. Color of title – some document that describes the land but are incorrect, defective deed, but they are usually deemed to possess the land described.
iv. Good faith – believe they are entitled
v. Objective – acts and statements appear to be claims of ownership
vi. Aggressive trespass – know it is wrong but intend to claim
c. Continuous for statutory period – must occupy the property as continuously as would a reasonable and average true owner of the property. SOL starts to run when the adverse possession begins, but if at the moment the legal owner is disabled, insane, under 18, the
die without a will, freely alienable (can sell during your lifetime). No Future interest to accompany it. If A is alive and well, the heirs have nothing. A living person has no heirs.
B. Life estate 190-197
1. Must be made in lifetime terms, not in years. To A for life. Reversion to O. Remainder, Contingent Remainder “to A for life, then to B if he survives A” (B Must survive), Vested Remainder “to A for life, then to B and his heirs” (no conditions, takers are ascertained).
2. Can be defeasible.
1. White v. Brown – Courts try to follow the grantor’s intent and sometimes rely on other factors to help resolve ambiguity. In this case, the attempt to restrain alienation was not valid.
D. Defeasible fees 206-215; 225-228
1. Fee Simple Determinable – To A for so long as or To A during or To A until. Clear durational language. If the violated, forfeiture is automatic. Is devisable, descendable and alienable. Future interest is the possibility of reverter which exists in O, the grantor.
2. Fee Simple subject to condition subsequent – To A but if X event occurs grantor reserves the right to reenter and retake. Grantor must use clear durational language. Grantor must carve out the right to reenter. Is devisable, descendable, and alienable but always subject to the condition. This estate is not automatically terminated, but it can be cut short at the grantor’s option if the stated condition occurs. This future interest is called the right of entry/power of termination.
3. Fee Simple subject to executory limitation – To A but if X event occurs, than to B. Forfeiture is automatic, but it goes to B not O. Shifting executory interest (one grantee to another), springing executory interest
Words of desire, hope, or intention are insufficient to create a defeasible fee. Policy: Courts disfavor restrictions on the use land. Cts will avoid finding it unless clear durational language is used. Absolute restraint on alienation is void. (To A so long as she never attempts to sell)
1. Mahrenholz v. County Board – a fsd comes to an automatic end upon breach of the condition but a fs subject to condition subsequent
