Possession (First, Rights, and Sequential)

Question 1

First Possession

Answer 1

Establishing a new root of title by being the first to possess something that is unclaimed by anyone else

Question 2

Original Acquisition

Answer 2

Method of establishing ownership other than voluntary conveyance from previous owner

Includes first possession, creation, and adverse possession

Question 3

How does one establish first possession?

Answer 3

Intent to control + act of control

Question 4

Pierson v. Post - Facts

Answer 4

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

Question 5

Pierson v. Post - Core Issue

Answer 5

Was the mere act of hunting the fox enough to establish first possession?

Question 6

Pierson v. Post - Majority Opinion

Answer 6

• 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

Question 7

Pierson v. Post - Dissent

Answer 7

• 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

Question 8

Negative Side of Custom

Answer 8

Don’t want to load the law up with too much custom because there may be people who genuinely don’t know the custom

Question 9

Keeble v. Hickeringill - Facts

Answer 9

• 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)

Question 10

Keeble v. Hickeringill - Decision

Answer 10

• Court finds in favor of Keeble - says Hickeringill interfered w/ his livelihood

Question 11

Keeble v. Hickeringill - Complexity

Answer 11

• 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

Question 12

Ratione soli

Answer 12

• “according to the soil” - Latin phrase conveying the legal justification for assigning property rights to landowners over resources found on their land

Question 13

Tragedy of the Commons

Answer 13

• 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

Question 14

Open-Access Commons

Answer 14

• 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)

Question 15

Limited-Access Commons

Answer 15

• 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

Question 16

Popov v. Hayashi

Answer 16

• 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

Question 17

Haslem v. Lockwood - Facts

Answer 17

• 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)

Question 18

Haslem v. Lockwood - Reasoning

Answer 18

• 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)

Question 19

Haslem v. Lockwood - Core Principle

Answer 19

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)

Question 20

Law of Finders

Answer 20

• exemplified by Armory v. Delamirie

- finder has title good against all but the true owner

Question 21

Armory v. Delamirie - Facts

Answer 21

• 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

Question 22

Armory v. Delamirie - Decision

Answer 22

• 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

Question 23

Relativity of Title

Answer 23

• Concept of hierarchy of ownership - owner, then bailee, then finder, then converter

Question 24

Jus Tertii Defense

Answer 24

• 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

Question 25

Finders

Answer 25

• Usually considered similar to a bailee for the true owner

Question 26

Categories of Property

Answer 26

• abandoned
• lost
• mislaid
• treasure trove

Question 27

What should finders get?

Answer 27

• 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

Question 28

Law of Salvage

Answer 28

• 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

Question 29

Law of Treasure Trove

Answer 29

• applies to valuables, especially old currency + historically significant items, in sunken vessels

Question 30

Shipwrecks and Possession

Answer 30

• to maintain possession over a wreck, one needs to provide notice + prove diligence in acting to achieve full dominion + control over a resource

Question 31

Mislaid Property

Answer 31

• 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

Question 32

Clark v. Maloney - Facts

Answer 32

• Clark found logs floating after a storm and tied them up

- Maloney later “found” them floating in a creek

Question 33

Clark v. Maloney - Decision + Reasoning

Answer 33

• F1 beats F2 (otherwise, you’d have a lot of converters claiming to be finders)
• Rejection of jus tertii defense

Question 34

Anderson v. Gouldberg - Holding

Answer 34

• both converters - first converter beats the second one

Question 35

Anderson v. Gouldberg - Reasoning

Answer 35

• 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)

Question 36

Why protect earlier possession?

Answer 36

• 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