Property Outline
Possession and Ownership
Who is the Owner?
Generally
Without P and O there is no private property
Property is not things but the laws which establish the rights to possess and own them
Sometimes possession shows ownership/protecting possession is protecting ownership
Becoming an owner
Original title (Capture, Discovery and Occupation, Finding, Adverse Possession)
Derivative title (Gift, Purchase, Inheritance)
Possession defined:
Dominion and Control with the Intent to Control
Vocabulary
Real Property: land and all that is permanently attached, or growing (focus of the course)
Personal Property: anything that is not real property, can be tangible (paper) and intangible (stocks)
Certiorari: appellate review from
Ferae Naturae: unowned in natural state wild
Ratione Soli: reason of the land/soil
Hostem humani generic: Hostility to humanity generally
De mortuis nil nisi bonum: Don’t speak ill of the dead
Sub jove frigido: in bad weather (under a cold sun)
Tempora mantantur: Times change
Trespass and trespass on the case: Form of action, direct and indirect injury.
Heir: One who will receive property of a particular person.
Capture (Pierson v. Post p17, fox)
How to Capture
If a wild animal is captured (in hand) then you are the owner.
You must have control and the intent to control (possession), or
Mortal wounding with pursuit (constructive possession)
Pursuit here gives notice
Trap, ensnare, or contain. (Note 2 p21 Whale case harpoon is notice)
Other factors
Who owns the land the animal was on?
Was one or both a wrongdoer? (We don’t want to reward wrong doers)
Was the animal wild or domestic?
How to determine whither wild.
Species
Notice (collar, smell for natural gas)
Custom of Society
Affect of the Rule
If Capture is a means for ownership there is a great incentive to capture everything now. This leads to overcapture.
Ct. in Post says that the rule provides peace and certainty. (question whether that is true)
Authority for the decision in Post, Ancient Philosophers
Hierarchy of Authority
Constitutions (Fed and State)
Statutes (fed., state, and sister states)(be selective in which sister state, consider which states are respected by yours)
Case Law (State and sister states)
Old English Common Law
Philosophers
Custom
Alternative Claims for violation of rights to wild animals (not interference with ownership)
Keeble v. Hickeringill p22
You can claim interference with right to free use property
You can claim interference with a legitimate economic activity
Trespass v. Trespass on the Case
Trespass
Defendant acted
Causing direct injury to
Plaintiff’s person or property in the plaintiff’s possession
On the Case
You are missing an element
Indirect injury
Not the property in the possession of the P
How to lose possession and ownership
Escape (confinement integrity in Gas pools)
Of its own volition
Returns to its natural habitat (elephant in the parking lot)
No intention of returning (bees return)
No marks or brands
Analogy of Wild Animals and Natural Gas (Texas Am. v. Fidelity Bank p23, natural gas case)
Same-gas can come and go, without regard to human boundaries. Wild makes unowned, capture makes owned in both cases.
Different-animal is alive. Animals have a will. Gas and oil don’t have a will and outside forces. As a person can extract gas and other gas can take its place. Oil and gas is non reproducing natural resource animals do (is that relevant?).
Discovery and Occupation (Johnson v. M’Intosh p2, Indian case)
The doctrine
Discoverer can exclude all other European countries
Discoverer has exclusive rights of preemption (preemption doctrine-throw out the Indians)
Discoverer can exercise the right of preemption by:
Purchase/treaty (with the Indians) or
Conquest (of the Indians)
This gives power of title to the conqueror (US)
US got the power of title derivatively by beating England who did the actual conquering.
The rights of the Indians (with respect to the land) cannot be inhibited by the state only the fed. (thus there are casinos on the Indian reservations in states which don’t allow gambling)
Indians had a right of possession of some of the lands but they could not sell or transfer the property be cause the title was the US govt’s.
Finding (Armory v. Delamire p30, Hannah v. Peel p 32)
Common Law Maxims “possession is the root of title” “possession is 9/10ths of the law” the law protects possession
“finder keepers losers weepers” not really adequate summary.
Things that can be important in distinguishing cases in finders law
object f
ither has complete control. However, is treated as bailment. Because bank is acting like a bailee.
Mere custody
(exception) employment is the vicarious (it is a bailment, but not treated like a bailment) the employer is still in control the employee only has mere custody. When an employee steals the custody becomes possession rather than custody. Employers are responsible under respondeat superior. The bailee is responsible for their conduct
Sale
Cows not for the same cows but similar cows
Farm is land not personal property.
Bailee’s rights in Bailed goods
right to possession
Bailee can sue the another, has rights to possess. Right to possess will be protected. trespass to chattel, replevin (object back) or trover (pay fair market value). The museum holds the money for the art collector minus the right of possession for the value. In a bailment K include the type of action you want the bailee to take if the item is lost.
Right of suit is the bailee’s not the right of the owner.
If against the true owner (owner take painting from the museum which he lent the painting)
Was for fixed term or at will?
If at will owner is ok
If for fixed term owner has no right to interfere, and can be sued.
right to use bailed item (use and possession rights are different)
Express use (TV is not clear should tell)(warehouse implies no use rights)
Implied use (use the car)
Incidental use (cow milking)
Duties of the Bailee
Duty to adhere to the terms of the Bailment
If Bailee breachs the bailment terms Bailee is strictly liable for the damage.
If part of the bailment is insurance and if bailee doesn’t insure bailee is liable for any damage.
Duty of “Due” Care (negligence issue, not insurer unless outside the terms of the bailment, as above)
Sole benefit is to the bailor standard is Gross Neg.
Sole benefit is to the bailee standard is Slight Neg.
Mutual benefit standard is Ordinary Neg.
