Property Law

Question 1

Hypo: Suppose that F has a neighbor who also keeps a herd of deer. A doe belonging to F roams onto the neighbor’s land, takes up with a buck in the neighbor’s herd, is fed by the neighbor, and eventually bears a fawn sired, presumably, by the neighbor’s buck. Who owns the fawn, and why?

Answer 1

The general rule, in the absence of an agreement to the contrary, is that the offspring or increase of tame or domestic animals belongs to the owner of the dam or mother. Therefore, F owns the fawn.

Carruth v. Easterling, 150 So. 2d 852 (Miss. 1963)

Question 2

What are the two justifications advanced for the rule that capture is required to vest title?

Answer 2

1. Advances society’s goal of capturing wild animals (the desire to make “efficient use” of property).
2. The rule is that it is easy to administer.

Question 3

Candy goes to Garcia’s Restaurant to have dinner. When the hostess seats Candy and her party at a booth, Candy sees a purse on the seat portion of the booth. The purse evidently had been placed there by a woman who had eaten at that table earlier in the evening. Candy picks up the purse and turns it in to Garcia, the owner of the restaurant. Garcia attempts to locate the true owner, but to no avail. Who has the better claim to the purse if the jurisdiction treats the purse as mislaid property?

a. Candy, because her possession is what the true owner would have intended.
b. Garcia, because his possession is what the true owner would have intended.
c. Candy, because Garcia opened his restaurant to members of the public.
d. Garcia, because he was already in possession of the purse when Candy picked it up.
e. The court would order a sale of the purse with the proceeds split between Candy and Garcia.

Answer 3

B.

Mislaid property doctrine favors the landowner over the finder. Due to the place where Candy found the purse, on the seat of the booth, it is a reasonable inference that the purse was mislaid. This means that the true owner intentionally set it there and forgot to retrieve it when she finished her dinner and left. Thus the purse will go to Garcia, so Choices A, C, and E are incorrect.

With respect to E, there are situations in which a court has determined that two or more persons have an equal claim as finders, but this has not been done with respect to mislaid property.

Choices B and D offer different reasons for awarding the purse to Garcia.

D justifies the result based on a conclusion that Garcia was in prior possession of the purse based on the private/public place distinction. This theory of possession is not part of the thinking behind the mislaid property doctrine.

The mislaid property rule rests upon the assumption that the true owner may remember where she left her property and may return to that location. The true owner’s retrieval of her property is facilitated if the owner of the locus in quo has kept the property as a bailee for the true owner. Choice B, the correct answer, encapsulates this line of thought by stating that Garcia’s possession fulfills the true owner’s probable intent.

Question 4

Distinguish abandoned property from lost property.

Answer 4

A chattel is not abandoned merely because the owner has parted with its possession. If the owner of a chattel involuntarily parts with possession of goods, they should be categorized as either lost or mislaid.

To show that a chattel has been abandoned, one must show that the former owner voluntarily gave up and relinquished his ownership in the chattel.

Question 5

What is an externality?

Answer 5

• Externalities exist whenever some person makes a decision about how to use resources without taking full account of the effects of the decision.

Question 6

What is the tragedy of the anticommons?

Answer 6

An anticommons entails multiple people having rights to veto the exploitation of a resource.

anticommons leads to underconsumption (with the problem of underconsumption worsening as the number of anticommoners increases).

Question 7

HYPO: F, a farmer, is bothered by wild migrating geese on her land and shoots them in violation of the fish and game laws. The government confiscates the carcasses, and F sues for their return. The government wins, the court explaining that the government owns wild animals, may regulate their taking, and may confiscate animals taken in violation of regulations.

So when the geese return the next year, F sues the government for damage to her cornfield caused by the geese the government has been said to own. The government wins again, the court holding that the government does not own wild fowl and is not liable for damage caused by them. Can you square these two holdings?

Answer 7

If one possesses a game animal not tagged in accordance with the appropriate statute, the state may have the authority and duty to confiscate the animal.

But a State does not stand in the same position as the owner of a private game preserve. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture.

Question 8

What is the tragedy of the commons?

Answer 8

The tragedy of the commons is a collective action problem involving an individual’s interest to exploit a collective resource, although it is in the community’s interest that the collective resource be managed sustainably.

common property can lead to overconsumption of the resource in question

Question 9

Where the finder is on someone else’s property, does the finder or the locus owner have a better claim to the property?

Answer 9

Some courts examine whether the property was somehow attached to the ground or merely lying on top of it.

