1.Personal Property

I.Introductory Principles
  1. Law puts great weight on observable fact of possession. Proof of ownership is often not evidenced by a writing.
  2. Possession = observable fact or legal conclusion or both.
  3. Possession = certain amount of actual control over the property; and an intent to possess the property and exclude others
  4. Keron v. Cashman/ Huey, Louie and Dewey. Tossing bag, which breaks, and money comes out. Dewey catches the money. Each one has claim. Huey was first person to see it. Louie claims the bag was going to be thrown to him. Dewey caught it, and so was first to touch the money. Under law of finders, where possession counts, who gets it?

Rule: Two things to establish possession: actual power over the thing (boy with jewel, Clark with log) and manifested intention to control (boy said weigh this for me, Clark tied up logs).

Keron v. Cashman. Judge determined that all five boys playing with sock made a joint-find because money was discovered in the act of playing. All formulated the intent to possess the money at the same time and had mutual control. Person who found it didn’t know it had money, therefore not his.

Is this a Judgment of Soloman, i.e. a wise move outside the law, or application of law? Might think application of law of Armory, but distinguish this case from Armory because boy had more intention to control the jewel than boys had intention to control sock. This defeats claim of Huey, but does not establish claim for all five. Boys handed money over to father when conscience kicked in. In doing so, did not give up manifestation to control if true owner does not show up. Relinquish does not = abandon. Intention makes the difference. Dewey doesn’t get it because wouldn’t have caught it if hadn’t been thrown to him. Mere happenstance. Didn’t happen at any one moment; part of activity in which all contributing. In Armory, not a joint activity. Therefore: Judgment of Soloman. Nothing in law on single finder.

  1. “Have title” or “own” = legal conclusion (even if don’t have actual possession)
  2. Title is a relative concept – can have title as against one person but not another.
  3. If determined that have entitled to legal possession, have right to:
  4. Continue possession against everyone except those persons who have a better right to the property;
  5. Recover property if wrongfully taken; and
  6. Clark v. Maloney (1840)

Facts: Plaintiff found white pine logs floating down creek and tied them up. The logs floated some more and defendant claimed possession. Defendant thinks his title is as good as the plaintiff’s. Action in trover.

Rules: Finder of chattel, though he does not acquire an absolute property in it, yet has such a property, as will enable him to keep it against all but the rightful owner. Loss of chattel does not change the right of property.

Holding: For plaintiff (first finder).

  1. Recover damages to the property against a wrongdoer.
  1. Finders’ Rights
  2. Finder = person who rightful acquires possession (control + intent) over property of the following common law categories:
  3. Lost: possession has been parted with casually, involuntarily or unconsciously. Finder acquires title as against all but the true owner, which may include a prior possessor. Finder in relationship with the true owner similar to that of bailor-bailee. If finder loses the found property, may reclaim it from a subsequent finder. Finder has superior claim as against another who wrongfully takes the goods from the finder. Guilty of conversion if know or could find out true owner. If find property on land of another, finder entitled to the personal property unless he is a trespasser.
  4. Armory v. Delamire(1722)

Facts: Chimneysweep boy finds jewel. Apprentice gave boy a very low value and took the jewel. Boy brought action of trover against master (of apprentice). Apprentice probably took off. Master would have offered to return jewel because master was going to have to pay an amount equal to the best jewel which could possibly fit into the setting. Several of the trade (expert witnesses) gave opinion as to value.

Rule: Boy has a claim of possession to jewel, though he does not by such finding acquire an absolute property or ownership, can support action against anyone who is not the rightful owner or someone who stands in the place of the rightful owner, and consequently may maintain trover.

Holding/ Reasoning: Don’t know anything about the rightful owner. Therefore, boy has right to jewel and since third party wrongfully converted, gets value of jewel. Since don’t know it, have experts determine the highest possible value of the jewel.

If true owner of jewel in Armory appears, does goldsmith have to pay “again”? Act of conversion (assertion of property rights in something that is inconsistent with right of rightful owner) makes you liable to true owner or prior possessor. By satisfying claim, a  steps into shoes of the . By paying, then own the object.

  1. Anderson v. Gouldberg, Minn. 1892
  2. Barker v. Bates(1832)

Facts: Stick of timber driven ashore and lodged in ’s property. Never claimed by original owner.  takes the timber.

Holding/ reasoning: By entering ’s property to get the timber, s committed trespass. Though neither had claim of title except for possession,  had, in virtue of his title to the soil, the preferable right of possession. Ratione soli = claim of landowner extends to anything on the land against anyone except the rightful owner.  can recover value of timber.

