Property I Outline

Property Exam – Johanson – Spring 2014

Steps: 1) Work through elements; 2) Argue both sides; 3) Address policy implications

Definitions:

i. Replevin – legal remedy when someone wants to recover goods wrongfully in another’s possession

ii. Fee simple ownership – having absolute ownership to the land

iii. Accretion – gradual increase of land by natural forces. Deposits become the property of the owner of the soil on which it is deposited (can’t tell whose soil is whose) (affects land boundaries)

iv. Riparian – soil being taken from a river downstream to the land of another owner (e.g. soil taken from MN down to MO via the MS river)

v. Avulsion – Immediate loss (usually by flood, slide, etc.) à easy to tell what land was loss (usually does not affect land boundaries b/c distinguishable)

vi. Escheat – the reversion of land to the state upon death of the owner who has no will or heirs

vii. Enjoin – to legally prohibit or restrain by injunction

viii. Occupancy – the act, state, or condition of holding, possessing, or residing in or on something (taking of something that belonged to nobody)

ix. Conversion – the act of changing from one form to another; the process of being exchanged

x. Trespass to Chattel – the act of committing, without lawful justification, any act of direct physical interference with a chattel possessed by another

xi. Chattel – movable or transferrable property

xii. Injunctive Relief – a court order commanding or preventing an action

xiii. Constructive Trust – an equitable remedy that a court imposes against one who has obtained property by wrongdoing

xiv. Freehold – an estate in land held in fee simple

xv. Requisition – an authoritative, formal demand

xvi. Equitable division – used where claims on lost or mislaid property are at issue. Used when UNDIVIDED interests are equally valid. Proportioned to strength of the claim

b. General Rule. An owner of property does not lose title by losing the property. The owner’s rights persist even though the article has been lost or mislaid. Thus, as a general rule, a finder has rights superior to everyone but the true owner, with some important exceptions.

1. Armory v. Delamarie (England, 1722): A boy (P) found a jewel and carried to D’s shop for appraisal. D’s apprentice offered to give him money for the jewel, but P denied the request and asked for the jewel back. D’s apprentice gave him back the socket without the jewel. Result: Boy (finder) gets jewel back.

a. As to the value of the stone, given highest possible value of lost prop unless ∆ (who stole the stone) can provide stone and prove otherwise

i. Incentive to return stolen items

b. Q: Does a buyer in good faith have a claim against the real owner? RULE: Unless the true owner is precluded from recovery by estoppel, laches or SOL, BFPs are cut off visa-vi the true owner

c. NOTE/RULE/ARG: If the owner brings suit, the buyer can suggest joinder – buyer should sue seller too and say the one who sold buyer the jewel w/o full title should be liable

i. NOTE: Because of discovery rule, it’s strongly in the finder’s interest to make reasonable efforts to notify the owner

ii. ALSO, possession gives power to legal property rights

d. Armory rule is usually followed in PUBLIC places

i. Prior Possession Wins. Applies to both personal property and real property.

ii. Prior Possessor a Trespasser. The rule applies even to objects acquired through theft or trespass. ARG: To not apply the rule to theft or trespass would lead to an endless series of unlawful seizures and reprisals in every case where property had once passed out of the possession of the rightful owner (Anderson).

iii. What Constitutes Possession? For the finder to become a prior possessor, the finder must acquire physical control over the object and have an intent to assume dominion over it.

2. Eads v. Brazelton (Sunken Boat) (1861, Arkansas): Sunken boat in MS river. P finds it and marks the spot on trees and puts a buoy over it. D comes and finds boat (presumably w/o using P’s marks or buoy) and extracts valuable lead from it. Holding: D gets the lead. P must have actually taken the property with the intent to reduce it to possession. P marking the trees and putting a buoy over the boat did not meet this standard; they only indicated P’s desire or intention to appropriate the property.

a. RULE: The occupation or possession of property lost, abandoned, or without an owner must depend upon an actual taking of the property with the intent to reduce it to possession.

i. Ownership goes to the person who finds it, exercises control, and intends to do so

ii. Must make EFFECTUAL GUARD of property that you have expressed INTENT to possess if actual possession is not probable at time

1. To ward off other would-be finders: put boat over claim

2. POPOV: must be to the extent nature allows when actual possession is not possible (even though, possession of baseball is possible)

iii. This doctrine applicable to wild animals, underground liquid (O&G), and also water rights in western states

b. RULE: Something that is abandoned by its owner is fair for the taking once someone takes actual possession

c. Policy: Letting people who simply discover things take possession of them will not incentivize people to extract the valuable resources

i. Idea of prior appropriation re: water in arid climates

3. Fox Hypo: P is chasing a fox and it’s almost worn down but D shoots it towards the end of the chase. Result: D gets the fox. D-ARG: But for me, would P have killed the fox? There’s certainly no guarantee, he could have easily ran into a foxhole and escaped. P-ARG: But I’m the one who alerted you to the fox’s presence!

4. Fox Hypo 2: Same story but P shoots fox and is chasing it and then D comes and snatches it while it’s still alive. Result: P gets fox because “but for” D’s intervention, P’s possession was inevitable.

iv. Constructive Possession. Not actual possession, but law treats him as if he were in possession. (Strongly relates to PRIVATE prop and when item is unknown to landowner)

a. South Staffordshire Water Co. (Rings in Mud) (England, 1896): P (fee simple owner) hired D to clean out pool on his land and D found two gold rings in mud. True owner not found, who gets them? Result: P (not finder) gets the rings. The possession of land carries with it general possession of everything which is attached to or under that land, and, in the absence of a better title elsewhere, the right to possess it also.

i. RULE: When a person has possession of house or land, with a manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner or by a stranger, the presumption is that the possession of that thing is in the owner.

1. Owned land of LOCUS IN QUO (place where alleged event occurred)

ii. D-ARG: “But for” us the P wouldn’t have found the golden rings

iii. P-ARG: This is different than Bridges b/c there the store was open to the public and in this case it wasn’t – public access v. private property. P-ARG: I was paying you to do this! You were my agent (acting on behalf of P)

iv. Unlike BRIDGES, this was “attached” to the land/found under the land

b. British Airways Case: Finder given right to bracelet found in Admiral’s Club. ARG: BA doesn’t want to go too far b/c they don’t want to be liable for stealing in the cloakroom. Issue: How do they seek dominion over lost items w/o being too liable for passengers’ property?

i. Airway had no intention to exercise control over the lounge b/c the area of control was given to class members/users

a. Finder v. Owner of Premises. Often both finder and owner of the premises will claim an object. If the owner of the premises owns the object they get it. If not, there are several outcomes:

a. Finder is Employee. If finder is an employee, some cases hold that the employee cannot keep the object. ARG: The employee is “acting for” the employer.

i. Ex. Hotel maids are required to return lost objects to the hotel so it is more likely that the object will be returned to its owner. – Good Policy-ARG

b. Finder is on premises for a limited purpose. It may be said that the