• if attached, the locus owner wins.
• If lying on top of the ground, the finder wins.

Other courts ask whether the property was lost or mislaid, holding that:

• lost property can be claimed by the finder
• mislaid property goes to the locus owner.

Question 10

What is the holding and rationale in Pierson v. Post?

Answer 10

• Rule
  
  • A hunter must either trap or mortally wound a wild animal to aquire title
• Facts
  
  • Post (P) discovered a fox on wild and uninhabited land. Post (P) hunted and pursued fox with his dogs. Even though Pierson (D) knew that Post (P) was hunting the fox, he killed the fox and took possession of it.
• Rationale
  
  • Post was merely pursuing the fox in question; there is no way he could guarantee that he was going to take possession of the fox.
  • Policy: This is to prevent litigation. If mere pursuit were to vest title, it would be very difficult to determine who was the first to pursue.
  • The majority held as it did “for the sake of certainty, and preserving peace and order in society.”

Question 11

What are the elements of acquisition by discovery?

Answer 11

1. first to discovery
2. permanence or cultivation
3. prevoiusly unoccupied land

Question 12

What is the doctrine of ratione soli?

Answer 12

The doctrine of ratione soli asserts that landowner owns the wild animals on his land. That is, an owner of land has constructive possession of wild animals on the owner’s land until the animal’s run off.

Question 13

For the past 20 years John has owned and lived in a wood-frame house, originally built in 1925. He hires Rachel, age 12, to dig up an area of his lawn by the side of his house where John wants to put in a vegetable garden. John agrees to pay Rachel $7 an hour. Rachel uses a shovel, hoe, and rake. After she has been working almost two hours, she strikes something several inches under the soil with the shovel. It turns out to be a glass jar with a metal lid. The glass is broken, possibly due to Rachel’s striking it with the shovel. The jar contains 41 silver dollars, which were minted between 1931 and 1944. Rachel hands the jar to John, who thanks her and says that he has never seen the jar or coins before. In most states today that recognize the doctrine of treasure trove, who has the better right to possess the silver dollars?

a. Rachel.
b. John.
c. The state where John’s house is located.
d. The United States.
e. Rachel and John each should have an equal share.

Answer 13

A.

The coins satisfy all the normal elements of treasure trove. They are precious metal—silver. The mint dates, together with the age of the house, suggests that someone buried the jar of coins in the yard a long time ago, satisfying the requirement of antiquity. The jar is important because (along with the large number of coins) it supports the inference that the coins were not accidentally dropped by their owner. Rather, the owner buried the coins to hide them, and for some reason failed to retrieve them subsequently.

Normally courts award chattels embedded in the soil to the owner of the locus in quo, but treasure trove is an exception. Under American common law, treasure trove goes to the lucky finder. ​

Question 14

What is the holding and rationale in Popov v. Hayashi?

Answer 14

Rule: Where an actor: (1) undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and (2) the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. That pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion.

Facts: : A fan attempted to catch Barry Bonds’ history-making seventy-third homerun ball but he lost possession when a mob of spectators attacked him, and another fan grabbed the loose ball from the ground and put it in his pocket; both claimed ownership of the baseball.

Rationale: trespass to chattel claim would not lie. Trespass to chattel occurs when personal property has been damaged or when the defendant has interfered with the plaintiff’s use of the property. Actual dispossession is not an element of the claim. Popov (P) did not claim that Hayashi (D) damaged the ball or interfered with Popov’s (P) use and enjoyment of it. He claimed that Hayashi (D) intentionally took it from him and refused to give it back. If there was a wrong at all, the court explained, it was conversion.

Question 15

What is the rule of capturing oil and gas?

Answer 15

Rule of capture still applies. However, this is changing, especially when talking about oil. Voluntary or mandatory pools have been established to avoid conflicts.

Question 16

What is the holding and rationale in Armory v. Delamirie?

Answer 16

Rule: The finder of lost property has a title superior to all but the true owner and prior possessor.

Facts: Armory (P) found a jewel and took it to Delamirie’s (D) jewelry shop. Delamirie (D) refused to return the jewel.

Rationale: Since Armory (P) found the jewel, and since Delamirie (D) is not the true owner, Armory (P) has a superior title.

Question 17

When does conversion occur?

Answer 17

Conversion occurs when someone wrongfully exercises dominion over the property of another.

Conversion can exist even when the defendant lawfully acquired the property, and even when the defendant did not know that the property belonged to another.

Wrongful purpose is not a component, but unjustified refusal to give the property back is.

