A. Personal Property

Property

Wild Animals (ferae naturae)
Possession of a wild animal requires:
physical control (occupancy)
can be met by mortal wounding and continued pursuit
trapping animal so as to deprive it of its natural liberty can be sufficient
cornering an animal rendering escape impossible can suffice (Liesner v Wanie: cornering a wolf)
Pursuit alone is not sufficient
Depriving it of its natural liberty
Intent to possess
Superior claim ratione soli
A visits B, catches fox on B’s property. B sues A to recover fox. B wins ratione soli.
A starts fox on own land, chases and captures it on Bs land. B claims fox ratione soli, A claims on pursuit and capture. A prevails but is liable to B for trespass.
A starts fox on Cs land, but captures it on Bs land. Possibilities: lawsuits between A & B, or A & C.
Animus revertendi
an animal trained to return does not become ferae naturae immediately upon leaving its enclosure
But if it does not return, it does become ferae naturae again
If an enclosed animal—like deer—escapes and is immediately chased, it remains in the possession of the encloser
Marked animals remain the possession of the marker unless they stray far and don’t return
Bees become property when they are hived, and remain property if they are swarming
(Tame animals are treated differently)
CASES
Pierson v Post: Pierson steals fox Post was chasing. Ruling for Pierson because pursuit is not occupancy. Important issue that the chase occurred on unowned land.
Trespass on the case: action to recover damages that are not the immediate consequence of an act but an indirect result of it. Squib case.
Buster v Newkirk: P wounds deer, follows it, gives up for the night, the next morning found that D had killed deer. P did not wound deer sufficiently to deprive it of its liberty. Imp issue: that P gave up pursuit.
Trover: action to recover damages for the conversion of personalty
Keeble v Hickeringill: D scared ducks away from Ps duck pond. P did not have possession ‘to count’ the ducks, but he had possession ratione soli and due to the pursuit of his trade, ergo had intent to possess. (Example of rival schoolteacher. Is it different if D sets up own duck pond, or if he shoots gun from a public road?)

Dapson v Daly: P shot a deer but not mortally, but D killed it and carried it off. P never acquired possession because his shot wasn’t mortal and even if it had been, he had no license to hunt. Doesn’t matter if D had license b/c P had burden of proof to show his own right.
Replevin: action to recover chattel
State of Ohio v Shaw: Shaw steals fish from trap. Traps are not totally escape proof and trap owners not present. Was there possession? Fish were confined enough such that they would be there if owners came for them and were there to be stolen. Refinement of Pierson v Post. [Does it matter that D had to interfere with nets?]
Ghen v Rich: custom of killing whales with bomb-lances that identify killers when whales wash ashore. Respondent bought whale from finder who took whale killed by L. Case determined by whaling custom, not by common law. Custom legitimate if
immemorial usage
unanimity in its observance
in general usage throughout an industry
custom was reasonable
Libel: to sue in admiralty court.
State of ND v Dickinson Cheese Co:D discharged whey into a river killing fish and damaging the environment. Can state collect damages for the fish lost? State only has sovereign interest, not ownership in fish ferae naturae. As sovereign it can regulate how the fish will be reduced to ownership but does not have property rights upon which it can support an action for damages.
Res nullius: belonging to no one, usual state of animals ferae naturae.

Property as Real or Personal
Personalty: “Personal property:” “Any movable or intangible thing that is subject to ownership and not classified as real property.”
Real property: “Land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land. Real property can be either corporeal (soil and buildings) or incorporeal (easements).
Differences between real and personal property:
Personal property can be transferred orally, real property can’t
Statute of limitations have different lengths
Form of action is different
Succession at death is different
CASES
Haslem v Lockwood: P gathered manure found on a public highway into piles intending to remove it the following day. Before he could, D removed the manure piles. The borough has fee of the highway. Neither P nor D had permission from borough to remove the manure. Manure ruled to be personalty, which is important because personalty can be abandoned, realty can’t. Abandoned personalty taken by first finder. A hard case because manure on a farm treated like realty. P took occupancy when he put in labor to improve the value of the manure by gathering it into heaps. Decision refines occupancy to allow for a reasonable time to leave the property in order to arrange for its removal: 24 hours. D took manure within that time and therefore violated occupancy rights of P.
What if borough challenged possession of manure? Borough holds fee of road, but not likely to succeed ratione soli because highway is not private property; borough does not regulate access to it.

Fixture hard cases: sconces on wall? Grain on a farm? Shrubs on land?
Fixture: an item attached to a freehold of land that passes with the land even though it is chattel.
Fructus naturalis: trees, e.g.
Fructus industrialis: product of the industry of the occupant of the land, crops, e.g.

