I. Wild Animals
A.Pierson v. Post – Whose Fox Is It Anyway?
If you catch a wild animal, its yours, if you don’t then its not. Possession is important.
Look to malice, competition.
1.3 Categories of Law
There are 3 purposes to having any law. Thinking about policy considerations:
1)Certainty, repose (Hobbes)
2)Incentives (Blackstone)
3)Just Desserts (Locke)
2.The Case/The Rule
Post was chasing the fox, Pierson catches it. Post loses. He never occupied it or made it his possession. BUT, if you have the fox it is yours. {Dissent Rule You have to be within reasonable reach}
a.How they decided it:
There were no statutes or precedents. So they looked to the ideas and principles of law.
Locke – As long as you chase the hare, it is yours
Do you need possession (Puffendorf), or not absolute possession/grievously injure the animal (Barbarack).
Court does not take Puffendorf that you have to have the animal in absolute possession.
3.Issue of Certainty, Peace and Order
Could have certainty on either side of Post’s proposed rule. {The moment you flush the fox its yours}.
On Pierson’s side – Puffendorf; must have your teeth sunk into it
On Post’s side – Locke – the moment of engagement
Peace and Order – seems to go against Pierson. It is not conducive to neighborly relations to let one person wear out the fox and then allow someone else to take it.
4.Incentives
Foxes are bad, incentive to kill foxes. Blackstone’s basic argument. We want people to do socially beneficial thing. So we want to encourage people to hunt foxes. (L&E).
So what rule will give you the result that you want?
B.Variations
1.Cage
Post puts the fox in a cage. Pierson takes it out.
Post should have it. He did the work, there is certainty, there are incentives to cage the fox.
2.Cage – Fox Escapes
Post puts fox in cage. Fox escapes. Are property rights lost once escapes?
Blackstone – animal is wild. If it returns to being wild then it is wild
This makes certainty
Incentives – 1) Build a stronger cage; 2) we don’t want the fox free, so let people hunt it.
3.Branded
Post brands the fox with name “Post”
It should belong to Post. But how far do we take this. The incentive is up to Post to get other to help him.
For Pierson – There is no expectation that it is his for the taking. It is not wild because of the marking.
4.Bald Eagles/Elephants in Oak Park
Bald Eagles: Different rules than foxes. Look at policy considerations. This law was for noxious beasts. If you don’t want the animal captured then there should be a different rule.
Elephants: You know it is not wild, there is an owner. You know someone has captured it. As in branding, there is no expectation that it is yours for the taking.
5.Pierson Captures Fox on Post’s Land
Can consider such questions as whether Pierson knows or not; whether he followed it onto the land or not. (But see end of this ¶)
POSSESSION – physical control with the intent to exclude others.
So, Post doesn’t own the fox until he reduces it to possession, and Pierson can take it.
Counter – Trespass is illegal and you can’t gain from an illegal action
Trespass doesn’t require knowledge or malice, it does not matter if he followed or didn’t.
6.No Hunting License
The Capture law is affected by the hunting laws. Only a licensed hunter is entitled to capture laws.
7.Other Resources/Capture Laws
This basically goes to the idea of incentives. How one community solves their incentives may be very different from how another community solves a similar but slightly different problem.
Must look at the kind of property it is. Look at incentives.
a.Water by the Thames
You can take a little water but not too much. Rejected the capture rule – no desire to eliminate water.
b.Water in Arizona
Want to encourage irrigation. Under the English law, then there is no incentive to go to Arizona and get first rights. Problem with upstream guy taking away from previous downstream guy. Rule is one of prior appropriation – resembles the wild animal rule. If you go and take the water before, you can continue taking it forever. The first person to put the water to beneficial use as the right to do so in perpetuity.
c.Coal
The coal is found in the ground and someone owns that ground. Don’t need to leave it to first come. Coal doesn’t go anywhere. It is part of the land, the owner can either make the money from it or sell his land for more money.
d.Oil and Gas
Oil Moves. So we are not sure that B is only taking their own property, may be taking from A’s property as well. Don’t want over-extraction, or exploitation. So there are limitations of how much you can take even from your own. There are statutory rules superimposed.
C.Winning Without Possession - Business
(Keeble v. Hickeringill)
Post didn’t have to argue trespass, or ownership.
1.Facts/Overview
owns a decoy pond. shoots to scare the ducks. The ducks go away. Verdict for .
didn’t own the ducks, he didn’t possess the ducks.
2.Interference
interfered with ’s lawful use of his pond, limited his employment. Any man has the right to use his property to get ducks. So, this is not a trespass, it is an interference in the use of land.
3.Distinguishing from Pierson
It wasn’t on Post’s land
Counter – Could argue that there was a trespass here. The facts are not so specific
BUT, even if was a trespass, that was not the court’s decision. Even if there wasn’t a trespass, there was an interference.
