PROPERTY I CASES
CHAPTER 1: ACQUISITION OF PROPERTY BY FIRST POSSESSION
Johnson v. M’Intosh
1823 p. 4
RULE OF CAPTURE: THE FIRST PERSON TO TAKE POSSESSION OF A THING
OWNS IT (FITFIR)
Facts: Land was sold twice. Tribe sold to II, US govt sold to D. Dispute over who has title
occurred.
- Old Rule: You gained title by “discovering” i.e. settling on the land for the first time,
through Discovery & Conquest-both lead to the same result
BUT: Indians in this case still had the right to live on the land (because property is a
bundle of rights and this is one part of the bundle that was still theirs) but the English
could still kick them off really…Indians in this case had right of possession but noright of
alienation, also this right of occupancy lasted as long as Congress wanted the Indians to
have the land…then they could boot them
- Modern Rule: The govt (court) has the final say on who has title. This is because of our
system of law’s evolution from Roman times: goes with First in Time, First in Right
(FiTFiR) idea—so in this case because England gave title to United States, then
Congress had title so they said the Indians giving land to II was not valid, the US govt
granting to D was proper.
Pierson v. Post
(1805) SCNY p. 19
FACTS: Post and his dogs hunted, chased, and pursued a fox along the beach. Pierson
was aware of the chase, but he interfered and killed the fox and carried it off. Post
claimed a legal right to possession of the animal, and the lower court agreed with him.
- P sued for trespass on the case (where DAS are sought from one who indirectly causes
harm/ loss)
- Lower court rendered verdict for P
- D brought certiori to AC
ISSUE: Did P do enough in his pursuit of the fox to acquire an ownership interest in/ possession
of the fox so as to have a caux against D?
- Did pursuit “reduce” fox to ownership by P
- Is pursuit enough?
HELD: NO- Merely finding and chasing a wild animal does not give a person possession. Even
merely wounding the animal does not give right to possession, unless the pursuer continues
pursuit. The animal must be captured or killed to constitute possession
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Ø PP: First in time, first in right is applied because it is easy to administer
- Rule: Application of the FiTFiR. (The first to kill the fox owns it).
Rationale: Here the FiTFiR rule is applied because it is easy to administer. (Back
then foxes were pests. Here, the easier rule to administer further maximized
destruction of the foxes. BUT: What about custom?
- Rule: If a wild animal is captured and remains wild and then escapes it remains a wild
animal; but a wild animal that is either 1) domesticated or 2) removed from its natural
habitat, does not revert to the wild if it escapes. (Capture of Wild Animals: If wild
animals are captured, usually they belong to the captor. But capture is required; merely
chasing the animal is not enough.)
- Foxes were pests, court didn’t go with the “custom of the industry”
- Dissent: Thinks the trade practices of hunters should govern, and that possession should
be based on reasonable certainty of capture, so Post should have gotten the fox bc being
in hot pursuit is enough
- Ask the huntsmen of the community what they would consider legal right to
possession of animal (custom and usage)
- The public policy argument for foxhunting is to get rid of as many as possible
- This is eliminating the motivation to hunt
- Favors rule wherein pursuit offering the “reasonable prospect” of capture vests in
hunter the sole right to capture
o But policy in property generally overrules
Industry Custom Exception: This is an exception to the finders keepers rule, it’s a rule of
limited application that has been recognized for years: If the original appropriators use the only
custom available and they can be easily identified as the original appropriators—then its theirs.
o Generally the captor must acquire physical control over the animal absent a
custom to the contrary
RULE: Where the externalities of a decision do not affect people outside the
industry, custom is an appropriate standard of property rights (parties’expectation)
Ghen v. Rich (The Exception)
Facts: plaintiff kills a whale, it floats up later with his sword tag in it. Plaintiff claims he has
title to the whale because he shot and killed the whale in question and then someone found
it on the beach when it washed up, the finder on the beach sold it to the defendant at an
auction. The custom and usage in the whaling industry in Cape Cod had been that one who
kills a whale using a specially marked bomb lance owns the whale—this was a big ordinary
custom, the guy who found the washed up whale should have known.
(The plaintiff fisherman shot a fin-black whale with a bomb-lance identifying the whale
as his. The whale immediately sank to the bottom of the ocean, but floated ashore three
days later, 17 miles from where it was killed)
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- Community usage provides that a finder of the whale notifies the owner and they
come and remove the whale
- The owner provides a fee for the finder’s service
- The finder of the whale, instead of following the custom, advertised and sold the
whale to the Defendant
- Neither the Defendant nor the Finder knew the Plaintiff had shot the whale, but
they should have known because the whale had been killed with a bomb-lance
(Constructive Notice)
- The Plaintiff, by using an identifying bomb-lance, did everything practicable in
order to secure the whale
ISSUE: WHOSE WHALE IS IT?
