Property
I. Personal Property
A. Possession
1. physical control and intent to exclude others
2. or conclusion by a court that person is in possession, ought to be treated as possessor
3. Distinguished from ownership – owner has “title,” usually proved by document signed by previous owner or 1st possessor transferring title to present owner.
4. Constructive Possession – law treats person as possessor though he is not, or is unaware that he is.
B. Wild Animals
1. Possession – must deprive the animal of its natural liberty
a. Corporeal possession
i. Capture must be virtually complete, slight possibility of escape allowed
ii. Must use reasonable precaution against escape
b. Mortal wounding
i. Mere pursuit is not enough – Pierson v Post.
ii. Subject to trade custom – Ghen v Rich
2. Forms of action for getting property back
a. Trespass on case – indirect interference with property
b. Trover – some one else has “found” your property, action for damages
c. Trespass – direct interference with property
d. Replevin – action for getting back what’s been taken
3. Trespasser’s title – inferior to that of the owner of the land
4. Interference by non-competitor – not allowed – “malicious interference is actionable,” Keeble v Hickeringill
5. Escape
a. Finder’s ownership is extinguished when wild animal escapes
b. If animal is domestic or not native, then ownership is not extinguished
c. If animal has marking, ownership is not extinguished
6. Capture Rule for Natural Resources – rule varies depending on appropriate policy decisions
a. Water – only a right to reasonable use (except if it’s a desert, then you have a prior appropriation rule to encourage water use)
b. Solid Minerals – no capture rule, they belong to owner of the land
c. Liquid and Gaseous Minerals – original rule was capture, let’s get this stuff out. Now, there are limits as to how much each party can take (assuming some oil in one plot of land and some in the adjoining plot)
C. Finder’s Rights
1. finder has the right to keep the property against all but the rightful owner
a. Armorie v Delamirie – finder hands jewel over to jeweler for appraisal, jeweler refuses to return. Finder has action in trover or replevin.
b. Relativity of title – if finder subsequently loses item, his title remains superior to the next finder.
2. Unconscious Ownership
a. A person may unconsciously possess an item if it is located on his property
b. Applies to items underneath the surface, but often not to “loose” items on the surface. Finders can often keep such items. Hannah v Peel (but must have consent to be on the land)
c. Finder is employee – some courts rule employee is “acting for” employer – doesn’t get to keep the item.
d. Object found in private home – object goes to owner if he is in “possession” o
Goldsmith can go after the finder in the TO’s stead.
E. Gifts
1. Definition: voluntary transfers w/o any consideration. Donor must 1) intend to make a gift, and 2) deliver the gift to the donee, who must 3) accept the gift.
a. inter-vivos – a gift made during the donors life when the donor is not under any threat of impending death
i. once made, it is irrevocable. If not, it violates the Statute of Wills. Ways to get around this:
(a) testamentary (make a will)
(b) gifts causa mortis
(c) make a present irrevocable grant of a future interest – Gruen v Gruen – retain for yourself a life interest, future interest doesn’t become possessory until you die.
(d) Make a trotten trust – a revocable trust of personal property that doesn’t violate SOW
b. Causa mortis – made in contemplation of immediately approaching death – revoked if donor does not die from the expected cause, or from another cause soon after.
i. Contemplation of immediately approaching death
(a) Must be reasonable apprehension of death (not I’m going to Harold’s)
(b) Donor must die of contemplated peril (or perhaps soon after of something different)
2 conditions revoke gift