4.Incentive
We want to give encouragement there to catch ducks (Although some of us may disagree with this )
This was a business, and want to encourage the occupation (treating occupation as property, protecting both).
5.Unfair competition
There was malice in Keeble as in Post, and we don’t want to allow unfair competition. BUT, competition is generally good as in the school example. Pierson is able to keep the fox because of competition.
In Keeble, there was only malice, no competition.
No Malice and Competition – No recovery
Malice and Not Competition – Recovery
D.Winning With Out Control - Custom
(Ghen v. Rich)
1.Facts/Overview
There are competitors who hunt whales and end up putting marks on the whales. Ghen shoots a whale, the whale sinks and is discovered by Ellis. Ellis sells to Rich.
2.No Control? Basic Rule
The basic rule is that mortally wounding an animal with out abandoning the pursuit is enough. But, here there was an abandonment. Some cases say that you need to bring it in to control. Here, there was no control. The Animal was never caught.
3.Other Precedents Abandoning Basic Rule
Taber – kill a whale and catch it and anchor it. Once you catch it, you own it. It is kind of like an escaped and marked animal. BUT, this is not escaped, it is dead. Dead animals don’t run away. Incentives are different.
Swift – the harpoon holds the whale. But, in Ghen there is no way for the Swift way of capture to work. As in Western Water, there needs to be different rules to keep the industry alive.
4.Rules/Incentives
Want to keep the industry alive. If the Barbyrac rule was alive (must mortally wound and ring under control), then the whale could never be caught.
Like water/oil, the courts modify the common law to better serve the purpose.
5.Custom
Pros – 1) the industry knows about whales, the court will get their knowledge from the industry anyway. 2) If the industry knows the customs, they have formed a K together. There is autonomy and fulfillment of their expectations. 3) They can handle their own affairs. If they can handle it themselves then it is cheaper.
Main concerns are: autonomy, protection of expectations, expertise.
Cons – 1) Might not be in the interest of society (not here), 2) Could be a guild/interest group, and they are only protecting their own interests. 3) Could be an argument between certainty and bad rules.
E.In General – Wrap Up
1. Gain Possession
Wild Animals are not normally owned by anyone. So once a person has gained possession he has right in that animal
2. Chasing is not enough (Pierson)
3. Trapping or Wounding
One who mortally wounds an animal so that capture is certain is deemed to have possession. Similarly the catching in a trap is sufficient. But the capture must be virtually complete
4. Business Competition
The courts will be more sympathetic to interfering if he acts out of business competition rather than malice. See Keeble
5. Custom
Courts look to the customs or usages prevailing in the activity or trade involved.
II. Finders
A. Finder Has A Right vs. Anyone Except the Owner
1.Armory v. Delamirie – Jewel
finds a jewel, takes to a goldsmith’s shop (Delamirie). The goldsmith’s apprentice took it to weigh it and wont give it up. wins, should get the property back. (Replevin, Detinue)
2.Policy Considerations
Incentives to pick up objects and put them back in circulation.
Just Desserts – I put forth the effort, so I should be able to get it. Fairness
Certainty – clear rule for possession. Prevents squabbling.
But an owner may offer rewards for an object for incentives, or the law may provide a stick if you ignore the reward.
Maritime Law – there is a legal right to a percentage of the property of property found at sea and returned.
3.Hierarchy
There is a clear hierarchy. Owner, 1st Finder, 2nd Finder, etc.
The 1st finder, even the finder who loses it can win over a later finder (Clark). But, the finder doesn’t own it, the owner still owns it and has a claim against the finder. The finder holds it in trust for the owner (like a bailee).
In contrast to Wild Animals, there is a previous owner, they retain their property rights, but through possession, the finder gets the rights against all but the rightful owner.
This applies to real property: even though I am a trespasser, I kick another off the land since they are the second trespasser.
a. Even Bad Guys Win
Even if the possessor obtains the item wrongfully, his rights are superior to those of anyone except the true owner
4.Different from Wild Animals
1) A wild animal never had an owner, but in lost objects there was a right owner.
2) Expectations are totally different when you find a wild fox or a jewel. Unless the fox was marked, you do not expect that there was a prior owner. Live up to expectations.
3) This is somewhat like a marked wild animal. Consider the interest of both parties.
5.Possession
Possession is still important. Not enough to start to the jewel, must have possession. (Maybe if you have done all that is practical, then maybe its enough).
- Has to Have it in Control
- Intent to Exclude
6.Abandonment
If owner abandons then they give up their right.
B. Finder v. Land Owner
1. Hannah v. Peel – the soldier
Hannah was a soldier stationed at Peel’s house. Hannah found the broach brought it to the police. Police gives it to Peel. Hannah wins – he was the finder. Peel was never in possession. Finder wins (Armory)
2. To Argue Hannah’s holding – (its an English decision)
Because it is Peel’s house. A landowner owns what is on his land.