*Although local use should not trump maritime law, a custom, if embraced by the entire industry
for an extended period of time, can be enforced
HELD: It’s Ghen’s whale because custom and usage
- If this local custom allows the whaling business to remain viable, it should be
enforced
Rule of capture works just as well as industry usage and custom because whale was mortally
wounded and marked
- Rule: “Industry Custom” Exception. Here, the FiTFiR rule didn’t fit and wasn’t
easy to administer, so the court recognized that industry custom served a valid
purpose.
- Purpose: If we didn’t utilize the custom, then no one would go whaling because
they wouldn’t realize the fruits of their labor. (Lockean Labor Theory—meaning
if anyone could just take the whale then people wouldn’t hunt for whales cause
their efforts might be fruitless despite them killing one).
§ 1. Would the rule of capture have worked here rather than the custom and usage theory?
· Answer: Yes. Because once you’ve hit the whale with the spear, you have wounded it to
the point of marking it as your own, it will probably die so your capture is virtually certain. (Rule
is that if a wild animal has been mortally wounded or trapped so that capture is virtually certain,
then the animal is treated as captured).
§ 2. When should custom matter and when should it not?
· Answer: This is a policy question. This policy in the case allowed the harvesting of
whales. When custom requires investment and provides action and results that reduce or almost
reduce the commodity to possession, then the custom rule should apply
· EXAM: when you have a fact pattern on the exam and are wondering when custom should
matter and when it should not, note the whale case and do this #2 analysis.
§ 3. When does the custom and usage exception not apply?
· Answer: When it is stifling innovation (like if someone today wanted to go back to the
day where they speared whales and use jumper cables instead, no) The rule is you do not want to
have a rule that “kills” a new way to do things that is better and more efficient, new way that is
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better than the old way and promotes the same goal in a safer/ cheaper way= do not use custom
and usage exception if it would stifle this.
Keeble v. Hickeringill (The Second Exception)
FACTS: The Plaintiff possessed land containing a decoy pond
- The pond assisted the Plaintiff in taking ducks for a profit
- The Defendant, with knowledge of the decoy pond, fired guns scaring away the ducks in
the Plaintiff’s pond
- Defendant involved malice
- Plaintiff sued and was granted recovery
- The Defendant appealed arguing that no cause of action existed because the Plaintiff did
not have title to the ducks
HELD: The Plaintiff is entitled to damages because the Defendant intentionally frightened the
ducks off the Plaintiff’s property (with malice and not for competition)
- Even though the Plaintiff did not have title to the ducks, he was using his land in
accordance with the law
- Since the Defendant interfered with the Plaintiff’s lawful use of his land (right to have a
livelihood), the Plaintiff was entitled to damages
- Animus revertendià animal with intention to return
- When it is obvious that an animal is wild or exotic and probably belongs to someone else,
the owner will probably prevail over the hunter
If a wild animal has been mortally wounded or trapped so that capture is practically certain, it is
treated as captured. A competitor can interfere with another person’s attempt to capture only if
he intends to capture the animal. But a person who does not want to capture the animal, cannot
interfere.
RULE: Even when a competitor might legitimately deprive a constructive owner of
possession, a malicious interferer may not
Rule: When you interfere with someone’s rights (here, the right to have a livelihood) you get
sued and lose (bc of interference)
- This case further shows the instrumental nature of the law (achieving ends)
- Narrowing interference: In these types of cases, your title only has to be better than the
other side’s.
- Constructive Ownership: generally you own the wild animals on your land until they are
taken off your land.
§ EXAM: Remember for this case if there is a fact pattern like this think about whether the
person who is interfering with the other’s land is doing it maliciously or promoting something
like trade or competition
§ Keeble and Pierson both involve the interference with Capture
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§ If you cross the line where you are interfering with someone else’s right to use their own
property, even if you do not actually trespass, you might be liable for damages.
§ Competitiveness is fine, but maliciousness is not
PROBLEMS: More on the Rule of Capture and Wild Animals
1. A trespasses onto B’s land, takes a wild animal, and places it in a cage on her property. C
steals the animal from A. A sues for recovery. Who wins?
- Answer: A would win. Because its btwn A and C, and A’s rights are superior to
C’s. The only thing that matters is A and C.