  1. Misplaced: property intentionally placed somewhere and then unintentionally left or forgotten. Finder is not entitled to retain possession as against the owner of the land on which property found. Owner of locus in quo is deemed bailee for the true owner.
  2. McAvoy v. Medina (1866): Customer in barbershop found pocketbook on a table. Property not lost; voluntarily placed on the table, accidentally. Duty of shop to use reasonable care for the safekeeping until owner should call for it.
  3. Abandoned: no longer in possession of prior possessor who has intentionally relinquished, given up or released the property. Finder generally entitled not only to possession but also to ownership as against all others.
  4. Hidden treasure trove: 1) not lost or mislaid; 2) money or coin, gold or silver, plate or bullion; 3) antiquity, having been hidden long ago to indicate that the owner is dead; and 4) owner was prevented from reclaiming it.
  5. In US, treated as lost property and belongs to finder. In Texas, not the finder, rather the owner of the locus in quo. In England, escheated to the crown.
  6. Historical artifacts. Law of finds does not create separate category for historical artifacts rather than chattels. In future, may see different category, saying that such property will go to the state.
  1. Many states have statutes which give finder greater rights to property than the finder had at common law. These statutes generally eliminate the distinction between lost, misplaced, abandoned property and treasure trove.
  2. Personal property that owner of locus in quo did not know existed on/in his property.
  3. Non-trespassers (employees, serviceman)
  4. South Staffordshie Water Co. v. Sharman (1896)

Facts:  bought property which included Minster Pool.  was freeholder of the locus in quo.  employed , among others, to clean out the pool.  found two gold rings in the mud at the bottom of the pool.

Issue: Are ’s owners of gold rings even if didn’t know they were there?

Rule: Possession of land carries with it general possession of everything which is attached to or under the land, and in the absence of a better title elsewhere, the right to possess it also. And it makes no difference that the possessor is not aware of the thing’s existence.

Reasoning: For 

-Here, unlike Blackstone cases, had real de facto possession, or a general power and intent to exclude unauthorized interference.

-General principle: where a person has possession of house or land, with a manifest intention to exercise control over it, and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner or by a stranger, the presumption is that the possession of that thing is in the owner of the locus in quo.

Sharman has not been followed much in the US where employees finding things at their place of employment have prevailed over the owner of the locus in quo. (really? see Boyer, p. 8)

  1. Hannah v. Peel (1945)

Facts: Peel owned the house (locus in quo) beginning in December 1938. Never occupied it. House was requisitioned by the Army in October 1939 (WW II). August 1940 Lance-corporal Hannah casually (when adjusting blackout curtains) found a brooch seemingly hidden; at first, unconcerned; then wife said it might by valuable; turned it into the police in October 1940. (Character of the find might be important. See Favorite and Miller, where court bothered by fact that finder posing as seeker of knowledge when in fact a metal detector seller.) 1942, owner not found, so police give brooch to Peel. Peel sold it for 66 pounds; who resold it for 88 pounds to Messrs. Spink & Son, Limited. (Hannah could not have sued Spink because they paid for it whereas Peel paid nothing for it. Law of bona fide purchasers. Owner of property does not lose the right to the property no matter to whom it goes unless owner at fault. If property is taken without your knowledge, reluctant to have rule which would limit you to suing the thief. Would want to get property back from person who bought it from thief. )

Holding: Judgment for  (finder).

Reasoning:

-Bridges v. Hawkesworth:  found parcel (Bank of England Notes) on the floor, in the shop of .  handed parcel over to  for the purpose of delivering them to the owner should he appear. Place of finding [i.e. inside the shop] did not make a difference because it was a lost article. Holding: For  (finder)

-South Staffordshire Water Co. v. Sharman: if a man finds a thing as the servant or agent of another, he finds it is not for himself, but for that other. [A characterization of the case which does not really follow its main point, i.e. ownership of land entitled them to the rings; owner of locus in quo prevails. Real distinction between Sharman and Hannah v. Peel about owner of locus in quo having control and intent to possess land and what is on it. p. 4 And Peel had never exercised intent to control it primarily because didn’t know it was there.]

-Elwes v. Brigg Gas Co.: Elwes leased (with reservation to the lessor of all mines and minerals) land to , who discovered a prehistoric boat. Holding: the boat, whether regarded as a mineral or as part of the soil in it which it was embedded when discovered, or as a chattel, did not pass to the lessees by the demise, but was the property of the lessor though he was ignorant of its existence at the time of granting the lease.

-Precedents unsatisfactory:

-Man possesses everything that is attached to or under his land.

-Man does not necessarily possess a thing which is lying unattached on the surface of his land even though the thing is not possessed by someone else. (Bridges)

-No doubt that brooch was lost.

- was never physically in possession of the premises. Had no prior possession. No knowledge of it.

-Found by  for 66. [Contrary to Armory v. Delamirie where finder received market value, which was highest possible value since did not know? No, because 66 probably close to value since 88 close and maybe 20 just a markup.]

Nothing made of whether lose or mislaid.

  1. Trespassers
  2. Favorite v. Miller (1978)

Facts: At time of independence, band of patriots knocked down statute of King George III, and were taking it to bullet-molding foundry. On the way, stopped for drinks. Loyalists came upon the statute. Took it and buried it.

