PROPERTY OUTLINE

PERSONAL PROPERTY – WILD ANIMALS

Pierson v. Post p. 1 – 3 Cai. R. 175, 2 Am. Dec. 264 (NY 1805)

FACTSPost sued Pierson in action of trespass on the case for killing fox he was in pursuit of on an uninhabited wasteland, called the beach. Post won. On appeal, judgment reversed for Pierson.

ISSUEWhat constitutes occupancy in terms of acquiring rights to wild animals

RULEIn order to own an animal farae naturae, 1) pursue w/ intention to appropriate animal for individual use (constant), 2)mortal wounding of such a beast, 3) render escape of animal impossible.

HOLDINGPost did not own fox because only in pursuit.

OTHERPuffendorf = German, 17th Cent., natural rights philosopher/jurist. = requires actual corporal possession

Burbeyrac = actual bodily seizure is not necessary to constitute possession.

Would lead to too many lawsuits to uphold Posts’s claim.

Buster v. Newkirk, p. 6 – 20 johns. 75 (NY Sup. Ct 1822)

FACTSNewkirk was hunting deer, shot it but deer ran on for 6 miles. N followed trail until night occasionally sighting blood. Next morning resumed pursuit until came to B’s house where deer had been killed night before. B cut deer’s throat. N’s dog laid hold of the deer about same time B killed it. N demanded venison and skin. B gave N venison but not skin. N brings action for trover.

ISSUE Who had legal ownership of the deer skin?

RULE Animal has to be deprived of natural liberty by wounding etc. so that he is brought w/in the power & control of pursuer.

HOLDING Animal was not under control of N b/c ran for 6 more miles & N abandoned pursuit.

Keeble v. Hickeringill, p. 8 – 11 East 574

FACTS Keeble possessed land w/ a decoy pond which he prepared and procured at his own cost. Hickeringill went to pond & discharged gun thereby frightening away wildfowl for 4 months. Suing for damages. H found guilty.

ISSUE Focus more on right to pursue an occupation than ownership of ducks

RULE when a man uses his skills to make a profit in his trade, an individual who violently or maliciously seeks to harm a man’s way of livelihood is legally responsible for damages incurred.

HOLDING H did maliciously try to take away K’s source of livelihood, therefore H is responsible for disturbance caused by wildfowl leaving decoy pond.

OTHER Court admits that could take wildfowl through fair means. Disagrees w/ malicious interference w/ trade

 Wants to protect those who fuel economy through their trade/skill

QUES.Would it have made a difference if Hickeringill was not a trespasser?

How do you distinguish this case from Pierson v. Post? Action was for maliciously hindering and disturbing  in the exercise and enjoyment of a private franchise on his own land (ratione soli)

Dapson v. Daly, p. 10 – 153 N.E. 454 (Mass. 1926)

FACTS Action of replevin.  and  were hunting, during hunting season,  fired shots at deer. As deer was galloping away,  shot and killed deer.  wants carcass of deer recovered. Jdmt. For .

ISSUE Did  have occupancy of the deer in question b/c he was pursuing and wounded deer during open season?

RULE In order to claim occupancy of a wild animal, huntsman must pursue animal and reduce its occupation to actual possession. Doesn’t matter if animal is wounded or how long huntsman has been in pursuit. Also have to be licensed to hunt in order to be entitled to rights of huntsman.

QUES. If person trespasses on another’s land and kills an animal, can they claim ownership of the animal?

State of Ohio v. Shaw, p. 10 – 65 N.E. 875 (Ohio 1902)

FACTS accused of grand larceny for stealing 730 lbs of fish. Got fish out of nets shaped like a tunnel that was at all times open. Find for .

ISSUE Did having the fish in the nets constitute occupancy?

RULE To acquire a property right in wild animals, the pursuer must bring them into his power and control, and so maintin his control as to show that he does not intend to abandon them again.

HOLDLING Fish were confined in nets which made escape practically impossible, therefore owners of nets had acquired property in them.

QUES.How about situation where fish are trapped in an inlet by a net laid along the length of the inlet’s mouth. Held that fish are still subject to capture, why?

