PROPERTY
KARKKAINEN
SPRING 2015
ACQURING PROPERTY
A. Acquisition by Capture
1. First-in-time rule: whoever is prior in time wins, i.e., the first to capture resources is entitled to them.
1) Pro: the system can operate without any governmental involvement, and they do align with an elementary, popular sense of fairness.
2) Con: it gives citizens an inventive to grab as much of the resources as they can, even if they do not really need it.
2. Ferae Naturae/wild animal
1) Mere pursuit does not create a property interest; actual physical seizure is required.
Case
Pierson v. Post (NY 1805)
Facts
Plaintiff hunter was out with his hounds chasing a wild fox when defendant interceptor, knowing the fox was being chased, shot and killed it.
Rule
Mere pursuit does not create a property interest; actual physical seizure is required, except possibly where the pursuer has fired the mortal shot, or the animal is deprived of its natural liberty.
Holding
Found for the defendant.
Dissent
It is better to ask contemporary hunters, i.e., rely on customs. It will help to preserve incentives for people to hunt.
Policy
Interests of certainty, predictability, and administrability call for a clear bright-line rule to minimize disputes. If mere pursuit is enough to establish possession, what happens if multiple parties are pursing the animal at the same time? Just how much pursuit is needed?
2) But if mortally wounded or trapped such that capture is virtually certain, that counts as capture.
Case
Liesner v. Wanie (WI 1994)
Facts
Wanie hunted & (allegedly mortally) wounded a wolf. Liesner found the wounded wolf, finished it off with a close-range shot, and carried it away.
Rule
The instant a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another’s intervening and killing it. (Distinguish the “ancient civil law rule” in which actual physical possession was required.)
Holding
Found for the plaintiff.
3) But then again maybe the law does require actual physical possession.
Case
Dapson v. Daly (MA 1926)
Facts
Both the plaintiff and defendant were hunting deer. Plaintiff shot the deer, defendant also fired a shot and immediately killed the deer, and the defendant carried it away.
Rule
Huntsman acquires no title to a wild animal by pursuit alone, even though there is wounding, unless the animal is followed up and reduced to occupation, that is, to actual possession.
Holding
Found for the defendant.
4) Functionally under control: to trap a wild animal, the animal must be confined in an enclosure but it is not necessary that there be absolutely no possibility of escape as long as it’s functionally under the trapper’s control.
Case
State v. Shaw (OH 1902)
Facts
Shaw went offshore into Lake Erie in a
Fair competition is acceptable and even desirable, but that it is wrongful to intentionally disrupt another person’s business activity, whether or not done while conducting a competing enterprise.
B. Acquisition by Finding
1. Lost property: property that the owner has involuntarily parted with through neglect, carelessness, or inadvertence and of whose whereabouts the owner has no knowledge.
1) Finder of lost property has right or interest enabling him to keep it against all the word but the rightful owner.
Case
Bridges v. Hawkerworth (QB 1851)
Facts
Plaintiff found a parcel containing banknotes on the floor of a shop he was visiting on business; plaintiff entrusted the banknotes to the shopkeeper, who advertised but failed to locate the true owner. After 3 years, plaintiff asked for return of the notes, shopkeeper refused; plaintiff (the finder) sues to recover the notes.
Rule
Finder’s right is superior to the shopkeeper’s right.
Holding
Found for the plaintiff.
2) Duty of finder
a) The finder of lost property has no duty to take possession of it, but if she does, she assumes a duty to make reasonable efforts to locate the true owner.
b) Failure to return a lost or mislaid item to a true owner who is known or reasonably discoverable is theft.
