Possession (First, Rights, and Sequential) Flashcards
First Possession
Establishing a new root of title by being the first to possess something that is unclaimed by anyone else
Original Acquisition
Method of establishing ownership other than voluntary conveyance from previous owner
Includes first possession, creation, and adverse possession
How does one establish first possession?
Intent to control + act of control
Pierson v. Post - Facts
Post is hunting w/ his dogs on an uninhabited + unpossessed beach -> he finds a fox and hunts it
Pierson seems him hunting the fox, but kills it and carries it off anyway
Pierson v. Post - Core Issue
Was the mere act of hunting the fox enough to establish first possession?
Pierson v. Post - Majority Opinion
- Says need “certain control” in order to establish possession
- Cites various sources (some say corporal possession necessary, some say wounding/ensnaring sufficient) but all agree mere pursuit not enough
Pierson v. Post - Dissent
- Argues for “reasonable prospect” standard - says Post should have won b/c he had a reasonable prospect of taking the fox + converting to own use
- Also argues should consult hunters on their customs
Negative Side of Custom
Don’t want to load the law up with too much custom because there may be people who genuinely don’t know the custom
Keeble v. Hickeringill - Facts
- Keeble has a decoy pond on his land, which he uses to attract wildfowl -> he then takes the wildfowl as a business
- Hickeringill knowingly + intentionally fires gun into air near the decoy pond on three separate days to scare away the birds - his plan works and the birds abandon the pond (he is trying to do this b/c he’s annoyed Keeble’s decoy pond is going to take ducks from his own nearby decoy pond)
Keeble v. Hickeringill - Decision
- Court finds in favor of Keeble - says Hickeringill interfered w/ his livelihood
Keeble v. Hickeringill - Complexity
- Keeble did not have certain control of the ducks, and the court acknowledged that Keeble didn’t actually possess the ducks
- Prof Smith says now more likely to be treated as a nuisance, or possibly unfair competition/interference
Ratione soli
- “according to the soil” - Latin phrase conveying the legal justification for assigning property rights to landowners over resources found on their land
Tragedy of the Commons
- resource depletion issue that arises out of first-in-time rights to an asset -> can lead to racing + waste
- if you don’t use it, someone else will - turns into a race to use the common property
Open-Access Commons
- open-access commons - access to the common resource is open to all -> means each individual has incentive to use the resource first -> can exploit the resource to ruin (Tragedy of the Commons)
Limited-Access Commons
- set of individuals w/ access to the common resource is limited-> less likely to have Tragedy of the Commons, more likely to have group controlling own behavior in the interest of resource preservation
Popov v. Hayashi
- case with the Barry Bonds home-run baseball
- court ruled Popov had exclusive pre-possessory interest in being allowed to catch the ball w/o interference, but Hayashi was 1st to unambiguously establish possession -> said they both had superior claims against rest of world but equal to each other -> sell ball and split proceeds
Haslem v. Lockwood - Facts
- Haslem hired people to gather manure off the public highway into heaps + left the heaps overnight
- Lockwood found the heaps the next morning, tried and failed to figure out who they belonged to, then carried them away (conversion)
Haslem v. Lockwood - Reasoning
- Court says Haslem’s labor and improvement establishes possession of the manure piles
- Trover - requires that the plaintiff have possession or the immediate right to possession (Haslem is not in possession, but maintains the right to possess)
- Court also looks to the seaweed statute for comparison (Haslem didn’t leave the manure long enough)
Haslem v. Lockwood - Core Principle
Not necessarily possession, so much as rights to possess (once you have first possession, you are sort of on a glide path in rights to possess - you have those rights until you do something to give them up)
Law of Finders
- exemplified by Armory v. Delamirie
- finder has title good against all but the true owner
Armory v. Delamirie - Facts
- Chimney sweeper’s boy found a ring + took it to Delamirie’s shop (silversmith)
- Apprentice took out stones + showed to master, who offered to buy them for a trivial sum
- Chimney sweeper asks for the ring back instead, but gets it w/o the stones
Armory v. Delamirie - Decision
- Chimney sweeper’s boy wins in action on trover (damages for conversion of personal property)
- Finder has title good against all but true owner
- Court chose to measure damages based on the finest jewel that could fit in the socket, unless the converter could prove otherwise
Relativity of Title
- Concept of hierarchy of ownership - owner, then bailee, then finder, then converter
Jus Tertii Defense
- defendant argues plaintiff doesn’t have good title b/c a third-party has better title
- this is not a valid defense - litigation focuses only on the two people involved, can’t win just by saying someone else has better title
Finders
- Usually considered similar to a bailee for the true owner
Categories of Property
- abandoned
- lost
- mislaid
- treasure trove
What should finders get?
- not co-ownership - conflict and complexity
- finders fees might be beneficial (in Japan, finders get rewards - lost items tend to be returned to true owners)
- quantum-meruit type recovery - idea that finders should receive payment for value of services in finding and restoring object to true owner
Law of Salvage
- basically deals w/ shipwrecks - ownership to first possessor only when property abandoned
- otherwise, successful salvor has claim to generous percentage of value of vessel + cargo, but no ownership
Law of Treasure Trove
- applies to valuables, especially old currency + historically significant items, in sunken vessels
Shipwrecks and Possession
- to maintain possession over a wreck, one needs to provide notice + prove diligence in acting to achieve full dominion + control over a resource
Mislaid Property
- property intentionally placed where it is found but forgotten by the owner (meant to put it somewhere, but forgot)
- goes to locus owner instead of finder - theoretically will facilitate return to true owner
Clark v. Maloney - Facts
- Clark found logs floating after a storm and tied them up
- Maloney later “found” them floating in a creek
Clark v. Maloney - Decision + Reasoning
- F1 beats F2 (otherwise, you’d have a lot of converters claiming to be finders)
- Rejection of jus tertii defense
Anderson v. Gouldberg - Holding
- both converters - first converter beats the second one
Anderson v. Gouldberg - Reasoning
- theoretically, if C2 were to beat C1, might provide less incentive to thievery (b/c shows court won’t protect ill-gotten property)
- BUT generally, even wrongful possession is protected as possession against converters (no court has ever decided C1 vs. F2 though)
Why protect earlier possession?
- protecting peace and order (less need for self-help)
- protecting possession is often a cheap and effective way of establishing and protecting ownership (don’t need to carry around receipts + docs)
- facilitates bailments
- reward to finders
- keeping of property closer in chain to owner
