Property I Outline

Possession & Ownership

1) Property rights are based on possession
· Pierson v. Post (fox hunter)
· Issue: What acts amount to occupancy, applied to acquiring right to wild animals?
Rule: One must trap or corner a wild animal to a point that escape is not possible. Once an animal is mortally wounded, the person who has wounded it should immediately continue to pursue the animal in order to maintain possession.
2) North Dakota provides for property rights in the century code
a) In North Dakota all lost and mislaid property is treated as lost property
3) Rule: There are 4 types of lost property:
a) Lost: The true owner unintentionally parted possession of the property and does not know were it is.
General Rule: Finder of the property is the rightful possessor and bailee of the property, against all others except the TO.
Exception: If the finder is a trespasser, the owner of the premises is owner
Exception: If the finder is a thief and the true owner is a legitimate finder, the court is unlikely to find for the thief
b) Mislaid: The person intentionally parted possession with the property and subsequently forgot where they had left it.
General Rule: The owner of the premises has right to possession of the property, the finder has no rights with regard to the property; the reason for this is that it more reasonably facilitates the joining of the TO of the property with that property, as they know more closely where to find the possessor.
c) Abandoned: Voluntarily parted with, and has no intention of regaining ownership thereof.
General Rule: Finder gets the rights to that property, has rights against the world (including the previous true owner)
Treasure Trove: Consists of coins or currency with element of antiquity, must have been hidden for a length of time that the owner is probably dead or undiscoverable. Belongs to the finder against all persons but the true owner.

4) Common law rule: The finder of property becomes the bailee of that property for all but abandoned
a) In ND the finder of property has the responsibility to keep the property safe and make reasonable attempts to find the TO of the property
i) If you do find the TO they must pay a reasonable reward
ii) Finder of lost property has no responsibility to take possession
5) A Bona Fide Purchaser, one who purchases property in good faith and for full value usually has rights that trump those of the TO

Lost Property Cases

Benjamin v. Lindner Aviation 1995
· Π found money in a plane, so says he is the rightful owner.
· The ct considered the money to be mislaid by the TO, b/c of the location of where it was hidden (so it was not lost) and the probability that no one would abandon that sum of money (so it was not abandoned).
· The premises where the money was found is considered to be the plane b/c if the TO did try to find the money, that is where they would look.
1. If the money would have been considered abandoned, Π would have been entitled to the money.

Johnson v. McIntosh1823
· Two different ideas of how to gain title to land
o One party got it from the federal gov’t
o One party got it directly from the tribe that inhabited the land
· Positive (human) law v. Natural Law – this case was decided on by positive law
o (per the rules) Persons with a different religion and view of the economy are different and less important, and these ‘inferior’ persons get the benefit b/c they get civilization and Christianity in exchange for unlimited independence.
o In order to stop war between people looking for land, there needed to be a law;
§Discovery gave title to the gov’t by whose subjects, or by whose authority, it was made, against all European gov’ts, which title might be consummated by possession.
§All imperial nations acknowledged this.
§This gives you the sole right to acquire the soil from the natives, and establishing settlements upon it.
§b/c the ‘buyer’ (European in possession) can be the only one, the price of land goes down
§not only is there only one buyer, that buyer, if the Native Americans would not sell it, then they can take it by force.
o The original inhabitants (Native Americans) rights were not disregarded, but impaired. Their possession of land does not amount to ownership.
o Popes essentially gave permission for Christian people who discovered property that was inhabited by non-Christian people for them to have the rights to the title of it; possession of land if you are Christian is full ownership, if you were not Christian, you had the right to occupancy but not ownership.
The court made Indians t