2. There is a herd of deer on federal land. Apply animus revertendi. What does this mean?
Answer: H is a Hunter and shoots a deer. H prob does not know that is someone else’s
deer. This deer is “semi domesticated” meaning with intention to return, so the deer
belongs to F. But how is H supposed to know that when deer was just roaming?
o Policy argument is for F maybe
o Fairness argument is for H
o Equitable arguments would favor H here because he did not know that it
belonged to the herd keeper, assumed it was a wild animal.
3. Exotic wild foxes kept on this ranch. One escapes and is shot 15 miles from the property. II
sues for the return of the fox. Who Wins?
o Answer: It is an exotic animal. Somehow the owner of the fox figures out that the
guy who shot the fox made a pelt, so he sues to get that pelt back. the hunter would lose
in this case. II wins because the fox was his property because such animals are not native
to that area, so the hunter should have known that if he saw a fox like that it was
someone’s.
4. F is a farmer on her land is is bothered by the wild migrating geese on her land and shoots
them in violation of the fish and game laws. The government confiscates the geese carcasses and
F sues for their return. Who Wins?
o Answer: The government wins. Court says that the government owns the geese, wild
animals that the govt can regulate the taking of them, can confiscate animals taken in
violation of regulations
o When the geese return the next year F sues the govt for the damage to her land by the
geese.
§ The government wins again, even in this situation, the court held that the government
does not own wild fowl and is not liable for damage caused by them.
o Policy reasons explain why the government wins twice:
§ Policy is that these certain geese are not what we want to be hunting for whatever
reason that is why there is game laws against hunting them. If they are coming in and
eating your land and being a nuisance, you still cannot sue the government because we do
not want individual land owners suing the federal govt because the govt is protecting
geese
Problems PG 37: Rule of Capture & Other Fugitive Resources:
o (1) Oil and gas collects in reservoirs under the land. Oil or gas once under the land of
A might migrate to space under the land of B as a result of natural circumstances or
because B drops a well and mines a common pool beneath A’s and B’s land. The oil or
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gas mined by B may have even been placed in the pool by A (gas and oil extracted
elsewhere are often re-injected for storage or secondary recovery)
§ (A) Does A have any remedy at all if B starts draining the pool?
· Answer: The answer is A should go and do likewise. A should seek help from a
state oil and gas agency if B is breaking conservation rules, that is the other option for A.
· In BOOK: says that A might be able to get an injunction against excessive drilling
or non-ratable extraction.
§ (B) Suppose B’s well starts on her land but angles down such that it “bottoms”
underneath land owned by A. Does the rule of capture still apply?
· Answer: B breaks the plane and physically intrudes onto A’s minerals. Breaks the
plane means he drills down and the drill doesn’t quite go onto his land but goes onto
A’s. If B’s drill crosses the plane btwn our property and goes into A’s and A owns the
surface and the minerals, then there is now a “physical entrance” into A’s property. This
is different, cannot do that to A.
§ (C) Suppose that A has re-injected 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
is the result?
· Answer: A was not liable, because, under the rule of capture the gas was no longer
hers. Because fugitive resources are to be treated like “wild animals” when they “escape”
or are “restored to their natural wild and free state” the dominion and individual
proprietorship of any person over them is at an end and they resume their status as
common property.
§ Rule of Capture: everybody can intrude, unless you break a plane. (B example is an
exception to the rule of capture)
Popov v. Hayashi
Superior Court of San Fransisco County, California, 2002
p. 46
Facts:
Barry Bonds hit his 73rd home run of the season, setting a new MLB record. Plaintiff allegedly
caught the ball, but fell down before it could be sure, where the ball rolled away. It was then
picked up innocently by the defendant and ended up in his possession. A fight ensued, which was
recorded by reporter Keppel. Plaintiff then sued defendant for conversion of the ball.
Issues:
What level of control is needed to gain possession of a ball that goes into the stands?
To whom does a ball belong if one catching it is violently stopped from doing so and
another picks up the ball?
Plaintiff's Argument:
Plaintiff stopped the horizontal momentum of the ball and had obvious immediate plans to finish
obtaining it. Possession had been recognized with similar previous cases involving wild animals
and ship wreckages.
Defendant's Argument:
Plaintiff failed to control ball enough to gain possession of it.
Rules:
One must retain control of a ball after an initial contact to obtain possession of it.
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Page 86If one does significant but incomplete stops to obtain possession of a piece of
abandoned personal property and the effort is interrupted by the unlawful acts of others,
the actor has a legally cognizable pre-possessory interest in the property which
constitutes a qualified right to possession which can support a cause of action for
conversion.
Reasoning:
Unlike wild animals or ships, it is possible to physically take control of a ball and one must do
so. However, violent acts stopped Popov from doing so. Policy and fairness say that he has
enough of an interest to support a conversion. However, Hayashi also has a completely valid
right to the ball. Therefore, the two men must share the value of the ball.