Two hundred years later,  trespassed on property of  to locate and dig up part of the statue.  sold part of statue to City of NY Museum of $5500. (Only on contract to Museum so suit is against .)

Holding/ Reasoning: For  (owner of property)

-Traditionally, whether lost (involuntary parting)/abandoned (voluntary relinquishment) or mislaid would make difference. If lost, finder could keep. If mislaid, owner or occupier of the land prevails. The court is required to make a judgment re: mental state of the original owner. Here, difficult to know.

-Miller tried to characterize his trespass as searcher for truth; this is bogus. Even if true, trespass was not trivial or merely technical (e.g. law professor taking log from UC grounds). Like Barker v. Bates. If trespass, sufficient to deprive him of his normal preference over the owner of the place where the property was found.

-Fragment was embedded in the property, therefore is the property of the owner of the locus in quo. (Like South Staffordshire v. Sharman (rings in pool) and Elwes v. Briggs Gas (historic boat)).

Decision doesn’t seem to turn on whether abandoned or mislaid (mostly because can’t be known). Rather on embedded and trespass.

  1. Bailments
  2. A delivery of good in trust, upon a contract expressed or implied, that the trust shall be faithfully executed on the part of the bailee. A transfer of personal property to a person who is not its owner and for a limited purpose.
  3. Cowen v. Pressprich, NY 1922: Here, implied contract found; on appeal, reversed.
  4. Facts: Brokerage firms. Cowen had delivery boy (Goldberg) take bond of the Oregon & California RR instead of the Oregon Short Line RR to Pressprich. Delivers it through the glass window/ slot. When clerk discovered the discrepancy between the bond and the slip. Opened ground glass window and called Cowen. Another delivery boy stepped up, took bond and left.
  5. Holding/ Reasoning: Pressprich liable

Pressprich clerk became an involuntary bailee. If lack of volition had continued, then wouldn’t be liable for even the grossest negligence. But, since exercised dominion over the bond, then responsible as if he were a voluntary bailee. Duty of bailee to deliver the bailed article to the right person and that delivery to the wrong person is not capable of being excused by any possible showing of good faith or innocence. This is the rule.

[Dicta; protection on appeal if voluntary bailment not found. In fact, did not work as protection since this case was overturned.] Pressprich could have called Cowen or sent it back via one of their own messengers. Negligent to take chance of delivering it to wrong messenger boy.

  1. Dissent: Lehman (Relied upon for reversal)

No consent. No agreement (implied or express) to possess. No overt act of interference with the property that implied contract of bailment. Did nothing inconsistent with the view that did not accept possession.

In fact, everything clerk did was a good faith effort to return to rightful owner.

Pressprich had right to divest themselves of possession and attempt to return. Mistake therefore not conversion.

  1. Class notes:

Majority found constructive bailment.

Suppose that instead of returning bond to the unknown runner, the clerk burned it. Liability? Yes, because overt act, exercise dominion. Bailment and then conversion.

If Pressprich had made a paper airplane out of it? Pressprich would claim that no bailment, no liability. But still don’t want Pressprich to do this. Problem: can’t move from Lehman’s position to unlimited behavior by Pressprich. How far can you go when get something that you didn’t ask for. E.g. truck hits pothole and chicken flies out and lands on your property.

  1. A rightful possession of goods by one who is not the true owner. Bailee must have possession, i.e. physical control and intention.
  2. Courts hold that goods in safe-deposit box = bailment, even though bank’s control is not exclusive and bank doesn’t know what’s in box.
  3. Intent – issue with parcels where bailee is unaware of contents
  4. Distinguishing bailment from other legal relationships
  5. Custody – when owner places goods in actual physical control of another with no intent to relinquish right over them. E.g. Clerk hands goods to customer to examine.
  6. Sale – title passes.
  7. Conditional sale – purchaser acquires beneficial interest in the goods as well as possession. Conditional seller retains legal title for security purposes only.
  8. Trust – trustee acquires legal title for purposes of performing her duties as trustee; bailee has possession only.
  9. Lease – landlord-tenant or licensor-licensee relationship and not a bailment results when lease space in building or park-and-lock parking lot.
  10. Ellish v Airport Parking Co. NY 1974: Bailee not liable in transaction considered as a license to occupy space.
  11. BUT Allen v. Hyatt Regency – Nashville Hotel, TN, 1984

Facts: Allen parked new car in Hyatt multi-story, park and lock garage. Thought it would be safer in an attended garage. Ticket machine at entrance; exit booth with attendant in full view of entrance. Car stolen. Hyatt had security guards who on a non-regular basis patrolled the garage. A report that day of someone messing with a car; when the guard went to check it out, did not find anything unusual. Other side of ticket says that Hyatt assumes no liability for loss through fire or theft or collision. Park at own risk. Tickets given solely to measure time. [Not as a claim check or as a contract]