3.Acquiring Possession by Finding Articles

TABLE OF CONTENTS

POSSESSION

1.General

2.Wild Animals

3.Acquiring Possession by Finding Articles

4.Bailments

5.Adverse Possession......

GIFTS AND SALES OF PERSONAL PROPERTY

1.Gifts of Personal Property

2.Bona Fide Purchasers of Personal Property

FREEHOLD POSSESSORY ESTATES

1.Introduction

2.Fee Simple

3.Fee Tail

4.Life Estate

FUTURE INTERESTS

1.Introduction

2.Reversion

3.Possibility of Reverter

4.Right of entry

5.Remainder

6.Destructibility of Contingent Remainders

7.Rule in Shelley’s Case

8.Doctrine of Worthier Title

9.Executory Interests

10.The Rule Against Perpetuities

POWERS OF APPOINTMENT

1.Doctrine

2.Terminology

3.General Background

4.Types of powers

CONCURRENT ESTATES

1.Tenancy in Common

2.Joint Tenancy

3.Tenancy by the entirety

4.Rights and duties of Co-Tenants

MARITAL PROPERTY

1.Common Law Marital Estates

2.Community Property

3.Alt. Marriages

THE SALE OF LAND

1.Contracts of sale

2.Mortgages

RECORDING ACTS

1.Recording System

2.Indexing

3.Types of Recording Acts

4.What recordation does not do

5.Who is protected by recording acts

6.The vicious circle

7.Requirements for Recordation

8.Chain of Title Problems

EASEMENTS & COVENANTS

Easements

1.Introduction

2.Creation ofEasements

3.Scope of Easements

4.Termination of easements

Equitable Servitudes

1.Introduction

2.Creation

3.Enforcement by or against assignees

Real Covenants

1.Introduction

2.Creation

3.Enforcement by or against assignees

4.Termination of covenant

NUISANCE

1.General

2.Private Nuisance

TAKINGS AND LAND USE CONTROLS

1)General

2)What is a taking?

3)Why Should the Govt. Have to Pay?

PROPERTY OUTLINE

POSSESSION

1.General

Definition- possession may refer either to facts indicating physical control & intent to exclude others from control OR to a conclusion by a ct. that a person is in “possession” & ought to be protected as a possessor
Distinguished from ownership
Ownership- “title”, usually proved by showing document signed by the previous owner or 1st possessor transferring title to present titleholder
Possession- proved by showing physical control & intent to exclude others
Constructive Possession- law treats person as if he’s in possession although, in fact, he’s not or is unaware of it
Policy Reasons for protecting Possessors
Efficient way to protect ownership since ownership may be difficult to prove
Prevents disturbing public peace and order
Facilitates trade
Gives effect to the expectations of a person who has asserted a right in a thing until another person comes along w/ a better right
In cases of person capturing wild animals or finding lost property- rewards them for making a useful item available to society
Protecting possession is an easy and efficient way of allocating resources