Question 18

What are the contributors of high transaction costs?

Answer 18

1. free-riders, which occurs when efforts are made to extract contributions from members of a group in order to carry out transactions that will confer collective or nonexclusive benefits on the group.
2. hold-outs, which arises when payments must be made to a group in order to carry out a transaction, and where, unless each member of the group agrees to the deal, the transaction fails entirely. When transaction costs become sufficiently high, the external effects of using resources are unlikely to be taken into account through any sort of bargaining process, and the resources are likely to be misused.

Question 19

Hypo: Suppose that A has reinjected gas (it could as well be oil) that moves under B’s land. B sues to recover damages for the use and occupation of her land by A’s gas. What result?

Answer 19

Unless it causes tangible harm or interferes with a neighbor’s use of subsurface land, reinjection does not ordinarily give rise to liability for the use and occupation of parts of a reservoir underlying the land of neighbors, even though ownership of the reinjected minerals remains intact.

Question 20

When does trespass to chattels occur?

Answer 20

Trespass to chattels exists when the defendant interferes with the plaintiff’s use of the property. Does not require actual dispossession.

Question 21

When is property lost?

Answer 21

Property is “lost” when the owner has:

1. accidentally and involuntarily parted with his possession an
2. does not know where to find it.

To determine whether property is lost, the key factor is the place where it is found.

Question 22

In which of the following situations do you think a court is most likely to find that an owner of goods has abandoned ownership?

a. Suzie, a university student, had her backpack stolen while she was in the main library. In the backpack was a pearl necklace valued at $200. She reports the theft to the university police but takes no other measures to recover the necklace. Six years have passed since the theft.
b. Tommy owns a condominium in a beach community, which he rents out to vacationers. The condominium is fully furnished. Three years ago one of the guests took a copper kettle from the kitchen. Although Tommy visits the condominium on occasion to check its condition and make repairs, he has not noticed that the kettle is missing.
c. In March Ron, a college freshman, lends his DVD of the movie Inception to a classmate, asking her to return it to him by the end of the semester. She hasn’t returned the movie to Ron, and Ron hasn’t asked for it back. It’s now two years later, and they are still acquaintances at the same college.
d. Forty years ago, Isaiah, a newly wed husband, lost his wedding ring in the ocean surf while vacationing with his wife. Last week a person strolling along the beach found the ring and posted a description of the ring’s engraving on Facebook.

Answer 22

C.

With Isaiah’s wedding ring, all we have is a lengthy period of non-possession, with nothing more to indicate he no longer desires to own the ring. Thus D is a weak choice. A is also weak for the same reason. There’s nothing to indicate that Suzie doesn’t want her pearl necklace back. The fact that she hasn’t taken any measures to recover the necklace, other than filing one police report, doesn’t go far.

Tommy does not yet know he no longer is in possession of his copper kettle. It may be true that he’s highly unlikely to get the kettle back, but that is not the issue. It does not seem logical to say that a person intends to no longer own an object that he believes he still possesses.

This leaves C as a better choice than the others. In contrast to the other fact patterns, Ron has known where his property was (and who had it) all along. He voluntarily gave possession of his Inception DVD to a friend, who has never returned it. This is a bailment, and Ron continues to own the DVD for so long as the bailment continues. However, the bailment was intended to last no more than the remainder of the school year, and it’s now two years later. Although it’s quite possible that a court will not find abandonment here if Ron suddenly asks for “his” DVD back, it’s also conceivable that a court would say that his protracted inaction evinced an intent to abandon ownership.

Question 23

Who does the mislaid property doctrine favor?

Answer 23

Landowner.

Question 24

What are the policy justifications for first prior possessor rule?

Answer 24

1. protects an owner who cannot prove that he is the true owner.
2. protects individuals who entrust goods to others. Entrusting goods to others promotes social welfare.
3. protects the expectations of prior possessors, who expect to prevail.
4. promotes peaceable possession. Were prior possessors not to prevail, individuals might begin to steal property.

Question 25

What is the rule for water?

Answer 25

English rule: whoever first captured the water was really its owner (survives in three states).

American rule: rule of capture, but with the slight addition that wasteful uses of water that actually harmed neighbors were considered unlawful.

Question 26

When is property mislaid?

Answer 26

Property is “mislaid” when, judging from the place where found, it can reasonably be determined that it was:

1. intentionally placed there and
2. thereafter forgotten.

Question 27

What is the holding and rationale in Ghen v. Rich?

