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Property I
University of Oklahoma College of Law
Palomar, Joyce

Property Palomar Spring 2012
Possessing & Owning real property
overview/ Rights
A.     What is Property?
a.        “Object and legal relations between persons with respect to objects such that owners of property interest can exclude others from certain activities or permit others to engage in those activities and secure the assistance of the law in carrying out their decisions”
B.     Finders of Property
Doctrine of Law
Rightful Owner* v. Thief
Discourage Theft
Thief gains no title from the thievery
Thief* v. Taker
Maintain Peace
Thief’s possession is good against all but rightful owner.
Trespasser v. Taker
Maintain Peace
One in pursuit v. Interceptor*
Clear rule promotes certainty and order
Must have actual possession to gain a property right sufficient to bring claim. (CF Pierson v. Post)
Trespasser in Possession v. Landowner*
Discourage Trespass to promote order
Landowners have constructive possession of anything on their land.
Landowner* v. Possessor
Discourage Trespass to promote order
Landowners have constructive possession of anything on their land, while it’s on their land.
One in Pursuit* (whose pursuit interfered with by others) v. Interceptor
Discourage Illegal Acts in Pursuit of property
Actor who has taken significant steps to achieve possession of abandoned prop. & Interrupted by unlawful acts of others has legally cognizable pre-possessory interest (CF Barry Bonds baseball case)
Case: Gissel v. State
Gissel stole rice from land owned by the US forestry. The state took the rice and sold it. The Gissels sued for the amount of rice owned by U.S. forestry held that as the prior possessor, the Gissels have a superior right against the state and entitled to recover.
a.      Thieves
·         One who has acquired the possession of property, whether by finding, bailment, or by mere tort, has a right to retain that possession as against a mere wrongdoer who is a stranger to the property. (Yes a thief may acquire rights by virtue of possession)
·         Policy- prevents endless series of unlawful seizures and reprisals
b.      Wild Animals
·         Occupancy or possession necessary prerequisite to obtaining a property interest in animals”
o    Majority Rule (Pierson)- Required “actual capture” to constitute occupancy
·         Fast v. Loose Fish- Fast belong to party fast to it (alive or dead). Loose fish fair game for whoever catches it first
c.       Intellectual Property
                                                               i.      Common Law- there is not property interest in an idea*
1.       Policy- to maximize economic welfare for public/society
                                                             ii.      Contract Law
1.       Individuals may bargain over an trading service/idea (some courts require novelty others do not)
                                                           iii.      Patent
1.       Protects a process or a product
2.       Needs to be a novel, non-obvious, & useful idea
                                                           iv.      Trademark
1.       Burberry Scarf
a.       Can copy the style but cannot try and pass it off as Burberry
Types of found property
·         Courts will look at
(1) Presumed intent of the original owner (reflected by categories)
(2) Identity of the competing claimants
(3) Location where the item is found
·         Relativity of Title- precept of American property that title is relative, not absolute
1.      Abandoned
                                                   i.      Definition: Thrown away or possession intentionally/voluntarily forsaken.
                                                 ii.      Rule: Becomes property of first occupant/finder*.
2.      Lost­
                                                   i.      Definition: Owner unintentionally/involuntarily parted with it.
                                                 ii.      Rule: Finder has rights against the entire world except rightful owner.
3.      Mislaid
                                                   i.      Definition: Intentionally put in a certain place and later forgotten.
                                                    ii.   Rule: (1) Finder acquires no ownership rights
    (2) If found on another’s property he has no right to its possession.
    (3) Owner or occupant of the premises where the property is discovered has the rights       against all but true owner.
4.      Treasure Trove
                                                   i.      Definition: Gold/ silver coin/plate/bullion whose owner is unknown found concealed in the earth or in a house but not lying on the ground.
                                                 ii.      Rule: Title belongs to the finder against the entire world except the true owner.
·         Policy Rationale in favoring true owner for Lost/Mislaid:
o    (1) Discourage theft
o    (2) Seeks to reward owners effort in acquiring; not finder’s minimal effort
Doctrine of Law
Mislaid Property:
Finder v. Location Owner
Getting Items back to rightful owner by leaving where owner most likely to return
Owner Keeps
Lost Item:
Finder v. Location Owner
Getting Items back to rightful owner by letting finder feel safe to report finds
Finder Keeps it
·         Examples:
o    Waiter discovers diamond ring. Turns into manager. If rightful owner does not claim?
o    Tenant of housing lease finds $20,000 in house? Lost- Tenant (finder) Mislaid- possessor (tenant). Person who left the property would come back to this house, not a corporate office.
Law of Finders- If the finder goes public with the find and the true owner does not claim the item within a reasonable period of time, typically finder is awarded title to the found property (balancing economic risk w/ reward)
Case: Terry v. A.D. Lock
P’s moving ceiling tiles when they found cardboard box with almost $40,000. Court held the property was mislaid and thus belonged to the owner of the premises.
A finder of a thing lost is a Bailee with rights and obligations of a Bailee for hire:
                (1) Notify owner if possible (2) Compensation for service (3) Sell when appropriate
Other Notes:
1. Wrongful treasure hunt- common law has trespass to prevent this
2. Does is matter were the finding occurs?
Subsequent cases- there is no public private distinction in finding or property.
3. Claims of the country from which goods were taken?
Criticizes law of finders as destroying valuable architectural components by removing them from the ground. Said that instead of this countries should a

, who is under a legal disability when the cause of action accrues, can bring an action within 2 years after the disability is removed; Or may bring under regular SOL, (whichever is longer)
                                                               i.      Any subsequent disabilities do not apply
                                                             ii.      Ex: 1990- owner is 2 years old; A goes into AP of blackacre; 2000- owner goes insane
                                                        -When can A, AP blackacre? (OK rules)
                                                        -2008- 2 years after A turns 18 and loses disability (ignore insanity b/c happened after)
b.       There is an outside maximum for some (i.e. MO – 21 years, but OK has none)
c.        Only owner is under disability, not any subsequent purchasers or heirs
12 OK STAT § 95
Within 2 years:  An action for trespass upon real property (trover); an action for taking, detaining, or injuring personal property, including actions for the specific recovery of personal property (replevin); an action for injury to the rights of another (conversion), in an action for fraud in such cases shall not be deemed to have accrued until the discovery of the fraud.
Not return of property
Damages such as forcing them to buy the property from you
Present Market Value
For the return of the property.
Tort for damages to one’s right.
*all of these are generally measured based on the reasonable owner given the location nature and character of land
Case: Alaska Ntl Bank v. Linck
Original owned deeded property and then sold to the Linck’s. Lincks only claim to property was adverse possession. Court held they did adversely possess the land b/c (1) multiple visits and working on the land over the period was continuous (2)
Case: Howard v. Kunto
Issue about continuous use of the land. Court looked at whether there was Privity between purchasers. Held that where several successive purchasers received record title to tract under the mistaken belief they were receiving title to a different tract, Privity of estate sufficient for tacking of time for AP
Case: Gilardi v. Hallam
P improved land mistakenly believing it was his. Court said that mistaken belief is adverse unless it is established by substantial evidence that he recognized a potential claim of the record owner.
Case: Naftzager v. American Society
Naftzager bought coins from a theif who had stolen them from museum. The thief had stolen 30 years ago. Court held (1) P did not acquire valid title even as innocent purchaser b/c thief cannot transfer valid title and (2) He could not AP coins b/c claim didn’t arise until they discovered who was in possession of the property