POSSESSION
First Possession:
Acquisition by Capture
First-in-Time Principle: First to discover it owned it.
· Done to preserve personal property.
· Forms basis of acquisition
· Start with question: Who got it first?
o Court focuses on activities of interloper
§ Possible exceptions: malicious interference; illegal interference.
INTENT: to possess and control.
Pierson v. Post: fox-chasing. Expressed Occupancy = actually having it.
A. Rule: First to express occupancy claims ownership of wild animals
a. Occupancy: act, state, condition of holding, possessing, residing in something.
i. Mortal wounding so capture is almost certain can = possession.
b. Possible exceptions: malicious interference, illegal interference (both focus on the labor of the interloper, not the pursuer); possibly constructive possession.
B. Natural Law v. Custom = basis of common law.
a. Majority: natural law à looks at Roman law. Shows rule stated above
b. Dissent: custom of NY hunting community allows pursuer to vest interest in wild animal.
C. Efficient Use of resources (dominant theme of property law) à will this rule lead to an efficient or inefficient use or property?
a. Majority: efficient. People will get really good at hunting, will invest more in technology, train more to get better à more foxes are dead.
b. Dissent: people will be discouraged from hunting.
D. Majority creates a crystal-clear rule instead of a muddled rule à less disputes.
a. Minority: muddled rule à “reasonable prospect of successful capture” = case-by-case.
i. Pretty inapplicable – difficult to tell when prospect of capture becomes reasonable.
Ghen v. Rich: When custom can be used as legal doctrine à specifics of the whaling industry.
A. Rule: Custom controls when it is,
a. Well known
b. Customary
c. And uniform
d. Within a specific profession
B. Why does Custom control here but not in Pierson?
a. Efficient use of resources: necessary to the existence of the whaling industry (no one would whale if people could snag dead whales in the water legally) à no custom, no industry.
C. Custom today: difficult to cite. Intensely local.
a. Posner: use only when local custom aligns with a larger one, national benefit (good for Econ.)
Escapees and Domesticated Animals:
· Wild animal escapes: un-owned, belongs to next first possessor.
· animus revertendi: animal captured and escapes again = unowned.
· Wild animal returns to natural state = finder’s ownership extinguished.
· Government Possession: imperfect ownership of wild animals
o Have regulatory authority, but now ownership. Often increased by statutes.
Keeble v. Hickeringill: Right of action where one maliciously/violently impedes on another’s profession.
A. duck interference case
a. doesn’t include simple competition – if Hick. Simply lured ducks away from Keeble’s pond that would be OK. But instead, he maliciously scared them away.
Fugitive Resources: Resources that escape on their own volition.
· Escape = return to nature. First possessor no longer has possession, anyone can claim them.
o If Pierson had captured/caged fox, fox later escaped, Post captures, Pierson can’t sue Fox.
§ Exception: Animus Revertendi. “spirit of return.”
· Some wild animals tend to rove but return home (deer) à if owner releases them to graze and they return usually, another person can’t shoot them while grazing.
HYPO:
Farmer annoyed with migrating geese.
– First time around: government wins: owns right to regulate its own wild animals (doesn’t have possessory rights)
– Sues again next year: government wins again: doesn’t own animals in this sense.
o Imperfect ownership: ≠ possessory rights.
Acquisition by Creation
First-in-Time: first to create gets an exclusive right to exploit that for profit.
INS v. AP: News theft à Efficient Use: without some rights, won’t publish the news.
A. Rule: news sources have imperfect ownership of stories, cannot exclude public from news. Can exclude competitors from news
a. Enforces idea property describes relationships between people.
b. Can’t exclude from public because news is “publici juris”
c. Can exclude INS, competitor.
i. Bundle of sticks: imperfect ownership à can only exclude competitors.
B. Rule creates efficient distribution of news
a. Public relies on news sources.
b. If they couldn’t retain some ownership of sources and profit from it, they would not exist.
i. Also, INS should reap what AP has sown [Locke labor theory]
Cheney Bro’s v. Doris Silk: Silk-patterns (sort of like Forever 21 copying designs)
A. Man’s property is limited to chattels that embody invention, can’t claim ownership in a created design. Others may imitate.
B. Why?
a. Congress has patent law to deal with these problems.
i. Protects duplication for a certain amount of time
ii. Efficient use of resources: encourages innovation. (Why would you invent something if someone can just copy it and profit from it?)
1. Monopoly in creator necessary to foster innovation.
C. Compare to: Smith v. Chanel (knockoff of No. 5 perfume is a-okay.)
a. Imitation introduces competition, therefore will lower prices = social benefit.
i. Patent law keeps Chanel from being dis-incentivized.
b. Court says this ruling doesn’t discourage Chanel from making No. 5 because:
i. Chanel can patent the perfume (would allow exclusive rights to profit from the perfume for a certain period of time.) Also rich ladies are going to buy it anyway.
Body Parts: Moore v. Regents
· Dr. keeps body parts, keeps them for research
· Exempt from conversion claim
o No expectation of ownership
o Social benefit: encourage research (could have insisted on informed consent)
o Moral concern about body trade?
Subsequent Possession
Acquisition by Find
Four Goals of Find Law:
1. Get good back into commerce
2. Get good back to true owner
3. Encourage honesty
4. Promote social expectancy
LOST PROPERTY
A. General Rule: FIRST FINDER! Finder’s title is good against the whole world except the true owner, prior finders (and sometimes owner of the land where it’s found.)
a. PUBLIC PLACES à mislaid property goes to locus owner; lost property goes to finder.
