Property Outline- Prof. Currie/2001
Possession: must have some legal form of possession to claim a right to a thing
I. Rules for Capture: (applies to wild animals)
a. first to capture wins
b. key is that capture is certain, or so eminent that practically certain animal cannot escape
A. Must have physical occupation/control over an animal to constitute a possessionary interest
Rule: must gain control over an animal to have possession
- nets, cage, tied up, traps, mortally wounding are all control b/c capture is nearly certain
Pierson v. Post-
Post is chasing a fox and looks about ready to catch it, then Pierson enters in the last minute and catches fox. Suit over who owns dead fox. Question is whether fox is Post’s property. Pierson wins, Court says not Post’s b/c he did not have occupation/physical possession of fox. Reason behind possession (control) not just being in close pursuit as Post was:
1)certainty (possession is easy to site)
2)peace and order/ repose (a clear rule creates stability)
3) incentive arg (just deserts)- what society wants to encourage (Blackstone)- foxes are bad for farmers so anything that leads to the most dead foxes is good. Also many feel this is just the fair outcome/just deserts arg that we want to give people the fruits of their labor
** note- Dissent says do not actually have to have occupation of it (have it in hand) but rather just be in reasonable pursuit and likely to get it (is an arg that this fits the three principles above as well, i.e who would go to trouble of hunting fox if anyone could come into process and kill an animal and negate your effort)
B. Possession/Capture can be unique to the circumstance if Custom permits: generally means not practical to have total control at start
- must have control in the best sense possible, here physical control is impossible
- key is the incentive created
Ghen v. Rich-
P shoots whale and later it floats ashore where 3rd party finds it and auctions it off to D. P sues for possession of the whale b/c in the whaling industry it was customary to shoot whales and then when they die they would float to the top and drift ashore where one actually got them. P says that he brought it into his control (constructive capture) b/c of a mortal wound despite not having physical control, D says there was no real/physical control. P wins, probably b/c the whaling industry is peculiar and this is the closest one can come to capture of this type of whale, so if law didn’t call this possession their would be no incentives to keep the industry alive.
Hypothetical variations:
* Key is to look to incentives, cannot overextend a generic doctrine like rules of capture to all situations
* also note that in 19th century when these rules were formed the goal was generally to kill wild animals, today the goal may be to conserve them (endangered)
A. Must have control over the animal to be able to claim possession
Elements of possession RS:
a. in your control
b. intention to exclude others from possession
1) Post puts fox in cage and Pierson takes it out: fox belongs to Post b/c Post has denied it of liberty/occupied it
2) If beast escapes from cage- then Pierson is ok to take it b/c there is no longer occupation/control.
- if one left his book somewhere it stays his no matter what unless he abandones it, here a fox is fair game b/c the incentive to promote capture of foxes and keep away from society so if fox does escape we want another to capture it and this overrides rights of orig capturer
- note also that if the animal was tamed and had a habit of returning (animus revertendi) then the captor still owns the animal while he is away b/c we want to reward taming animals
B. If animal’s true ownership is obvious to society (notice), cannot claim an animal
3) Brands animal and it escapes- then rights remain in Post b/c there is an incentive to get fox out of society for orig owner, and also for society if there is a reward posted ****ASK
4) Animal not indigenous to area-
- treated differently b/c public at large knows that it belongs to someone, i.e. potential 2nd captor would have different incentive due to his understanding. There is warning that it is not free game
- if foreign to area or marked/branded you know it isn’t an animal that is yours for the taking, must be fair warning (so if branding hid and not seen no good)
C. Technicalities of modern law (trespass, statutory law, etc)
5) Pierson captures fox on Posts land-
- although you do not own fox until reduced to possession, even if on your land, Pierson can’t get the fox b/c we do not reward wrongful trespassers, ratione soli (own land at exclusion of others) supercedes other incentives
6) no hunting license- Post wins b/c of statutory reason
D. Natural Resources (varies depending on incentive of the area)
7) Water- taking large amounts of water from neighboring stream. Multiple resolutions:
a. default- cannot do this b/c of an incentive reason that public needs river for transportation, power, etc. this is common law of riparian water (water that borders your land), people have right to reasonable use of water. This rejects the capture rule
b. desert rule- could be a situation where it would be good to encourage the taking of water for good purposes Ex: Desert, maybe want to become more fertile and irrigateable, this is Coffin v. LH Ditch case of 1888 in CO which changed the common law from old English law of example a.
c. prior appropration rule- person who first puts the good (water) to good use gets this right protected into futures (akin to a capture rule, similar goals of the desert rule or could encompass/work with the desert rule)
** Ask if came up with the right rules
8) Solid minerals: Coal
a. Land owner owns the earth below him. Capture rule doesn’t really apply
- Could argue that anyone can dig up (capture) b/c we want people to dig up coal, but part of land belongs to the owner, and if owner is ignorant than other guy w/ knowledge can bargain w/ him w/o the law to get the coal(geologist case)- so cannot just dig up solid minerals anywhere, need to have some rights to the land
9) Liquid and Gaseous Minerals: Oil & Gas
a. capture rule allows a land owner to extract (capture) all the oil and gas from a well under his land despite knowing if it is coming solely from land he owns. Public incentive for this scarce good.