Goddard v Winchell: P owned farmland. The grass rights were leased to James Elickson. A meteorite landed on P’s farm and buried itself 3 feet in the ground. Peter Hoagland in the presence of Elickson dug up meteorite claimed it to himself on account of having found and dug it up. Hoagland sold it to D. Meteor is realty because affixed to the land. As part of the earth, it was not unclaimed, lost, abandoned property available to be reduced to possession by the first finder. [It did not matter that P didn’t know of presence of meteor, that P was not in possession of the land surface at the time, or that Hoagland did the work of digging it up.]

Abandoned Property
One retains rights in chattel until manifesting intent to abandon.
Devices for determining abandonment
Presumption because it’s not been claimed
Problem: what if not claimed because limits of technology make it impossible, not because of lack of intent?
Statute of limitations for recovery of an item
Problem: statute doesn’t begin to run until 3rd party tries to take item
RULE: “The occupation or possession of property lost, abandoned or without an owner must depend upon an actual taking of the property with the intent to reduce it to possession.” But taking doesn’t have to be manual. Don’t have to have it actually in hand.
Eads v Brazelton: P found wreck in river. Marked wreck with buoy and on land. Circumstances preventing him from beginning to raise the wreck, but claims to have remained in neighborhood and to have continually asserted his rights. Meanwhile D began to raise wreck. Not clear if D knew P was intending to work on wreck. Buoys indicate intent but not possession. P would have had to put boat able to raise the wreck over the wreck, keeping a guard over it to indicate to intruders that P was occupant of wreck.
Finder’s Rights
The finder of lost property holds it in trust for the benefit of the true owner, as a bailee
Finder has rights superior to those of everyone except the true owner, even if he loses chattel
Lost property (involuntarily parting where owner had no intent to part with it and doesn’t know where it is) goes to finder.
Abandoned (voluntary relinquishment of property) goes to finder.
Mislaid property (intentionally put somewhere by owner where he can control it but then forgotten) goes to owner of locus in quo.
Problem: this assumes ability to discern intent of the owner.

Rule for embedded property: except in the case of treasure trove (“any gold or silver in coin, plate, or bullion found concealed in the earth or in a house or other private place”), embedded property presumed to become possession of owner of the land not the finder.
Armory v Delamirie: chimney sweep boy finds jewel, is defrauded by jeweler, can maintain action of trover because finder has superior title to all but true owner.
Clark v Maloney: P found floating logs, anchored them. Logs float away, D takes possession of them. P may maintain action of trover because finder has possession, possessor who loses chattel does not lose rights of property
Different rule from Pierson v Post because here there is a rightful owner.
Does not matter how P or D came to acquire logs
P had to have exercised actual control over logs
Doctrine of accession and specification: if D had cut logs into boards P cannot recover value of boards because there had been a change in species, allowing no recovery except for original value unless thing can be put back into original state.
Barker v Bates: timber was driven ashore, apparently thrown overboard off a ship, and considered abandoned. P owns land as freehold where timber washed up. D took possession of it from P’s land in trespassing on the land. No one has claim b/c abandoned, P gets timber in part because of trespass and in part ratio soli.
South Staffordshire Water Co v Sharman: Employee cleaning pool fully owned by P discovers gold rings. P gets rings b/c possession of land carries with it possession of everything attached to, under, and anything in which there is absence of better title, so presumption is that possession falls to the owner of the place where it was found.  But see Hannah v Peel which understands this as applying only to employees.
Hannah v Peel: P finds brooch in house which P owned but in which he had never lived. Here rule is not clear:1) a person possesses whatever is attached to or under his land. 2) But a thing lying on the land is not necessarily possessed by owner of land. In this case, brooch was lost; it was never possessed by occupancy by D.
Bridges v Hawkesworth (QB, 19th cent): money found in shop by traveling salesman, found to have been lost because left unintentionally (as opposed to misplaced) and therefore the possession of the finder except against real owner.
Favorite v Miller: pieces of stolen statute of King found on private land without permission of owners. P did not know statute was there, did not find out what D had done until reading about it in newspaper. Not lost, abandoned, mislaid property. Trespass is significant b/c “a wrongdoer should not be allowed to profit by his wrongdoing.” And statute fragment was embedded in land and that gives presumptive rights to land owner even if he did not know it was there.

