Property
Swanson
2014
Acquisition by Capture
– Pursuit alone is not enough for possession (fox case) – recreational use, custom not followed
o Exception is if do all that can to make animal own
– Public domain capture rule: (AND)
o Mortal wounding
o Not abandoning pursuit
o With intent to appropriate for own use
o Deprived animal of natural liberty and brought within control
– Livingstone’s dissent: Touch not needed, only within reach
– Custom upheld in whale case where went to one who killed, not one who took
o Courts want to reward one who did the work (relating to business)
– Private Property:
o Ratione soli: Owner of land has constructive possession of wild animals on land until they leave, unless domesticated (animus revertendi)
o Cannot scare away animals to hurt business and not for competitive reasons (duck case)
§ Example: McDonald’s and Burger King – okay to compete
Hypos
– O owns land, T trespasses and hunts/kills deer, then takes
o O could sue to get back (ratione soli)
– T loses deer, T2 finds
o T could sue to get back, finder prevails against all but true owner
§ 1st owner has better rights
o O could also sue to get back
Recovery
– Trover: Value of item, monetary damages from conversion to defendant
o Trover is to personal property what trespass is to real property
– Replevin: Recovery of actual goods converted, not monetary damages for value
o Replevin is to personal property what ejectment is to real property
Acquisition by Creation
– News is common quasi property, but must have fair competition in use
o Can’t reap what haven’t sown – requires labor, skill, and money
o History of day, not creation of writer
– NBA does not owe score updates, Verizon may broadcast
– No protection on clothing designs, just the name
o Example: Gucci vs. Target – can copy design because helps prevent monopolies and makes better products, but cannot say it is that brand
Types of Protection
– Patents: Processes/products that are noble, useful, and not obvious
– Copyright: Protects expression of ideas in books, art, and music
– Trademarks: Get for words/symbols that indicate maker of product
o Tiffany v. Ebay: Tiffany’s job to monitor these, not Ebay
Acquisition by Find
– Public Property:
o Finder prevails against all but true owner or prior possessors
o Example: A loses ring, B finds. Then B loses, C finds.
§ B gets back unless A claims
– Private Property:
o Could include property found at home, similar to wild animals on land
o Owner has constructive possession of property within a home
§ May keep unless true owner returns to claim the property
§ Keep there because place most likely to return to
o Finder has no rights – can’t go into house and start claiming stuff
o If owner is unaware and found by another who gives time to find owner, may keep if no claim so to reward honesty of reporting
§ No physical possession of house, finder should keep
o Exception: Never in custody of owner, not within protection of house, not in area where public usually not allowed – public domain rule will apply
Bailment
– Created when personal property is transferred from owner (bailor) to another person (bailee) for limited purpose
– Voluntary: Bailor gives possession to bailee, can be between 2 people
o Examples: Dry cleaner, tow truck, library, etc.
– Involuntary: Take possession of another’s chattel without their consent
o Examples: Repo truck, dog catcher, stolen car, etc.
– Duty of Care: Bailee must use care that ordinary person would use under like circumstances
Mislaid/Abandoned/Lost Property
– Mislaid: Owner of wherever left should retain possession because better chance for true owner to get property back, finder has no rights to property
o Must first determine if lost or mislaid
o Intentionally placed, unintentionally left behind
o Owner of locus in quo may get
o Example: Ring found on counter by sink
– Abandoned: Intentionally brought, intentionally left behind
o No intent to reclaim, finder gets to keep
o Example: TV out by curb for the taking
– Lost: Intentionally brought, unintentionally set down
o Finder gets to keep
o Example: Ring found on the floor
Adverse Possession
– Better for fee simple because only get what true owner had
– Elements:
o Actual entry
§ Without permission, triggers statute
o Exclusive possession
§ Can’t steal if true owner still in possession and have permission to be there
§ Example: Does not apply if living in parent’s house
o Open
§ Must be visible and apparent so that true owner will be aware
§ Must be recognized by ordinary person, penalized if sleep on rights
o Notorious
§ Does not matter if they actually know, just that they had a chance to know
o Adverse
§ To the true owner
o Under claim of right
§ Used as true owner would
o Continuous
§ Can include vacation home if used in same way that true owner would do
· Seasonable absence okay (Howard case)
§ If leave, must start over (may come and go as please)
§ Can’t come in middle of night for 2 hours, then leave
§ Same care for caring, holding, and managing property in like nature and condition
o Statutory period
§ Can end 1 minute before
– Must use in same way that true owner would, better if other people think your property
– Way to transfer interest in property and
orious
o Better to allow for adverse possession with mistaken belief than require be wrongdoer, will reward honesty
– Example: A puts up fence with 3 feet on B’s land, takes down 10 years later. Then wants to put back up – can put 3 feet onto property against since have gotten by adverse possession
Tacking/Privity
– Tacking: Joining of consecutive periods of possession by different persons to treat periods as one continuous period, establishes continuous adverse possession of land and meet time quicker (must have privity)
o Example: A stays for 2 years, B stays for 4 years, so C starts with 6 years if can tack
– Privity: Connection/relationship between 2 parties, each has legally recognized interest in same subject matter, not strangers
o If kick another off of the land, no privity
o If forced off land and don’t leave by choice, time pauses and continues when come back
§ No credit for the time period that were not there
§ If kicked off by true owner, must start over
– Types of Privity:
o Privity of Contract: Relationship between parties to contract, letting sue each other, but prevents a third person from doing so – purchase contract
o Privity of Estate: Have when deed is exchanged, mutual/successive relationship to same right in property (example: grantor/grantee)
o Privity of Possession: Privity between parties, in successive possession of real property
§ Simply means possession, easiest to do
§ A1 moving out, lets A2 move in – possession
– Shouldn’t have to survey to make sure house is one in deed
– Example: O dies in 1991, leaving will devising property to B for life, remainder to C. In 1992, A enters adversely. In 2006, B dies… Owner is now C, had future interest and can kick off
o Only get what person steal from owns, entered against B who had life estate
o When B dies, clock starts over since C new owner
§ C couldn’t kick off before because had no rights
Adverse Possession of Chattel
– Must act when first know or reasonably should know through use of due diligence or cause of action, same as with the land
– Discovery Rule: Doesn’t start clock until know or should have known identity of paintings
o Whereas property starts when enter