- more difficult than coal b/c these are liquid and hard to prove it came from your land or another’s land, so need to think about it differently
- if didn’t treat this way it would be like fish example in book that state there would be overexploitation quickly and depletion due to incentive to get as much as possible very quickly- so capture rule would promote over exploitation if it were applied here
ASK*** the rule under a that came from gilberts seems to contradict last statement
E. Right to possession of profits from you income
Keeble v. Hickeringill
P has a decoy pond for ducks that he then catches and sells. D maliciously scares ducks w/ gun shots. P sues for trespass on the case (maybe conversion today), and P wins on the rationale that although he didn’t own ducks he did own (have possession of) the profits that should come from ducks.
Two possible rules from this case:
· when your right to gain an established profit (as in your profession/trade) is inhibited, you can recover for property (future profits) w/o ever owning the tangible thing like the ducks
- Post could perhaps not have used this arg b/c although he could have profited from fox it was not associated with his trade/business (if this is the scenario)
· competition is lawful but malicious interference is not: here D is just malicious in his acts. Ex: school- if you build a competing school across street and take students away from orig school ok, but if you frighten students away from orig school, not ok
- Pierson can get fox if just competition but could not if just malicious b/c wanted post’s fox only to his detriment
- some courts say competition accompanied by malice doesn’t matter b/c still supports public policy of getting rid of foxes in society- crts split
II. Finders Cases
Same necessity of possession :
1) in your control
2) intention to exclude others from possession/ dominion over
A. General Default: Finder has rights superior to all but the true owner
- still have to reduce it to your control
- ownership (holding legal title) is different from possession (physical control)
Ex: Post sees jewel in gutter and points to it and says tallyhoe! Then Peirson quickly goes in and gets it. Pierson gets possesion b/c he reduces to possession/control. Same case here, not just enough to start chase have to gain control over object (Capture Rule)
B. The prior possessor, has superior rights to personal and real property found
Hierarchy of Property Interests: relativity of title/possession
1. real owner
2. finder #1 (technical trespasser)
3. finder #2
Armory v. Delamire
Armory finds a jewel (in course of his job as chimney sweep) and brings it to jeweler’s for appraisal handing it over to his apprentice/agent. D will not give it back saying that P doesn’t own it, thus Armory brings action of trover against Jewler/Delamire. Crt Holds that P/finder should get jewel back and has rights over all but the true owner.
Incentives:
- we want people to pick up lost things and get them back into economy
- also just deserts, he went to hassle to get/find- put in the most toil
- incentive here is weaker than w/ capture rule since the real owner can still claim it, this is because goods are usually obvious to have belonged to someone (like marked animal)
C. Finders versus Owners of the premises
1. Objects found in private homes usually go to the owner b/c he has possession of the home, control and an intent to exclude others from dominion over it and all in it
Ex: Owner invites finder to house for dinner and finder finds a diamond ring under sofa, the owner gets the ring b/c he has constructive possession of it since it is in his house
2. Private home where the owner does not have possession of the house: Owner/Renter situation
- then the Finder may take the object, as he has the possession of the object
Hannah v. Peel
P (soldier) is stationed legally to reside at D’s house during war and P finds a brooch. P brought to police and when police can’t find real owner they turn it over to D, the owner of the house. P sues D for brooch or its value. Holding: Court gives P (finder) value of brooch, b/c the D never had possession, both control of good or intent to exclude from others control.
Counter: D would still argue (indirect possession arg) that he has possession of the land and thus possession of all that is on his land
3. Object found in a public place: Lost v. Mislaid distinction
Lost property- true owner accidentally and casually lost (clip falls out of hole in pocket), do not know act of placing has happened
Mislaid property- intentionally placed somewhere but then forgotten (purse on a table)
- fine distinction, depends on circumstances of where and how found, floor v counter idea
a. Lost property goes to the Finder
- want to encourage people to find objects and get back into economy
Bridges v. Hawkesworth
Customer finds money on the floor of a shopkeepers store, both claim rights to it. Appears that it was lost, thus the Finder got to keep it
b. Mislaid Property goes to the Owner or premises
- want to allow true owner to come back and claim the object as he may remember he left it there
McAvoy v. Meduna
True owner left a pocket book on a counter in a Barber shop. Finder and owner claim right to wallet. Owner gets wallet b/c it appears to be mislaid
4. Abandoned property: Finder gets absolute rights to property
- objective intention to give up ownership and possession
Ex: Owner throws his watch into the garbage b/c he doesn’t like it. Finder can claim true ownership of the watch as long as he takes possession with the intent to assert ownership
5. Finder is an unlawful trespasser: Owner of premises gets property
- this rule discourages unauthorized entry on land
6. Finder is an employee: Owner of premises gets good
- employee is an agent, so anything he does goes to the benefit of the employer/owner
- employee is allowed on land for a limited purpose, not to take things found, so this would be a trespass
See Staffordshire v. Sharman below
7. Finder is on premises for Limited Purpose: Owner gets property
- allowed on land for a limited purpose, not to take things found, so this would be a trespass
South Staffordshire Water Co. v. Sharman
Employee finds two gold rings embedded in the owner’s ground while digging pool. Owner of premises gets gold rings.
- or service person on land to remove/find/ do particular thing, not to take valuable things
8. Objects Embedded in land: Owner gets property
- objects in soil or under land go to the owner b/c there is a reasonable expectation that things in their soil belong to them.
Elewes v. Briggs
A prehistoric boat was found by the renter/finder in the land and he wants rights to it now so he can sell to a museum. Rights go to Owner of land.