2.Wild Animals

Gaining Constructive Possession- mortally wound or trap an animal or fish
Wounding- wounding the animal not enough; must deprive the animal of its natural liberty, either by corporal possession or by mortal wounding; i.e., so that capture is “practically inevitable”, but pursuit must be maintained- Buster v. Newkirk
Trapping- capture must be virtually complete; not necessary that there be no possibility of escape- captor acquires possession if he uses reasonable precautions against escape
Fish in A’s net, which has a small entrance, from which escape is possible but unlikely, are possessed by A. B who removes fish is guilty of larceny. State v. Shaw
Mere pursuit  property right- A pursues fox but is captured by B, B has rights and possession- Pierson v. Post
Policy- various reasons for the rule:
competition- society’s object is to capture these animals- foster comp. by rewarding capturer, not pursuer, bring more people into pursuit- Blackstone & Posner
Problem- May argue that if create property rights- have less hunters- create less incentives- how do you know which way will create incentive AND how do you know foxes need to be eliminated?
ease of administration- “certainty” – capture is objective act, easier rule to administer that protecting pursuit- Hobbes
Problem-rule that if animal is greviously wounded, have possession- this creates just as much uncertainty
keep peace & order- recognition of property rights leads to peace & order
Problem- promote peace by allowing people to take fox away from pursuer?
Form of action dictates what must be proven:
Trespass on the case  interference with the chase of animal (Pierson)
Trover allegation that another has found your property (Buster)
Trespass – Post would have had to prove that he already possessed the fox
Replevin action for repossession of property wrongfully taken
Trespasser’s title- trespasser’s title to killed or captured animal is inferior to that of land’s owner
Interference by noncompetitor- Person who doesn’t want to capture animal cannot interfere
Society wants animal caught
A puts out decoys on pond to attract ducks, neighbor B can’t shoot off guns to scare ducks away BUT B can shoot to kill ducks when fly over his land- Keeble v. Hickeringill
Differences b/t Keeble Pierson
Injury to interest in enjoyment of land
Injury to person’s trade
Maliciousness of actions
Competition- essence of distinctions
If you compete for same thing- its not a tort
If you simply interfere w/ business w/out justification of comp.- that’s a tort
Custom- custom in some hunting trades may allow hunters to acquire possession w/out exercising physical control over the animal
Whaling- possession to whaler which harpooned, even though animal sunk and discovered days later- Ghen v. Rich
Policy- advanced killing of whales, allowed whalers to profit from labor
Reasons to look to custom
look to positive value of autonomy- don’t want to interfere w/ people- advantages of self-governance
also important is to protect people’s expectations- these come from custom- people conform their behavior around by custom
expertise of people w/in industry
Problems
people on outside- might not know rules, their expectations maybe different, their interests may not be protected
finder of whale - might not know rules- unfair surprise
chance industry acting self-interestedly- partisan way- fence off whales from the rest of the community
Regulation by State- State only controls the fish for regulating enjoyment and use; not enough property rights in fish to sustain an action- State of North Dakota v. Dickinson Cheese Co., Inc
Escaped Animals
Wild Animals w/ Animus Revertendi (habit of return)- captured wild animals that develop a habit of return continue to belong to the captor when they roam at large- domesticated animals are valuable to society & this effort to tame wild animals is rewarded
Escaped Wild Animals- if captured wild animal that has no habit of return escapes- captor loses possession
Policy- want to encourage recapture
Exception
Animal has marking- brand?
Animal is not native to the area- NOTICE of possession given

3.Acquiring Possession by Finding Articles

General Rule- Owner of property doesn’t lose title be losing property- rights persist even though article has been lost or mislaid- finder has rights superior to everyone but the true owner
Prior Possessor Wins- applies to personal and real property- justifications for rule:
protects owner- who has no indicia of ownership (title papers, etc.)
need to encourage bailments- efficient practice, don’t want to discourage by allowing bailees to seize unless finder able to show ownership rights
ex.- A finds jewel who takes it to get appraised, jeweler refuses to return, A is entitled to jewel (replevin) or money value (trover) - Armory v. Delamirie
incentive - want people to pick up lost objects & get back in circulation
maintain public order- allow peaceable possession
Relativity of title-if finder subsequently loses property- his title remains superior to that of the next finder
ex.- A finds logs and secures, later break free and found by F, A didn’t abandon & has title over everyone except rightful owner- Clark v. Maloney
What constitutes possession- for finder to become a prior possessor, the finder must acquire physical control over the object AND have an intent to assume dominion over it
ex.- A discovers shipwreck at bottom of river & marks w/ buoy but never returns, F comes months later and salvages, F prevails b/c A only shown intent NOT sufficient acts of physical control- Eads v. Brazelton
Apply Ghen? – ct. rejects application, feels best way to encourage immediate salvage is by ruling that only way to get possession is by placing salvage boat over wreck
Unconscious possession- person may constructively possess something of which she is unaware if she is in possession of premises where article rests- entitled to “prior possessor wins” rule
ex.- A (landowner) is in constructive possession of objects located under surface of her land even though she is unaware of objects, B (hired to clean out pool) finds ring, A entitled to possession even though didn’t know ring was there- South Staffordshire Water Co. v. Sharman
NOTE- rule not widely followed in U.S.
general rule - finder’s possessory to a lost chattel found when finder was on another’s property w/ consent- generally superior to that of the property’s owner HANNA v. PEEL
no consent- trespasser not entitled to possession- Barker v. Bates
Finder vs. Owner of Premises- arises where finder finds object on owner’s premises which owner doesn’t own the object- cases in conflict
Finder is trespasser- owner of land where object is found always prevails- Barker
Finder is employee- some cts. argue employee is “acting for” an employer or has contractual duty to report object to the employer
ex.- Sharman
NOTE- rule followed in G.B.- not in US
NOTE- NY statute- misdemeanor to not seek rightful owner- applies even if finder isn’t employee
Finder is on premises for limited purpose- Sharman
Object found under the soil-if object found under or embedded in the soil, it is awarded to the owner of premises not to finder- (prehistoric boat- Elwes v. Brigg Gas Co)
Exception- 1) gold, silver, or money; 2) concealed w/ intent of returning to claim it- cts. divided, some give to owner others to finder- (owner of land- Favorite v. Miller)
Object found in private home- usually awarded to the owner of the home
Rationale- owner has intent to exclude everyone & admit persons for only limited purposes (not fishing for lost property)
Owner not in possession- if owner of house not moved into house, owner of house isn’t in constructive possession of articles therein of which he’s unaware
Ex.- O owns home that never occupied & is requisitioned by govt., soldier finds lost brooch, soldier entitled to brooch since O never had physical possession of house- Hannah v. Peel
Object found in public place- cts. resolve dispute by determining whether item was “lost” or “mislaid”
Lost- property owner accidentally & causally lost- goes to finder rather than owner of premises
Ex.- wallet found on floor of barbershop- lost & belongs to finder- Bridges v. Hawkesworth
Mislaid- property intentionally placed somewhere & then forgotten- goes to owner of the premises
Ex.- pocket mislaid on counter- goes to owner of shop and not finder- McAvoy v. Medina
Rationale- facilitate return of object to true owner- assumed owner who mislays object will remember where mislaid & return to reclaim
NY Statute- abolishes distinction b/t mislaid & lost- encourage finders to turn in
Have to turn over found prop. to police (stick) & if no one claims- finder gets to keep (carrot)
Promote chances prop. end up in hands of true owner