Counter – he was not in possession of the land at any point. The landowners claim is based on his possession of the land. Wild animals move and so you can’t have possession since it can move on its own.
a.Possession theory – control to keep others out. The land owner is in control of everything on his land but how can the landowner have the intention to keep others out. (Doesn’t work in Hannah since the landowner was never in possession of the house.
b. Similar to wild animals – Hannah has violated Peel’s exclusive right to hunt for jewels on his land. The lease might be only to live there and not to hunt for animals or broaches.
3. RULE
Land owner wins if: the party was a trespasser, employee of landowner, buried in the land, if property is deliberately put down and forgotten (mislaid and not lost).
Finders keepers except to those who have a previous claim – land owner has a prior claim – it was on her land.
a.Bridges – Lost Property. Finder wins
Money found on floor of shop.
If I am on your property and I find something that was lost, I get to keep it if you never obtained possession of it.
b.Barker – Trespasser - landowner wins.
c.Sharman – landowner wins. EMPLOYMENT SITUATION
If a man finds a thing as the servant or agent of another, he finds it not for himself but for the other.
d.Limitations to Sharman
In US – the employee has some rights to what he finds. For example: if he thinks of a song while working.
e.Elwes – Affixed to Land - buried boat – landowner wins
The buried boat was part of the land, the landowner owns the land. Distinguish Sharman
You have what is buried (sure this can be difficult – is there a difference between rocks and diamonds and something that was dropped on the and buried over). So issue of treasure trove. In England – valuables intentionally buried materials never reclaimed by the owner belongs to the state. In US consider this “mislaid” under the normal rules of McAvoy.
f.McAvoy – Mislaid property. Landowner wins
Wallet was left on the table, where it was intentionally placed. The property is mislaid – not lost (as in Bridges)
The courts make this distinction between mislaid and lost property. When the owner intentionally places it in a certain place, and the forgotten is mislaid.
WHY? – the owner will probably come back to get it. We want to make it easy for the owner to be able to get back his property. Still belongs to the owner.
WHY NOT LOST AS WELL? – the owner that loses it is less likely to remember where is was left. So if you can prove that it was mislaid and not lost – then McAvoy rule applies.
4. Policy
As in Hannah – want people to turn things into police.
Works for the mislaid and lost property. NY statute gives the incentive to the finder to turn it in.
Some states require to turn over to the police/owner, and then after a time it is yours.
Perhaps it is more valuable to keep it. Carrot/Stick issue
III. Bailments
A. Definition
It is a transfer of possession, not a transfer of title. Involves a K, an offer an acceptance. A bailment is the lawful possession of personal property of one who is not the owner.
1. Causes of action:
Trover – to get the value of the property back. {Of course we remember this because Trover is so valuable, even priceless – meow}
Replevin – to get the item itself back
2. In K Law
Parties can modify the bailment but there are limitations of what parties can bargain for (unequal bargaining power, etc.)
Need offer and acceptance – mutual assent.
B. Creating a Bailment
There are basically two requirements: control and intent to assume custody and control over it.
1. Need physical control
The bailee must come into actual physical control of the bailed property.
BUT, some courts have held (in parking lot cases) that the idea of control has two elements:
1)I can drive it myself (control it myself)
2)I can prevent others from doing it
So that only one may be necessary
In parking lot cases with a valet – sure there is a bailment.
In parking lot cases with an attendant – most likely there is an implied or express assurance of security.
But what about park-and-lock cases? The courts are somewhat split:
a.Allen v Hyatt Regency –
Issue – when it was parked did the owner of the parking garage have possession. They don’t really have control, they don’t have the keys, can’t drive it away.
Counter – although I can’t drive it away, no one else can
Counter-counter – Obviously someone can – it was stolen.
Policy – we impose liability on the parking lot because they are in the best position to prevent the theft.
So we say there was control since they can prevent others from taking it.
2. Need Intent – Undervalue doesn’t matter
The bailee must have an intent to possess the bailed goods. No thrusting allowed.
Sometimes there is an unconscious possession, the courts could come out differently for the case.
a.Peet – The Valuable Ring Mistake
deposited a ring with the cashier of the hotel. The cashier realized that what had been deposited was a ring but did not realize how valuable it was. Even though did not divulge the value of the ring, there was still a bailment.
b.Sample – coat check
Customer goes to a coat check, get a ticket. A valuable fur piece was stolen. The court says there was no bailment. Here, there were two items, and they weren’t alerted about the extra piece.
c.Rationalizing this
The bailee is in the best position (SBPS). So there is an obligation for due care. But, if the bailee doesn’t know that the object is there, then it would be unreasonable to take precautions to protect a piece when the bailee thinks it was just a simple coat. The degree of care that I should exercise is dependent on what I know is in it – or more probably what I should know. But, undervaluing something is not really a defense.