Bailments
transfer of rightful possession of personal property from owner (bailor) to a person who is not its owner (bailee) for a limited purpose.
Chose in action: def #3 “Personal property that one person owns but another person possesses, the owner being able to regain possession through a lawsuit.”
requires possession of property by the bailor and deliverance of property to the bailee
requires explicit or implicit contract between bailor and bailee
requires acceptance by the bailee
Bailee has to know what the object is that he is caring for
Test of knowledge of object is not outward appearance but what bailee should expect given nature of the circumstances
(qualified) possession is transferred from bailor to bailee such that the bailee can sustain an action against anyone who deprives him of object
Liability
Mutual benefit/non-gratuitous bailment: If the bailment is beneficial to both parties, the bailee must use ordinary diligence to protect the bailed object from damage or loss.
Sole benefit of bailor/gratuitous bailment: If the benefit is solely for the bailor’s benefit, the bailee is liable only for gross negligence.
Sole benefit of bailee: If the bailment is solely for the benefit of the bailee (i.e., the bailor lends the object to the bailee for the latter’s use), the bailee is required to use extraordinary care in protecting the goods from loss or damage (but he is still not an insurer, and is liable only if some degree of fault is shown).
Not a bailment: money in a bank (b/c don’t return exact same money), door-to-door salesman (an agent, doesn’t have possession of the goods), chattel mortgage (buying car on time, e.g., as long as you make payments, you keep the car), lease, self-storage, pledge, license, conditional sale, trust.
Peet v The Roth Hotel: P left ring with cashier of Roth Hotel for delivery to a guest the Jeweler Hotz. P showed the ring to the cashier who put it in an envelope, ring was then lost. D liable b/c there was mutual consent and b/c because it knew it had a ring thus it knew what it had responsibility for, and as bailee it had the duty to exercise reasonable diligence in its care. It did not matter that the bailee did not know how valuable the ring was.
Allen v Hyatt Regency: P parked and locked car in attended lot. P retained keys, needed ticket to get out. Car was stolen. Majority finds bailment b/c D had control of garage (not an unmanned outdoor lot) & P can assume D would protect car. Dissent says no bailment b/c no delivery, no acceptance by bailee, no passing of possession.
Bailment for hire: “A bailment for which the bailee is compensated.”
Swarth v. Barney’s Clothes: P parks in Ds lot, leaving keys with attendant, leaves wallet in car. Wallet is gone when P returns. There was a bailment for the car but not for any item which one would not customarily find in the car and which the bailor did not specifically call to the attention of the bailee. There has to be actual or constructive acceptance by bailee.
Cowen v Pressprich: brokerage firm runner brought wrong bond, D’s agent realizes this, calls for a runner, an unknown runner comes, steals bond. Is D liable as involuntary bailee? As long as the involuntary bailee continues to show no volition to enter into bailment, he is not under duty to care for or guard the object and can’t be held negligent or liable. However, as soon as bailee exercises any kind of dominion over object bailed, he assumes the same responsibilities as a voluntary bailee. By accepting and trying to return bond, D’s agent exercised dominion over it and therefore became like a voluntary bailee. Dissent: if someone comes into possession of a bailed object through no express or implied consent, they are not responsible to the true owner.
Constructive bailment: “A bailment that arises when the law imposes an obligation on a possessor of personal property to return the property to its rightful owner, as with an involuntary bailment.”
Involuntary bailment: “A bailment that arises when a person accidentally, but without any negligence, leaves personal property in another’s possession.” If the involuntary bailee doesn’t return the property, he can be liable for conversion.

Gifts: key issue is delivery
Gifts Inter Vivos: in order to transfer property by gift there must be
intent on the part of the donor to make a present transfer
either a deed or instrument of gift, or there must be an actual delivery of the thing to the donee,
acceptance by donee.
Where a gift is of value to the donee, the law will presume an acceptance on his part.
There must be change of possession via actual or constructive delivery
There must be an actual and irrevocable present transfer of ownership.
Oral statement of gift is not enough
Delivery must conform to thing, so symbolic delivery suffices for something that cannot be physically delivered.
Symbolic delivery: delivery of something representing the gift, or of something that gives the donee a means of obtaining the gift
The possession can be constructive, that is the donor can continue to hold the property after it has been transferred
The donee’s possession doesn’t have to be continuous
There doesn’t have to be manual delivery, though delivery is essential
Irons v Smallpiece: P claims father made verbal gift of two colts, but these remained in his father’s possession. A few days before his death, the father furnished son hay for the colts at a stipulated price as he had promised to do 6 months before. No transfer of property, so no gift.
Gruen v Gruen: Father writes son [P] a letter on his 21st birthday telling him that he wishes to give him a painting as a gift but wants to maintain use of it for life. The son never took manual delivery of the painting, and it remained with the father until he died. There was transfer of possession and retaining life estate doesn’t change that.
In re Szabo: shares of stock, transfer not completed by company before death of donor. Stocks only transferred when changed in the stock books of the company. Death automatically revokes the agency to make the transfer.
Not Gifts: trusts, testaments, contracts
Gifts causa mortis
there must be intent to make present transfer of the gift
the gift must be of personal property
the first must be made while donor is under apprehension of imminent death, with understanding that donee will possess gift when donor dies, if the gift has not been revoked before then
donor must die of the peril contemplated not something else
possession of the property must be delivered at the time of the gift
gifts causa mortis may be revoked if the donor does not die of the contemplated peril. Donor’s death makes gift irrevocable and gift becomes valid before will becomes effective.