4.Bailments

Definition- bailment is rightful possession of goods by one who is not the owner- bailee has duty to care for goods & deliver them to owner
Bailor = true owner
Bailee = person in possession
Creation- alleged bailed 1)must assume actual physical control, 2) w/ intent to possess; cts. look to expectations of parties to determine whether liability would be unexpected or unfair
Actual physical control- bailee must take actual physical control of object
Parking lot cases- Is bailee liable for car owner’s loss or damage?
Park & lock- O parks & retains keys
Older cases- no bailment
Modern- bailment created- Allen v. Hyatt Regency-Nashville Hotel
Attended lots- O leaves keys w/ attendant- bailment created- expectations for B to exercise reasonable care
Policy argument- Garage owner in better position than owner since he’s not around to prevent the harm- sidestep technicalities of bailment law to put onus in party in best position
EXCEPTION- bailee likely not liable for theft of items in bailor’s car that was bailee was unaware of (wallet on seat of car- Swarth v. Barney’s Clothes, Inc.
Intent- bailee must have intent to exercise physical control & bailor must intend to give up right to possess the object
Value undisclosed to bailee- if bailor gives article to bailee but doesn’t disclose exceptional value of article, bailment still created- risk of caring for article in its true value is put upon bailee when he accepts possession of article
Ex.- O gives ring A to hold until B claims, A does so but doesn’t realize ring is valuable, A neg. loses ring and liable for loss since bailment created- Peet v. The Roth Hotel Co.
Liability- bailee is liable to ex. due care since in better position to protect
BUT- degree of care ex. depends on value of item
need to know how much knowledge is necessary in order to meet the intent standard of possession
if imposing on person a burden- high degree of knowledge required before imposing obligation on the basis bailee best person to protect against harm
Rights and Duties of Bailee
Rights against 3rd parties- as against 3rd party, bailee entitled to full damages resulting from wrongdoing by 3rd party
Rights of bailor- bailee may recover from 3rd party wrongdoer, but bailee is liable to the bailor for amount recovered; 3rd party’s payment to bailee is  against claim from bailor- The Winkfield
Duty of bailee to exercise care- all bailees are under duty to exercise care over bailed goods, but standard of care varies w/ type of bailment
degree of care maybe commensurate w/ who gets the benefit
Bailment for sole benefit of bailee- if bailment is for sole benefit of bailee – bailee required to use extraordinary care, liable for even slight neglect that results in goods being lost, damaged, or destroyed
Bailment for mutual benefit of bailor & bailee- bailee must exercise ordinary care and liable for ordinary neg.
liability depending upon nature of loss of property
negligence standard- loss, theft, damage
strict liability- misdelivery (Cowen v. Pressprich)
Duty to redeliver- if bailee misdelivers goods to wrong person, held strictly liable for loss
Exception- involuntary bailee liable only if bailee was negligent in delivering goods to the wrong person- gratuitous agent liable for not exercising ordinary care when intervening
Ex.- A’s agent brings bond to B’s office & drops through letter slot, B notices wrong bond dropped & calls for A’s agent, C steps forward & B gives to C, B liable for not exercising ordinary care- Cowen v. Pressprich
Contractual Modification of Liability- cts. permit contractual limitations provided they don’t relieve bailee from gross or willful negligence- BUT bailor must consent, terms must be made known to him & he must understand them- Carr v. Hoosier Photo Supplies, Inc.

