Property – Karkkainen – Spring 2016
Capture
Wild Animals
Mere pursuit is NOT enough à need actual physical possession (e.g., Pierson v. Post)
Exceptions:
Mortal wound à e.g., Dapson v. Daly where P fired a shot and pursued but was not the mortal shot
Animal deprives of natural liberty
E.g., Liesner v. Wanie à mortally wounded wolf, escape was improbably if not impossible
E.g., State v. Shaw à fish in a net are considered “under control” and deprived of liberty – also emphasizes the owners of the nets intent not to abandon
Ghen v. Rich (whale case) à “If the fisherman does all that is possible to do make the animal his own, that would seem to be sufficient.”
Notes the local custom usage à why disrupt a system that is working well
Natural Resources
Ophir Silver Mining Co. v. Carpenter à debate over what counts as “first in time” regarding water from river (more about prior appropriation water law)
Finding Property
Abandoned
Previous owner intentionally disclaims any further ownership
Finder becomes “absolute owner” à no duty to return item
Haslem v. Lockwood (manure in streets case)
“If he leaves the property at the place where it was discovered and does nothing to enhance its value or change is unquestionably gone.”
Here, emphasis on the betterment of the manure à increased value and did NOT relinquish possession by unreasonable delay in removal
Lost
True owner parts with it involuntarily
Finder = qualified title
The owner still holds superior title but otherwise title is “good against the rest of the world”
Note à trespasser has NO right to lost property
Bridges v. Hawkesworth
P found bank notes on the floor in a shop and got to keep them after unsuccessfully finding true owner à notes were never under shopkeeper’s custody (no right)
Mislaid
Intentionally placed, then forgotten
Finder = qualified title
Owner still holds superior title but otherwise is “good against the rest of the world”
Franks v. Pritchett (folded bills in drawer in hotel room)
Court says it belongs to the owner of the premises, i.e., the hotel owner but dissent argues that no one would just “forget” that much money à it is lost so should go to finder
Lost and Mislaid
Finder doesn’t have to take possession but if you do à reasonable duty to return (especially if known or reasonably discoverable), otherwise = theft in some jurisdictions
Embedded Property = property of landowner
Exception = “treasure trove”
Intentionally concealed property (money) not recovered by one presumed dead à turned over to state
More on First Possession
From Government
Homestead Act à Stewart v. Penny
“Good faith” required for establishing Homestead
Should be applied liberally in favor of entryman
Marincovich v. Trabochia à created union for snag fishing and claimed exclusive rights to union members
However à law recognizes equal right of public access to navigable waters and the state owns the fish
These types of fishing rights have to be established through a proper legal mechanism
Even with permit, this does NOT grant exclusive rights
Example of bottom-up property regime à ownership and management arrangement developed around a resource that is better used collectively rather than divided into individual shares for people to use separately
Creation
Copyright = type of “first in time” à acquisition through creation
Exclusive right of the creator of a work of expression to its use and distribution
Forward v. Thorogood à P encouraged a band to make music and then wanted title in the music but P NEVER employed the band and made NO contribution to the work which means he has NO property rights in the music
Owning Land – Rights and Remedies
Trespass
State v. Corbin à permission/lack of to hunt on unmarked land
Largely regaled by statute state to state à e.g., some states require affirmative consent, some do not
General principles
Penal statutes should be construed narrowly
Specific provisions prevail over general
“We cannot supply what the legislature overlooks”
Proctor v. Huntington (Ds accidentally built house on part of P’s property based on mutual misrepresentation)
Traditional rule is that a landowner had absolute right to eject trespassers, BUT in cases like this one that could lead to grossly inefficient/unfair results, the courts have softened the rule
Substitute a liability rule (money damages instead of injunction)
Arnold test for withholding a mandatory injunction:
Encroacher didn’t take calculated risk or act in bad faith, or act negligently
Damage to landowner = slight and benefit of removal equally small
No limitation on property’s future use
Impractical to move structure as built
Enormous disparity in resulting hardships
Donovan v. Grand Victoria Casino (card counter was banned from the casino property as a whole)
Issue
e natural flow to the extent it impairs the riparian rights of others
In times of shortage, all users may need to cut back
Prior Appropriation
Anyone can appropriate unappropriated water
Some rights have priority (seniority) over others based on strict first-in-time principle
Limited to beneficial use
Doesn’t depend on reasonableness or effect on others
Rights are quantified (e.g., acres – feet/ year)
During shortages, juniors have to cut back
Rights are NOT tied to the land
However, in some areas where land is worthless without water, the rights are often conveyed along with the land
Groundwater Rules
Absolute dominion rule à minority rule in U.S.
First-in-time rule
No place of use limit, no quantitative limit, no reasonable use limitation
Vs. reasonable use rule à majority rule
Can extract from land provided its reasonable in light of all facts and circumstances
Accretion, Avulsion, and Use of Water’s Surface
Accretion à gradual change in shoreline by addition of material deposited by water
Reliction à gradual withdrawal of water due to lowering surface level (exposes more riparian land)
Avulsion à sudden loss or addition to land by the action of water
Rules:
If riparian land is added (accretion/reliction), added land belongs to riparian land owner
If land is added/lost by avulsion (sudden), then the land boundaries remain constant (burden on party claiming avulsion) Edit Preview
E.g., Babel v. Schmidt à debate over “Island #5”
Ownership of Lake/River Beds and Surface Use
If navigable à state owns the river/lake bed
If non-navigable à riparian landowners own the submerged land that forms the bed (e.g., wedge shaped parcels out to center of lake)
Common Law Rule
Owner of a part of lake bed has right to exclusive use and control of the waters above that property
Problems:
Difficult to enforce
Invites construction of barriers
Does NOT promote recreational use and enjoyment
