Property I – Aiello – Winter 16
Fundamental Concepts
Property Defined
A property interest is any right which the law will protect against infringement by others.
In addition to tangible property (land and chattels), courts have increasingly recognized broad categories of intangible property interest
E.g.: teacher with tenure in public school system may be found to have constitutionally protected property interest in continued employment
Bundle of rights: ownership consists of a number of different rights, often called a bundle
Bundle: The right to possess and use the object, the right to exclude others from possessing or using it, and the right to transfer it.
Even the right of transfer has two distinct aspects
Right to make a gift
Right to sell property
Creation of property
Wild animal possession: The courts have held that once a person has gained possession of a wild animal, he has rights in that animal superior to those of the rest of the world. One can gain possession by killing, capturing, or mortally wounding the animal.
Capture in the public:
It is not always easy to tell when a person has obtained possession of a wild animal. Obviously the capture of such an animal is sufficient. But where less than outright capture has occurred, the line between possession and non-possession becomes blurry.
Chasing: The mere fact that one has spotted and chased an animal is not sufficient to constitute possession.
Pierson v Post: P found and chased a fox as part of a hunt, D then stepped in, killed the fox, and carried it away. The court held that mere pursuit gave P no legal right to the fox, and that D thus had a right to interfere.
Trapping or wounding: One who mortally wounds an animal or fish so that capture is almost certain, is deemed to have possession. Similarly, the catching of an animal or fish in a trap is sufficient. But the capture of the quarry must be virtually competing before possession will be found.
Capture on private property:
Business competition: The courts are more likely to be sympathetic to the interfering defendant if he acts out of business competition with the plaintiff, rather than out of spite or malice.
Keeble v Hikeringhill: P claimed that he had set some decoys on his own pond to lure ducks in order to hunt them, and that D fired guns nearby to drive the ducks away. The court held that P was entitled to recovery, because D’s act was a violent and malicious interference with P’s livelihood. But the court noted that if the ducks had been lured away from P’s pond by D’s use of the same type of decoys for his own business, P would not have been entitled to recover.
Wild animals entering private property are “constructively possessed” by property owner, but generally return to their wild state when they leave the private property; however, a property owner who tames or domesticates a wild animal who has habit of returning to that property owners land might have an argument for possession of the animal when it returns to the wild
Custom: The court may look at the “customs” or the “usages” prevailing in the activity or trade involved. For instance, the custom among American whalers was that the ship or company which lanced the whale and thereby killed it was the owner. Even though the whale immediately sank, floated to the surface several days later and was found by another.
Courts look at precedent, public policy, and customs when making decisions regarding possession.
Ghen v Rich: The court applied this usage and thus granted the company which killed the whale recovery against D, who had bought the whale at an auction from the person who found it on a beach.
Return to natural state: If a wild animal is captured and then escapes to return to its natural state, the courts have generally held that the finder’s ownership is extinguished. The animal then becomes the property of whoever recaptures him.
In general, ownership rights end when a wild animal escapes or is released into the wild, however, if a captured wild animal is tamed such that it has the habit of returned from the wild to its captor, it is still owned by the owner.
Acquisition by creation
This involves the development of intellectual property ideas, patterns, designs, etc.
Congress has enacted statutes for patents, copyrights, etc. providing for the achievement of rights of possession with respect to such property
Issues in the cases that follow are whether people may acquire possession in instances not covered by statutory law
Intellectual property:
INS v. Associated Press (the news case): AP (P) sued INS (D) for the INS’s admitted use of AP new stories in INS publications. INS would obtain advance publications of AP news and would then use it in its newspapers. AP contended it had property rights to all its news it gathered through the efforts of its contributors. INS contended any such right terminated upon its first publication. Publication for profit of news obtained from other new gath
The finder has rights superior to those of everyone except the true owner
E.g. P a chimney sweep finds a jewel and carries it to the shop of D, a goldsmith. He asks D’s apprentice to examine it and tell him what it is. The apprentice takes out the stones and refuses to return them. P sues for the value of the stones. HELD for P.
The finder of an object, although he does not by finding acquire absolute ownership, is entitled to possess it as against anyone but the true owner.
Statute of limitations: Although the possessor of goods holds them in trust for the true owner, all states have statutes of limitations, at the end which the true owner can no longer recover the good from the possessor. Usually the statute of limitations does not start to run until the true owner knows or with reasonable diligence should know the possessor’s identity.
Possession derived from trespass: even if the possessor has obtained his possession wrongfully, he will be entitled to recover from a third person who interferes with that possession
Article lost by possessor: a possessor who loses the property after finding it or otherwise acquiring it may nonetheless recover it from the third party who subsequently finds or takes it.
Acquisition: For the finder to gain these special rights, he must do more than merely discover the property, he must take it into his possession. Just as in the case of wild animals, the existence of possession is sometimes hard to determine.
The finder MUST have
Physical control over the goods
Intent to assume dominion over them
Example: P discovers a shipwreck at the bottom of the Mississippi river. He attaches a temporary buoy to the wreck, and intends to begin salvaging the next day. However, he does not return and eight months later D salvages the ships contents. Held, P never took possession of the ship and its contents. His placing of a temporary buoy did not constitute physical taking, but was merely an expression of his intent to appropriate the property.