5.Adverse Possession

Doctrine- obligates title holder of land to eject, w/in a statutorily prescribed period, a wrongful possessor land- if owner fails to do so, his claim will be barred & the adverse possessor may acquire title
Effect of adverse possession- terminates owner’s title and creates new titleadverse possessor
Purpose of doctrine
Protect title- protection of possession may protect ownership since title may be difficult to prove
Bar stale claims- require lawsuit to be brought to oust a possessor while witnesses’ memories are still fresh
Reward those who use land productively
Honor expectations- giving effect to expectations is policy running all through law of property
Requirements of Adverse Possession – to establish title by adverse possessor must show 1) an actual entrygiving exclusive possession that is 2)open and notorious3)adverse & under a claim of right, and 4)continuous for the statutory period
Actual entry giving exclusive possession
entry requirement- primary purpose of entry requirement is trigger the cause of action
exclusive possession- adverse possessor can’t be sharing possession w/ the owner nor w/ the public generally- ensures owner alerted that adverse possessor is claiming ownership
Open & notorious possession
use reasonable % of claimed land
use land in manner similar to that of typical owners of similar land
use is sufficient to put true owner or community on notice of possession
Minerals- adverse possession includes possession of minerals unless minerals have been severed from land by sale prior to entry- to start adverse possession, possessor must start removing them
Adverse and under a claim of right
w/out owner’s consent- possession not simply subordinate to owner; not allow owner to be lulled into believing occupant will make no claim against
objective v. subjective test
objective test- look to actions of possessor to see if they look like claims of ownership, person can be adverse possessor even though he’s not actually claiming title against the true owner
subjective test- (more widely used) adverse possessor must have a bona fide or good faith belief that he has title- (adverse possessor’s possession not hostile since recognizes owner’s claim on 2 occasions- Dillaha v. Temple)
color of title- claim founded on a written instrument (deed, will) or judgment which unknown to claimant is defective & invalid
where person enters w/ color of title, no further claim of title or proof of adversity is required
Continuous uninterrupted possession
definition- degree of occupancy and use that the avg. owner would make of particular type of property
purpose- give owner notice
seasonal use- use of summer home only during summer for statutory period is continuous use- Anderson v. Cold Spring Tungsten, Inc.
tacking- time in possession of successive adverse possessors may be added together to fulfill the statutory period when 1) possession is continuous; 2) parties are in privity
privity of estate- possessor voluntarily transferred to subsequent possessor either an estate in land or physical possession
where transfer isn’t voluntary- no privity of estate
tacking on ownership side- when owner transfers land adversely occupied, transfers same cause of action against adverse possessor, new cause of action against adverse possessor doesn’t accrue w/ new owner
BUT look to see if subsequent owner is remainderman- if so, has new cause of action (no tacking) since old life estate terminates
look to see when entry occurred- if occurred during period in which land owned by indiv. who conveyed to life tenant and remainderman- SL likely to expire since remainderman derives interest from orig. conveyance and & cause of action tacked back from then
payment of property taxes- several western states require adverse possessors to pay taxes on land in order to prevail
Disabilities of Owner- typical statutes give additional period to bring action if owner is under a disability
Typical statutes
disabilities usually limited to minors, insanity, & imprisonment
only disabilities at time of initial entry- only disabilities of owner at time of adverse possession begins count- Fleming v.