Property
Fall 2011
Swanson
I. Acquisition of Ownership
A. First Possession (2 types)
Property that has not previously been owned.
1) Acquiring Property By Capture (2 types)
a) In The Public Domain (intent + action)
For capturing wild animals / Achieving first possession, and thus ownership:
1. Mortal Wounding; AND
2. Not Abandoning Pursuit; AND
3. With the intention of appropriating the animal to one’s own individual use, such that; AND
4. The hunter has deprived the animal of its natural liberty and brought it within his/her control.
(Pierson v. Post) By actively pursuing the fox, did Post have a property right in the fox before Pierson killed it and took it away? No, mere pursuit alone is insufficient to sustain an action for killing and keeping fox. Policy: Court wishes to prevent a “fertile source of quarrels and litigation”; this, however, was not customary to hunters at the time. They would have decided this case in favor of Post.
Hypo: What if Post had a tag on the fox? Then the tag would have shown ownership of Post. Any animal that is on your property is deemed to be in your possession while on your property. (ratione soli)
*Livingston’s Dissent Rule for Capturing Wild Animals:
o Bodily touch is not imperative, provided that the animal is w/in reach, or the hunter has a reasonable prospect of taking the animal; and
o The hunter has the intention to convert the animal to his/her own use.
o Hunters customs should determine for themselves who should get the fox. Why waste the court’s time with this type of dispute.
b) On Private Property
Keeble v. Hickeringill, Queen’s Bench, 1707; “the duck case”
· Issue: Under property law, does a person owe damages to land owner when he knowingly and intentionally uses physical means to scare chattels off his land, when the person also knows that such action will result in decreased business and threat to land owner's livelihood?
· Rule/ Holding: Yes. If a stranger hinders and obstructs a landowner from engaging in their business practice through some deliberate action, then there is a cause of action, which imports damage. A cause of action did exist b/c D scared away the wildfowl to maliciously hurt P’s business w/no competitive reason.
· Policy: Court’s ruling is necessary to protect against malicious interference w/lawful business. Concerning Pierson, P would not win here b/c ducks not in his possession/control.
· Rule: Where a violent or malicious act is done to a man's occupation, profession, or way of getting a livelihood, there an action lies in all cases
· Vivory- a place where wild animals are kept.
Sub Issues
Escape
If a wild animal, captured and held in private ownership, escapes and resumes its natural liberty, the former owner loses his property right in it. The animal once again is unowned, and the first person thereafter to capture it becomes the new owner UNLESS:
1. Hunter is put on notice that the animal is not native to the area; OR
Ex. A cheetah in NYS.
2. Animal is Marked
(Ghen v. Rich) plaintiff killed a whale and left it to wash up on shore. Defendant found the whale on shore and sold it. A local custom was held that whereby a 3rd party finds whale, they notify the killer of the find.
*General Rule cannot be applied because if followed, the result would be the destruction of the entire local industry for this type of whaling. Thus court held custom rule of marking animal in order to preserve local industry.
HYPO: What if there was a whale floating b/w a Greenpeace boat and a whaler boat. Could the whaler sue claiming it was his? A: Could not sue as a whaler under Pierson, because he would not have possession.
Other Notes:
· First possession: generally, first possessor has rights
· Constructive possession: i.e. if there was a wild animal on my property, it is now my animal. If anyone trespasses and takes it, they will lose in court. “ratione soli”
· If an animal habitually comes onto your property, the animal becomes your property even if it leaves, “animus revertendi”
· HYPO: “Deer in a Pick-up Truck”
o O owns land. T is a hunter. T hears that O has a lot of deer on her land. T sneaks onto O’s land and kills a deer. On T’s way home, the deer falls out of the back of his truck. T1 comes along, sees the deer and takes it. In a lawsuit b/w O and T, who wins? A: O wins b/c deer was on her land and she had constructive possession. O is the true owner, and T is the prior possessor.
o If she wants actual deer back- -> “replevin” aka action for a declaratory judgment
o What if the deer is worth a certain amt of money?- -> sue under “trover” for actual monetary damages
o In an action between T and T1, T will win because he mortally wounded it.
2) Acquiring Property by Creation
This involves the development of intellectual property ideas, patterns and designs. Common law allows copying and imitation of property in the absence of a common law right or statute saying otherwise. This is in order to prevent monopolies and encourage competition, which in turn equals cheaper prices.
(Cheney Brothers v. Doris Silk) plaintiff developed patterns for clothing. Defendant took the successful patterns and sold them at a lower price. Court held that because there was no statute preventing the copying, defendant was within their rights.