Ghen v. Rich, p.14 – 8 Fed. 159 (Mass. 1881)

FACTSLibel to recover the value of a fin-back whale. Ghen shot and instantly killed whale w/ bomb-lance. Whale sunk and was found stranded in Brewster 3 days later by Ellis. Ellis advertised whale for sale at auction, sold it to Rich. Rich shipped off blubber and tried out the oil. 3 days later, Ghen heard of whale’s finding and immediately sent one of his boat’s crew to the place to claim it. Find for .

ISSUE Are the customary practices followed in the whaling business, a valid reason to uphold Ghen’s occupancy of whale?

RULE Can have occupancy even if you don’t have it according to Pierson v. Post rule if have possessed animal according to local custom in industry.

HOLDING gen did kill whale w/ lance and as is customary in this business, has ownership of the whale.

OTHERApplication of this holding is limited.

 Usage is customary and necessary to sustain this industry – no one would do this if anyone who found the whale could take it.

QUES.How is this like/unlike Pierson v. Post? Pierson about custom but custom didn’t support an industry, more about good manners.

State of N.D. v. Dickinson Cheese Co, Inc., p. 17 – 200 N.W.2d 59 (ND 1972)

FACTS Action to recover damages for value of fish killed as a result of pollution from Dickinson Cheese Co.  allegeing that all fish located in public waters in state are property of state and that  is responsible for such fish for the benefit of the people of the state. Complain dismissed.

ISSUE Does the state of ND have property rights in the fish that they can sue for damages?

RULE State has interest in the fish as a sovereign and not as an owner. Has power to regulate to prevent pollution but does not have property interest sufficient to support a civil action for damages.

QUES.Is this case contrary to Dapson v. Daly? No. B/c Dapson v. Daly also talks about how Commonwealth has title to wild animals and game in trust for the public to be devoted to the common welfare. Regulates through having hunting seasons and licensing.

CLASSIFYING PROPERTY AS REAL OR PERSONAL

Haslem v. Lockwood, p. 18 – 37 Conn. 500 (1871)

FACTS trover for a quantity of manure.  gathered manure into heaps on public highway intending to remove to his own lands the next evening.  removed manure. Neither  nor  had permission from authorities to remove manure.  claiming manure was abandoned personal property.  claiming manure was party of realty and belongs to owner of highway and even if it was personal property, it was abandoned by .

ISSUE Was manure personal or real property? If personal property, does gathering of manure into heaps imply ownership?

RULE Manure was personal property b/c on highway and serves no purpose for agriculture. If a party finds property comparatively worthless and greatly increases its value by labor and expense, he doesn’t lose his right if he leaves it a reasonable time to procure the means to take it away, when such means are necessary for its removal.

HOLDING The removal of manure was beneficial and a reasonable time had not elapsed when  took manure.

QUES. Why can you not use rule in Keeble in this case? B/c Lockwood did not act w/ malicious intent.

Goddard v. Winchell, p. 21 – 52 N.W. 1124 (Iowa 1892)

FACTS Action in replevin. Goddard owned fee of land at time when meteorite fell. Leased, at time, to James Elickson. Meteorite buried itself in the ground. Next day, dug out of grand by Peter Hoagland. Hoagland sold to Winchell. Winchell knew that meteorite didn’t fall on Hoadland’s land.

ISSUE Was meteorite real property or personal property?

RULE Meteorite is affixed to soil and therefore is real property. Whatever is affixed to soil belongs to soil.

HOLDING Meteorite came to earth by natural causes, nothing in its material complosition makes it unnatural to soil, only moveable as parts of earth are made moveable by hand of man, like a stone.

OTHERAccretion = addition of portions of soil, by gradual deposition through the operation of natural causes, to that already in possession of owner.

Allusion = by washing up on land or soil

Dereliction = when sea shrinks below usual water mark.

QUES.Was Hoagland a trespasser? No b/c dug up meteorite in presence of elickson.

 Case is an action in replevin – how can the court characterize meteorite as real property?  has title to aeorlite b/c of ownership of land.

REMAINDERS

A. Definition:

  1. a future interest created in a grantee that is capable of becoming a present possessory estate upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created.
  2. never divests or cuts short the preceding estate buy always waits patiently until the preceding estate expires.
  3. Ex. OA for life, then to B if B is then living.

