Property I Outline

I. First Possession: Acquisition by Capture:
Property Rights in Wild Animals is gained when one of the 3 things happens:
Kill it
Mortally wound it and be in active pursuit of it (Can’t Abandon)
Capture it (Deprive from its natural liberty)
Pierson v. Post – Post, a hunter, found and pursued a fox over vacant land. Pierson, fully aware that Post was chasing the fox, killed it himself. When Post sued Pierson for the value of the fox, the court held that Pierson was the true owner, because he had been the first to actually kill or capture the fox, however rude his action may have been.
Ghen v. Rich – (Capture can be defined by usage or custom) Ghen was a whaler for years and killed a whale and tagged it. It was custom to abandon the chase b/c of the dangerous nature of it. Rich found the whale that drifted from its anchor a few miles away. Ghen is the true owner b/c he first “captured it” when he killed it by custom.
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 returning from the wild to its captor, it is still owned by the captor.

Constructive Possession
English law held that the owner of land was in constructive possession of the wild animals on the land.
American courts reject this view; here, a landowner owns no rights in wild animals on her land.
However, because an owner may bar hunters and others from trespassing on her land, this gives an American landowner the exclusive opportunity to capture wild animals on the land, subject of course to hunting laws.
Once the animal leaves your land it is fair game

Malicious Interference with Trade Theory
If your neighbor captures animals for trade legally and you interfere by illegal means, violently or maliciously, this is a disturbance and a hinder to his trade.
Keeble v. Hickeringill-P had a duck pond with decoys, neighbor shot blanks to scare the ducks away, had he used decoys of his own this would have been ok, his manner however was Malicious.

II. Customs v. Law and Public Policy
Things the court looked at in their decisions
Precedent
Public Policy
Customs
Pierson was a Precedent decision as we looked to the standard prior. Sure it is unfair that the hunter lost his game, but we also wanted to encourage the killing of animals to protect livestock. This decision gave us certainty which we like as it gives us knowledge of the law and understanding.
Ghen was a custom decision in that we looked to custom in that trade to see what was normally the rule in such an extreme instance.
Keeble was a policy in that if this interference was allowed then the market could suffer and so a man’s business. If this had been to save endangered species it would have been a benefit to society and decided the other way.

III. Subsequent Possession: Acquisition by Find
Law looks to:
Encourage those who find to turn it in so we can find the TO and reward them
Punish those who don’t’ by taking it if we find out
Objective of the law:
Get the item to the TO
Not reward the finder unless TO can’t be found
Subsequent Possession is the first possessor after the TO
Doesn’t have to have better title than the whole world, just better than the other in the law suit
First in possession has a better right than all others except the true owner (TO).
Armory v. Delamire –Chimney sweep who found the gems had a better title than the jeweler he took them to that tried to keep the jewels. (A looses gem, B finds it, C takes gem from B, B sues for the gem back…B wins b/c he had better title than C…if A sues they win over everyone)
What property can be found:
1. Abandoned Property (Finder Keeps)
– Property is abandoned when the owner intentionally and voluntarily relinquishes all right, title, and interest in it.
2. Lost Property (Finder Keeps)
– Property is deemed lost when the owner unintentionally and involuntarily parts with it through neglect or inadvertence and does not know where it is.
3. Mislaid Property ( Property owner where found Keeps)
– Property is considered mislaid when the owner voluntarily puts it in a particular place, intending to retain ownership, but then fails to reclaim it or forgets where it is.
Treasure Trove (some older courts award title to the finder, the modern view is to award it to the landowner.)
Finally, English law recognized a category called treasure trove, consisting of gold, silver, currency, or the like intentionally concealed in the distant past by an unknown owner for safekeeping in a secret location.

Who holds rights to found property?
Rule of Finders – First in possession has a better right than all others except the true owner (TO).
If found on another’s land. Finder has superior title than land owner if:
Land was never possessed by owner (then they never had constructive possession)
Owner never knew of the lost item or that it was lost
Wasn’t buried on the land, or attached to it
Hanna v. Peel- Soldier who found broach in house being used as barracks had better right than owner of the house b/c the owner never possessed the house, didn’t know the broach was lost, the broach was found in a public place of the house, it wasn’t buried underneath the land or attached to it.)

3. Examples when the owner might have better title:
Servant and employees – Usually when the employee finds something we say it is for himself. If it is a hotel worker, janitor, etc…where society wants it to be returned for their replevin then it goes to the employer.
If a trespasser finds it
If it is buried on the land or attached to it
Bridges v. Hawkesworth – patron finds bills on the floor of a store, tells owner he keeps and advertises, no response, finder wants property for himself the owner says it is his…court ruled for the finder b/c it was public walkway of the store, it was lost not misplaced, finder did the right thing.
South Staffordshire Water Co. v. Sharman – owner of the land won the rings since they were found on his property buried in the dirt and the finders were agents of the owner.
Elwes v. Brigg Gas Co. – a boat was found by the gas company when they were digging, it went to the owner of the land since it was buried and he hadn’t given up possession of the land.
Definitions:
Locus in quo- Location of finding
Trover –action for the value of the object and not the object itself
Replevin – action to regain the object

4. A finder is entitled to keep the found property until the TO returns to claim it.
Exception – if it was forgotten and not reclaimed
McAvoy v. Medina – A man found a pocket book on a table in a barber shop and was not entitled to keep the money b/c it wasn’t lost it was mislaid or forgotten. The shop keep kept it b/c he is more likely to get it back to the TO)

IV. Adverse Possession – “Legalized theft over time”
Why adverse possession?
“Earning Theory” – Reward the productive use of the land.
“Sleeping Theory” – Penalize those who sleep on their rights of ownership.
“Stability Theory” – We like closure
All reward the active productive use of the land
Elements
Actual Entry and possession onto Land
Use the land as the TO would, put up a fence, cultivate the land
Open, Notorious, and Visible
If the TO was attentive they would know you were there.
Others can see you there
You actually claim you own it at town meetings, or paying taxes.
Hostile
There without the owners consent
Continuing for the Statutory Period
Must be there the entire statutory period
If the TO re-enters you must start all over
Tacking may be permitted where one adverse possessor transfers his right to another for the same purpose of adversely tacking. If there is no privity then they do not tack.
Only need to show a trespass and not an intent