Answer 27

• Rule: Title to a wild animal is acquired when a hunter apprehends the beast in accordance with custom.
• Facts: Ghen (P) shot and killed a whale, which sank to the bottom of the sea. Three days later, Ellis found the whale on the shore and sold it to Rich (D).
• Rationale
  • Since Ghen captured whale in accordance with custom, title vested with him.
  • ​When a custom embraces an entire industry, there is no need for the court to fashion a judge-made rule.
  • ​​Policy: The industry would suffer if whalers could so easily lose the fruits of their efforts by allowing another party to lay claim to the whales they took the effort to hunt down.

Question 28

What assumption does the mislaid property doctrine rest upon?

Answer 28

The true owner may remember where she left her property and may return to that location.

Question 29

What is John Locke’s labor theory?

Answer 29

John Locke argued that property rights arise out of human labor. Since every man has a property in his own person, people acquire property by adding labor to resources in the world.

Question 30

What are the elements of capture?

Answer 30

1. Physically capture or mortally wound a wild animal
2. Continued pursuit

Question 31

What is the holding and rationale in Johnson v. M’Intosh?

Answer 31

• Rule of Law
  
  • Discovery of land in America by a European power gives absolute title subject only to the Indian right of occupancy.
• Rationale
  
  • Title traced to a discovery is superior to Indian title.
  • Landowners trace title of ownership to United States. The United States, in turn, traces its title, by grant or otherwise, to discoveyr of America by white men.
  • Indians did not use property for long period of time to establish rights of continued use.

Question 32

Rocky enters Big City Hospital, where he is in a hurry to visit his aunt, who is hospitalized after having undergone emergency surgery. His aunt is in a room on the fifth floor. Rocky is on the ground floor, and the regular elevator for visitors to use is far away at the end of a long hall, but he is right next to a service elevator, posted “Hospital Staff Only.” Rocky asks a nurse’s aide, who is standing nearby, if he may use the service elevator. She gives him permission, and they enter the elevator together. Rocky looks down and spots two $20 bills on the floor of the elevator. He picks them up and shows them to the aide, who asks him to turn the bills in to the hospital’s lost and found after he visits his aunt. Rocky, an honest lad, does so. The true owner never appears to reclaim the cash. Who has the better claim to the $40?

a. Rocky, because the $20 bills are treasure trove.
b. Rocky, because the nurse’s aide gave Rocky permission to ride the service elevator.
c. The hospital, because the $20 bills are mislaid property.
d. The hospital, because the service elevator is not normally used by visitors.
e. The hospital, because it employed the nurse’s aide.
f. The federal government (United States Treasury).

Answer 32

D.

Question 33

What is the policy rationale behind the acquisition of discovery?

Answer 33

To encourage the productive use of land

Question 34

Danny finds a valuable watch in the city park. He takes it home, places an announcement in the local newspaper disclosing his find, and after a few days he begins to wear the watch. Three months later Owen, the owner of the watch, contacts Danny and requests its return. When Owen requests his watch, Danny refuses to return it. If Owen sues Danny because of that refusal, the most probable result is:

a. Owen wins if he sues in trover.
b. Owen wins if he sues in replevin.
c. Both of the above are correct.
d. Danny wins because Owen has lost title.
e. Danny wins because a finder has property rights.

Answer 34

C. Danny has converted the watch by refusing to return it to Owen, continuing that resistance after the filing of litigation. A court would grant trover if Owen requested that remedy, awarding Owen damages equal to the value of the watch. If Owen as an alternative requested replevin, the court would order Danny to return the watch. Thus Cis the best answer.

Answer choice E is wrong. Danny did acquire a finder’s property right by taking up the watch, but this is a limited property right. In the words of Armory, the finder has the right “to keep it against all but the rightful owner.” Because Owen is the true owner, Danny does not have the right to keep the watch when Owen requests its return.

Under certain circumstances, the true owner of lost goods can lose title, thereby vesting full title in the finder. The true owner could lose title by abandonment, which generally requires a manifestation of intent to relinquish ownership.

Alternatively, a true owner can lose title by adverse possession if the finder keeps the chattel for a period longer than the statute of limitations and satisfies the other elements for adverse possession of chattels. Choice D could point to either doctrine, but neither one would apply here. There’s no evidence that Owen ever intended to relinquish ownership, and all statutes of limitation are at least several years; Owen has been out of possession for only three months.

Question 35

What is the holding and rationale in Hannah v. Peel?

Answer 35

Rule: Where a house owner had no prior possession or control over property lost in his house, the property belongs to its finder, not the house owner.