B. Essential Characteristics:

  1. must have a preceding estate “a remainder needs a preceding freehold to support it”
  2. must follow a fee tail, life estate, or term of years
  3. must be capable of becoming possessory on natural termination of preceding estate (if divests than its an executory interest)
  4. held by a person or persons other than the grantor of the document in which they are created.
  5. No remainder after a fee simple – including a fee simple determinable.
  6. Ex. O  A and his heirs, but if A dies without issue surviving him, to B. B has an executory interest.

Ryan v. Monaghan, p. 302

FACTS: OWife for life, then to heirs of son but if he dies unmarried and without issues, to O’s siblings. Wife dies but son still alive. No heirs of the living. Can’t fall to siblings b/c their interest is contingent on son dying. Remainder estate fails.

MP:Doctrine of destruction of Contingent Remainders  contingent remainder has to vest upon end of prior estate.

Buckley v. Buckley, p. 303

FACTS: Is remainder vested or contingent. If contingent, remaindermen have to outlive life tenant. Then interest is not transferable to remainderman’s heirs. However, if vested, interest is inheritable. Court rules its vested b/c vested estates are favored and you have to express clear intent to make it contingent.

MP: Illustrates some problems w/ vested remainders:

  1. Property may be cast to people outside the family
  2. Vested estates treated as real assets and are taxable.

C. Classification of Remainders: remainders are classified either as vested or contingent.

  1. Vested: a remainder that is both created in an ascertained person and is not subject to any condition precedent.
  2. Ex. O  A for life, then to B in fee simple
  3. 3 types of Vested Remainders:
  4. Indefeasible: holder of remainder is certain to acquire a possessory estate at some time in the future. Ex. O  A for life, then to B and her heirs.
  5. Subject to open: remainder vested in a class of persons, at least one of whom is qualified to take possession, but the shares of the class members are not yet fixed b/c more persons can subsequently become members of the class. Ex. O  A for life, then to A’s children (A has one child at time of conveyance).
  6. Subject to complete divestment: remainder subject to a condition subsequent. Ex. O  A for life, then to B and her hairs, but if the property is used for a tavern during A’s lifetime, then to C and his heirs.
  7. Contingent: remainder that is either subject to a condition precedent or is a transfer to a person unascertained or unborn either at the time of the transfer or later, up to the time the prior estate ends
  8. Ex. O  A for life, then to A’s children (A has no children)
  9. Ex. O  A for life, then to B’s heirs (B is alive – no one is heir of the living)

NOTE: whenever O creates a contingent remainder in fee simple, there is a reversion in O.

  1. Condition Precedent: an express condition set forth in the instrument which must occur before the remainder becomes possessory.
  2. How do you distinguish vested and contingent remainders?
  3. ”whether a remainder is vested or contingent depends upon the language employed. If the conditional element is incorporated into the description of, or into the gift of the person taking the remainder, then the remainder is contingent; but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested”.
  1. Examples: O  A for life
  2. then to B and B’s heirs. Vested b/c no implied condition that B survive A. If B does not survive A, upon A’s death, B’s heirs or devisees take possession.
  3. then to B’s children and B is childless at time of conveyance. Contingent until children are born.
  4. but when A dies, to B and B’s heirs. Vested b/c “but when A dies” are words of limitation and only define A’s estate.
  5. then, if B survives A. to B and B’s heirs. Contingent while A is alive. B’s contingent remainder is followed by a reversion in O, subject to divestment upon B’s surviving A.
  6. then, if B survives A to B and B’s heirs, but if B does not survive A, to C and C’s heirs. Alternative contingent remainders or cross remainders = condition precedent attached to one interest is the opposite of the condition attached to the other.
  7. then to B for life, then to C and C’s heirs. Vested for B’s life estate b/c definition of life estate requires that B survive A in order to take this future interest. No condition precedent is implied from the definition of the estate conveyed. C’s remainder is also vested.
  8. To B and B’s heirs, but if B does not survive A, to C and C’s heirs. B has a vested remainder in fee subject to complete divestment, followed by a shifting executory interest in fee in C’s heirs.

Black v. Todd, p. 310

FACTS: Odaughter for life, then to her children or the child or children of any deceased child, but in case she dies w/out any issue, then to granddaughter.

Ogranddaughter for life, then to her children or any child or children of any deceased child, but if she dies w/out any issue, to grandson.