NBA v. Motorola
· Can the NBA prohibit Motorola from sending real time updates of NBA game stats through Motorola’s pager network?
· “INS test” → No, they are not prohibited. It is fair use of the info. NBA and Motorola are not w/ in the “same” business.
· Elements the court looked at:
o P generates expenses at some cost
o The value of the information is time sensitive.
o The D’s use of the information constitutes free writing.
o D’s use is in direct competition with direct service of the P.
o The ability of other parties to free write the material would impair the use of the information.
Tiffany & Co. v. Ebay
· Is ebay responsible for fake “Tiffany” goods sold on its website?
· Tiffany sued for trademark infringement
· 95% of jewelry sold is fake
· outcome unknown of suit
· It is alright to say “just as good as Tiffany” or “looks identical to Tiffany,” but it is not alright to stamp “Tiffany & Co.” on the jewelry b/c Tiffany has prop rights in the jewelry w/ its name on it (chattels which embody its invention)
B. Subsequent Possession (3 types)
1) Acquiring Possession by Find (6 types)
Notes:
o Trover- An action at common law to recover monetary damages resulting from the conversion to defendant of plaintiff’s personal property.
o Replevin- A lawsuit to recover actual goods converted, not the monetary damages.
o Hypo: F1 finds a watch and loses it. F2 finds it. F1 sues F2. Who wins?
Answer: F1 b/c he is the prior possessor.
· Hypo: True Owner v. Sweep? True Owner v. Goldsmith?
Answer: The true owner wins in both cases.
· Hypo: What if goldsmith has paid twice?
Answer: He can sue sweep b/c true owner is back in the picture and is no longer possessor.
o Bailment- Created when goods (i.e. personal property or chattel) are transferred from the owner (bailor) to another person (bailee) for a limited purpose.
o Voluntary Bailment- Occurs when the owner of the goods the (bailor) gives possession to the bailee.
· Ex. pay coat check fee → vo
book had been placed there voluntarily by one of D’s customers. The prop was not lost; it was mislaid.
Reasoning: Court cites Lawrence v. The State: In that case, it was held that “to place a pocketbook upon a table and to forget to take it away is not to lose it, in the sense in which authorities referred to speak of lost property.” The court here wants to promote the return of the mislaid property to the true owner and reasons that entrusting the shopkeeper with the goods gives the true owner a better chance of being reacquainted with the property. The P acquired no original right to the property, and D’s subsequent acts in receiving and holding the property in the manner he did does not create any rights in the P. D can keep the prop.
2) Acquiring Possession by Adverse Possession (8 elements)
o 3 Ways to Think About AP:
• AP punishes owners who “sleep” on their rights, and rewards APers who “earn” rights by possession. “absentee owner theory”
• AP encourages the productive use of property, rather than allowing land to go unattended and unused.
• AP furthers the alienability of land (how easy it is to buy and sell the land).
o AP Process Issues:
• Statutory period for adverse possession starts when the cause of action accrues (when A enters and begins to adversely possess).
• Owner has the right to commence action(s) for Quiet Title (This is a way of saying that you have a right to the property, but everyone who feels the same will be given a right to appear and the judge will decide), Ejectment, or Injunction.
• Period ends at the end of the statutory period, subject to an exception for disabilities (as specified by statute); MI is 15 yrs.
• Law regarding AP is governed by both statutory rules and court made rules.
a) (1) Actual entry giving (2) exclusive possession (not with the owner in occupancy and not with the permission of the owner) (actual entry- the ability to control land and the intent to exclude others) (exclusive- if the true owner is occupying the same land that you are trying to occupy, then you are not going to succeed in adverse possession.) that is; AND
b) (3) Open and (4) notorious (must give the true owner the opportunity to be on notice of occupancy (visible, apparent, not hidden) (the question we can think about is “how do we prove what day it actually started?”) (you have to possess the property in such an open and notorious fashion that the true owner would take notice), regardless of whether the owner ever actually takes notice, and must exhibit possession typical of ownership (change of address form at the post office); AND
c) (5) Adverse and (6) under a claim of right (entry and possession is an assertion of title, and the denial of title to all others, generally there is no intent requirement) (adverse- if you have been using the property and have been benefiting from it, and not sharing it with the true owner, then it is adverse)(under claim of right- this goes to the intent of the adverse possessor. The aggressive trespassor- the guy who knows it’s not his but wants to steal it. The good faith tespassor- has a mistaken belief that the property was actually theirs.) ; AND