B. Armory v. Delamirie: Establishes General rule.
a. if jeweler had been T.O., would have prevailed.
i. Chimney sweep gets damages, measured by market value, unless goldsmith produced the stone.
b. Reasons for the rule:
i. Social harmony (crystal rule)
ii. Gets property back into commerce
iii. Social expectations à “Finders keepers.”
c. The Winkfield: once wrongdoer pays full damages to bailee has an answer to any action by the bialor (T.O.)
i. NO double recovery! à Return everyone to the status quo.
ii. arises in voluntary bail situations.
iii. Assume Armory = voluntary bailment even though its involuntary
1. If blacksmith sold chimney sweep’s jewels to Arthur, chimney sweep recovers from Blacksmith.
a. If T.O. tries to sue blacksmith, blacksmith has defense. Then what?
i. T.O. may recover from chimney sweep.
1. Everyone returned to status quo.
2. TO = value of jewel; Chimney Sweep/Blacksmith: paid nothing (out of the red.)
iv. But what about involuntary bailments?
1. Best option: put burden on bailee to make sure property belongs to bailor
a. If bailor lies, bailee can indemnify from bailor for any suit TO may bring
b. If Bailee knowingly accepts goods from person he knows isn’t the TO then he bears the risk that the TO requests return.
C. Acquisition: (Baseball memo): must do more than discover
a. Physical control
b. Intent to assume dominion
D. Derived from Trespass: even if possessor wrongfully obtained possession, entitled to recovery from third-party interference.
E. Prior Finders: prevail over later finders.
a. Rationale: encourages finders to make productive use of finds instead of hiding them.
i. Cheap, easy way to establish presumptive title.
MISLAID PROPERTY
Definition: Intentionally put in certain place, forgotten by owner.
Private Property
Hannah v. Peel: windowsill brooch case.
A. Rule: Where a person has possession of house/land, with manifest intention to exercise control over it/things within it, then there is a presumption owner possesses everything on his property.
a. ANOMALY: usually a finder, who is a guest in an owners home wouldn’t win à court thought this was a fair ruling.
b. Private Locus: general rule is the locus owner gets it
i. Knowledge/control/intent of locus owner irrelevant
1. PPOL: you expect to own everything on your land
ii. Hannah exception: encourage honest finders.
B. Constructive v. Actual Possession:
a. Hannah: constructive (owned land)
b. Peel: had actual
old encroachments to not be open/notorious if it’s a small area and not “clearly and self-evidently” an encroachment.
1. These situations: SOL doesn’t run until owner has actual notice.
3. Adverse (hostile) and Under Claim of Title
a. Approvable intent to make property yours à “I take it for myself.”
b. Three Different Approaches:
i. Objective Standard
1. Connecticut Doctrine à Manillo
a. Intent irrelevant. Instead focuses on:
i. Lack of permission
ii. Whether occupiers acts/statements objectively appear to be claims of ownership.
ii. Aggressive Trespasser:
1. Maine Doctrine
a. Possessor must have intent to claim land he knows isn’t his
i. Criticized as rewarding wrongdoers
ii. Almost no one uses this today.
iii. Good faith standard
1. I thought I owned it.
a. Tenant ≠ hostile.
c. Color of title (written instrument purporting to give title to property): virtually always sufficient to meet hostility requirement.
d. Disclaimers of ownership: if AP disclaims ownership to persuade owner to not sue – stopped being adverse, limitations clock stops.
4. Continuous for the Statutory Period
a. Occupies as continually as a reasonable and average true owner would.
b. Howard v. Kunto
i. Whether occupying a house only during the summer constitutes “continuous.”
ii. Rule: look at custom practice within neighborhood à is possessor acting like true owner?
iii. Majority: summer vacation area à therefore, acting like true owner.
1. Purpose is to notify TO someone is possessing his land – will be notified if he’s acting like the owners in the neighborhood would.
iv. Issue #2: is tacking permitted (using previous possessor’s occupation to reach statutory period.)
1. Rule: Tacking OK when successive possessors are in privity with one another (reasonable connection between them.)
a. Not as strict as parchment privity.
Adverse Possession of Personal Property: Shorter SOL, not well suited – you’re not going to be really open and notorious.
O’Keefe v. Snyder:
A. Rule: COA vests when owner knew/should have known facts necessary to file action. In effect, puts burden on owner to show due diligence in discovering facts.
a. SOL begins at moment COA vests.
B. Notes: What happens if owner doesn’t exercise due diligence? Two options:
a. SOL begins at moment of not using DD (but how to you determine that) OR
b. Moment owner would have accrued knowledge had he used DD (HOW?)
c. Impracticability evident in NY: Art capitol rejects it.
C. Difficulties:
a. Chattels easy to hide. Difficult to give notice
i. With realty: just go to land.
b. Favors bad-faith possessors
i. AP SOL begins at moment DD kicks in, possessor must openly display chattels in order to begin SOL
1. Innocent possessors (not thieves) believe they’re the rightful owners of it, no incentive to openly display, therefore unlikely to initiate SOL.
2. Bad possessors know they aren’t the right owners – will display openly to initiate it.