Facts: Hannah (P) found a brooch on Peel’s (D) property in the crack of a room that was a sick bay. Peel (D) never lived on this parcel of property.

Rationale:

• Hannah (P) acquired possession when he found it.
• South Staffordshire Water Co. v. Sharman [when a lost item is found upon property over which the property owner exercises exclusive control, ownership of the lost item vests in the property owner]
• Bridges v. Hawkesworth [when a lost item is found upon property that is open to the public, ownership of the lost item vests in the finder]
• Peel (D) never occupied the house and never possessed the brooch before Hannah (P) found it. The brooch was lost, Hannah (P) found it, and Peel (D) knew nothing of it before Hannah (P) found it. Under these circumstances, Bridges should apply.

Question 36

What is the economic theory of property rights?

Answer 36

The purpose of private property rights is to enhance social welfare by maximizing the value of scarce resources through which people “internalize externalities”— i.e., bringing the costs of the resource’s use to bear on the user.

Property rights do this in two ways.

1. Concentrate the costs and benefits of the use on owners, giving them greater incentives to use their own resources more efficiently.
2. Property rights reduce the costs of negotiating with others over remaining externalities because an agreement in a commons encounter high transaction costs.

Question 37

What is the holding and rationale in Keeble?

Answer 37

Rule: A person may not maliciously prevent another from capturing wild animals in the pursuit of his trade.

Facts: Keeble (P) owned a pond and lawfully placed decoys and other equipment near the pond to lure and catch wildfowl. Keeble (P) hunted the wild animals in pursuit of his trade. With the purpose of frightening away the wildfowl, Hickeringill (D) fired a gun three times near the pond. The wildfowl were permanently frightened away.

Ratoinale:

• There are two public policy reasons why a landowner may, in pursuit of his trade, lawfully capture wildfowl free of the malicious interference of another.
  
  • First, every man should be able to enjoy the use of his land as he sees fit so long as the use is lawful.
  • Second, the capture of wildfowl in pursuit of a trade is profitable and creates wealth for the tradesman, for employees, and for the nation at large.
• Like the whalers, Keeble was engaged in a trade instead of mere sport. If the goal is more dead ducks, protecting the decoy pond from interference is the better rule.

Question 38

When is property abandoned?

Answer 38

Property that the owner has:

1. voluntarily relinquished all ownership of
2. without reference to any particular person or purpose.

It is necessary to show an intent to give up both title and possession.

Question 39

Rank the following places where a person has found a chattel in order of the probability that the finder may not keep the property when confronted by the claim of the owner of the locus in quo (rank from most likely that the owner prevails to least likely).

1. In the hall bathroom of a single-family house, the finding taking place during a birthday party with 80 guests.
2. On the floor in the main lobby of a bus station, owned by a private intercity bus company, the finding taking place while the bus station is open to travelers.
3. In a fitting room of a clothing store, where customers may try on merchandise, during hours when the store is open to shoppers.
4. Next to the sofa in the living room of an apartment, while the only persons present in the apartment are the tenant and a guest of the tenant.
5. On the lawn in a small park owned and operated by the city, for which the city does not control access or charge an admission fee.

Answer 39

4–1–3–2–5.

(1) Under the public/private place distinction, a finding inside a single-family house normally presents a very strong claim for the homeowner. Most homeowners exercise substantial control and dominion over who may enter for what purposes.
(2) The bus station is privately owned, but the place of finding is as open as any establishment that is open to the public. This is a very strong case for the finder.
(3) The clothing store may be just as open to the public as the bus station, but the place of finding is different. In many stores, there is some restricted access to fitting rooms, and the fitting room is to be used by customers for the limited purpose of trying on clothes. The clothing store may argue that it exercises more dominion and control over the fitting rooms than other areas of the store.
(4) The living room of the apartment, with only one guest present (who presumably is the finder) is the strongest case for the owner of the locus in quo.
(5) The city’s possible claim to a chattel found in its park is the weakest because there is no evidence of the city’s dominion and control. The bus station and the clothing store are closed for part of each day, and proprietors of such establishments usually monitor customers’ conduct more closely than a city park department monitors the conduct of park patrons.

Question 40

What are the elements of a treasure trove?

Answer 40

1. coins or currency
2. antiquated
3. deliberately hidden or concealed
4. sufficiently long ago that the original owner can be considered dead or not discoverable.

Question 41

What is the rule of the finder of lost property?

Answer 41

The finder of lost property has a title superior to all but the true owner and prior possessor.