ANTOGNINI
PROPERTY
SPRING 2016
WHAT IS PROPERTY LAW?
Who Owns it?
Law of Possession and Capture
Quick Law
Lost
Circumstances: Owner Accidentally and casually parted with possession and does not know where to find the property.
i.e. O does not notice that his watch has slipped of his wrist and is in the street.
Finders Rights: Finder is entitled to possession against all the world except the true owner. (exceptions: if finder is a trespasser, employee, guest, or licensee, or if property is found in a highly private locus or buried)
Mislaid
Circumstance: Owner intentionally placed property in the spot where it is found and thereafter forgot it.
Finders Rights: Owner of premises entitled to possession against all the world except the true owner because true owner might return to retrieve it.
Abandoned
Circumstances: Owner voluntarily and intentionally relinquished ownership with intent to give up both title and possession.
Finder’s rights: Finder obtains both possession and title if he exercises control over the property with intent to assert ownership.
How do we determine ownership?
First in Time Rule: The most fundamental rule for determining ownership is that the first person to take possession of a thing owns it. This is also known as the rule of capture, emphasizes important social polices relating to rewarding labor and protecting investment in resources.
Rule of Capture
Manifests an unequivocal intention of appropriating the animal
Has deprived the animal of his natural liberty; and
Brought the animal within the hunter’s certain control.
Three factual scenarios constitute possession
Actual physical possession—holding the animal dead or alive;
Mortal wounding by one not abandoning pursuit; or
Capture with nets or toils “or otherwise intercepting them in such a manner as to deprive them of their natural liberty, and render escape impossible.”
Should we rely on custom?
Limited application
Long duration
Necessity
Pierson v. Post: Property in Wild animals is acquired only by occupancy/capture, and pursuit alone does not constitute occupancy.
Court rules that Post did not reduce it (fox) to possession. That is to say, the second element of possession [actual control] is not met
Rationale
Competition—This rule fosters competition, resulting in more animals being caught, thus promoting effective means of capture.
Ease of administration—Promotes certainty and efficient administration in a situation where the stakes are not high and worth a judiciary to consider.
Incentives to kill more foxes
Majority—Incentivize to develop hunting techniques and technology.
Minority—May only incentivize pursuit.
Today:
Not as simple, we deal with over capture and endangered species. More of an incentive to promote conservation. We now have fish and wildlife agencies that regulate this.
Fox is considered farae naturae (“wild by nature”)
What about Labor Desert Theory? [Post did all the work, but lost the case]
Policy arguments prevail:
in capture, certainty is necessary (either you’ve caught the fox or you haven’t)
But what about the other side of the policy argument [i.e. that rewarding meddlers would discourage hunting foxes] – Dissent addresses this
Mere pursuit is not enough to constitute possession, must be corporal possession.
Occupancy: period of time during which a party possesses and uses real property.
Trespass: Unlawful interference with, or damage to, the real or personal property of another.
Wounded or trapped animals
If an animal has been morally wounded or trapped, it is so that capture is virtually certain.
Unfair Competition: we do not want this hunting to become monopolized
Ratione Soli – on one’s own soil
If a resource happens to be capture by a trespasser on another’s private property, the resource belongs to the owner of the private property
We don’t want to award an illegality
Ghen v. Rich
When might we apply custom
Limited application (need to have notice)
Long duration (custom needs to be in place for a while)
Necessity (is there anything else that needs to be done to secure the property?)
Interference by non competitor
If a person is in the process of entrapping animals and a competitor who also wants to capture the animals can interfere with the other person’s activity and try to capture the animals
Popov v. Hayashi: Barry Bonds Homerun ball, who is the rightful owner? Equitable division of the ball.
Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property sufficient to support a claim of conversion.
Arguments for Popov:
Mortal wounding of the ball, stopped its trajectory.
Glove as his tool or net
Certain control, and then illegal acts intervened, forcing him to lose the ball.
“You don’t need to walk away with the item, but you made enough significant steps toward gaining possession.
Is it good to have a rule that incentivizes these actions? Violence at games..
Hold him to the standard of an Amateur catching the ball
We want to increase certainty in law and limit litigation.
Arguments for Hayashi
Customs—Is it more customary to award the person the ball who gets it this way, Necessity, Duration.
Constructive Possession—acquisition by possession does not require continual possession, but rather clear marking of ownership without abandonmen
entitled to a reasonable use of the water, and downstream owners cannot enjoin the owner or recover damages unless they are not receiving enough water for their needs or the upstream owner is substantially interfering with their needs. Must be harmed to enjoin someone else’s use.
Domestic Use preferred.
Commercial use not permitted unless there is enough water for the domestic needs of all.
It is economically more beneficial if a right passes to the user who values it the most.
Note: The rule of capture is the default common law rule that fills in the gaps of Modern Law.
Law of Finders summary
Pierson v. Postà Prior ownership nonexistent, wild animal
GhenàRule of Custom with whales
Popovà Get the ball and hold the damn thing.
Subsequent Possession
Law of Finders
Facts to analyze
Prior negotiations/ Consent to use
Did final property increase in value dur to other party
Value
Notice – did they know it was someone elses?
Labor – when the finder is the one that puts in labor they gain some ownership
purpose
Modified by statute in many states
Common law –
(1) prior possessor of the item always defeats the subsequent possessor (assuming neither the prior or current possessor are rightful owner, rights as compared to the world) AND
Why? To prevent right from might, person has right to reasonable expectation that she wont be divested by possession of item by anyone other than the rightful owner
(2) the finder defeats all except the items rightful owner
Purpose is to facilitate item’s return to rightful owner
A Finder has rights superior to everyone but the true owner of the chattel.
Armory v. Delamirie
Facts—Chimney sweep case. Armory found a jewel and took the jewel to Delamirie, a goldsmith, for appraisal. Apprentice removed the stones and Del. refused to return them to the chimney sweep.
Rule: A finder of a chattel has title superior to all but the rightful owner upon which he may maintain an action at law or in equity. Prior possession will prevail.
Where the true owner has abandoned his property the finder is entitled to keep it.