MP:Contingent remainder is transmissible where the contingency depends upon the event and not upon the person.

  1. Merger:
  2. When two successive vested estates come into the same hands, they merge. The lesser estate is merged into the greater.
  3. Has the effect at common law of destroying intervening contingent estates, another example of the doctrine of destructibility of contingent remainders.

Danz v. Danz, p. 307

FACTS: Owife for life or until remarriage, then to B and C, but in the event that B or C die before wife’s life estate ends, the property remaining to become vested in their heirs; and in the event of the death of C w/out issues surviving, her share to go to D or E, or their heirs. Is remainder vested or contingent?

MP:Court classifies as vested b/c has a divesting clause.

Purpose of life estate has been fulfilled so there is an acceleration of the remainder.

If time for division is reached before the happening of the contingency upon which the remainder is to be divested, the executory devise is defeated.

  1. Common law has a presumption in favor of classifying remainders as vested, why?
  2. Alienable
  3. More effective in carrying out grantor’s intent b/c not destructible by gap in seisin.
  4. Not subject to Rule Against Perpetuities.
  5. However, now that contingent interest have been made alienable and indestructible it is harder to justify the common law preference for vested remainders

Browning v. Sacrison, p. 312

FACTS: Odaughter for life then to grandsons, share and share alike or, if either of them be dead, then all to the other. One grandson dies before life tenant does. Did estate vest at time of testatrix’s death or death of life tenant?

MP:Court rejects presumption for vested remainders. Prefers to look at intent of testatrix.

D. RULES APPLYING TO CONTINGENT INTEREST:

  1. Destructibility of Contingent Remainders:
  2. A legal contingent remainder in land is destroyed if it does not vest at or before the termination of the preceding freehold estate. If the preceding freehold terminates before the remainder vests, the remainder is struck down and can never take effect.
  3. Ex. O  A for life, remainder to A;s children who reach age 21. At A’s death, his children are all under age 21. The remainder is destroyed. Reverts to O who owns it in fee simple absolute.
  4. Rule can be avoided by adding a term of years instead of a life estate or by creating trustees to preserve contingent remainders.
  5. Artificial Destruction Doctrine:
  6. If a life tenant purported to convey the fee (tortuous feoffment), the next estate presently entitled to take would vest in possession immediately. Contingent remainders, not being limited to take immediately, were destroyed.
  7. Ex. O  A for life, remainder to B if B survives A. A could destroy B’s remainder by making a tortuous feoffment.
  1. The Rule in Shelley’s Case:
  2. Definition
  3. when the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail; that always in such cases ‘the heirs’ are words of limitation of the estate and not words of purchase.
  4. In other words, if one instrument creates a freehold in land in A and purports to create a remainder in A’s heirs (or in the heirs of A’s body) and the estates are both legal or both equitable, then the remainder becomes a remainder in fee simple (or fee tail) in A. Conveyance has to say heirs or heirs of the body. Can’t say children or issue.
  5. Ex. O  A for life, then to A’s heirs. Rule converts remainder limited to A’s heirs into a remainder in fee simple in A
  6. Ex. T  W during widowhood, and upon W’s death or remarriage, remainder to W’s heirs. Rule gives W the remainder which merges w/ W’s life estate, giving W a fee simple.
  7. 5 Requirements for Application
  8. Ancestor must take freehold estate
  9. Freehold and remainder must be created by same instrument
  10. Only land is covered by the Rule
  11. Estates must be of same quality.
  12. Ex. OT in trust for A for life w/ remainder free from trust to A’s heirs.
  13. Rule doesn’t apply b/c equitable estate v. legal remainder.
  14. Heirs must be meant in the technical sense
  15. Heirs  those persons who take if person dies intestate.
  16. Reasons for Rule:
  17. Feudal Tax evasion
  18. Alienability: Rule makes land alienable one generation earlier
  19. Other facts about Rule
  20. Rule can be avoided by giving grantee a leasehold instead of a freehold.
  21. Rule is a rule of law that applies regardless of grantor’s intent.
  1. Doctrine of Creation of Remainder by Implication
  2. No express remainder but read into instrument b/c only thing that makes sense.

McRorie v. Crewsell, p. 294