Holding:
One must retain control of the ball after an initial contact to obtain possession of it. As Popov
was hindered from doing so, he obtains a pre-possessory right to the ball. Hayashi also has right
to the ball however, so both men have right to half the value of the ball. The ball is to be sold and
the proceeds split between the men.
Hayeshi had physical possession, but Popov wanted ownership and sued — pleading conversion,
trespass to chattel, injunctive relief and constructive trust.
In its decision, the California judge partially ruled for Popov — holding that he had a “pre-
possessory interest” in the baseball once it went in his glove, and that interest was unlawfully
interrupted by the Crowd.
Initial Catcher of Homerun Ball) v. (Possessor of Dropped Homerun Ball) 2002 WL 31833731
(Cal. Super Ct., San Francisco County 2002) BARRY BONDS’ RECORD-SETTING
HOMERUN BALL IS SUBJECT TO EQUAL CLAIMS BY TWO FANS, NEITHER OF
WHOM ENDS UP WITH THE BALL
Instant 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.
Black Letter Rule Where an actor undertakes significant but incomplete steps to achieve
possession of a piece of abandoned personal property and the effort is interrupted by the
unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property,
which can support a cause of action for conversion.
PROCEDURAL BASIS Trial court consideration of the plaintiff’s tort claims.
FACTS In 2001, Barry Bonds broke the baseball homerun record by hitting his seventy-third
homerun. Fans anticipated the historic event and came to the game prepared to catch the
homerun ball, knowing its potential value. They positioned themselves in the arcade area, where
Bonds’ homerun hits were likely to go. When the record-winning ball was hit, it did indeed soar
into the arcade area, and Popov (P) reached up with his glove to catch it. The netting of Popov’s
(P) glove made contact with the ball, whereupon the crowd of spectators around Popov (P)
descended upon him. Popov (P) and others, including Hayashi (D), were forced to the ground.
Popov (P) lost possession of the ball. As Hayashi (D) was lying on the ground, he saw the loose
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ball and put it in his pocket. It is unknown whether Popov (P) would have retained possession of
the ball if the crowd had not descended upon him. Popov (P) sued Hayashi (D) for conversion,
trespass to chattel, injunctive relief, and constructive trust. ISSUE Did the plaintiff have a claim
for conversion?
DECISION AND RATIONALE (McCarthy, J.) Yes. Where an actor undertakes significant but
incomplete steps to achieve possession of a piece of abandoned personal property and the effort
is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory
interest in the property, which can support a cause of action for conversion
. The tort of conversion is the wrongful exercise of dominion over the personal property of
another.
® There must be actual interference with the plaintiff’s dominion.
® Wrongful withholding of property can constitute interference even when the
defendant lawfully acquired the property.
® If the person entitled to possession of the personal property demands its return,
the unjustified refusal to give it back is conversion.
® Although the act constituting conversion must be intentionally done, there is no
requirement that the defendant know that the property belongs to another.
ISSUE: The question in this case is whether Popov (P) achieved possession or the right to
possession as he attempted to catch and hold onto the ball.
D’s ARGUMENT: Under the premise known as “Gray’s Rule,” - a person who catches a ball
once it enters the stands is its owner.
® A ball is caught if the person has achieved complete control at the point in time when the
momentum of the ball and the person catching the ball cease.
® A baseball that is dislodged by incidental contact with another fan before momentum has
ceased is not possessed.
® The first person to pick up a loose ball and secure it becomes the possessor.
P’s ARGUMENT: professorial arguments apply- possession may occur if an actor is actively and
ably engaged in significant efforts to establish complete control, when those efforts are
reasonably calculated to result in unequivocal dominion and control at some point in the near
future.
COURT: Chooses Gray’s Rule.
- Popov (P) has not established that he would have retained control of the ball after all
momentum ceased and after any incidental contact with others. He therefore did not
achieve full possession. That finding, however, does not resolve the case.
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- Popov (P) was attacked. He should have had the opportunity to try to complete his catch
unimpeded by unlawful activity.
COURT ADOPTS THIS RULE:. If Popov (P) undertook significant but incomplete steps to
achieve possession of the ball and his effort was interrupted by the unlawful acts of other fans,
Popov (P) has a legally cognizable pre-possessory interest in the property, which can support a
cause of action for conversion. However, Hayashi (D) was not a wrongdoer. He was a victim of
the same bandits that attacked Popov (P). But his possession of the ball is encumbered by
Popov’s (P) pre-possessory interest. Awarding the ball to Popov (P) would be unfair to Hayashi
(D), because both have equally valid claims to the ball.
HOLDING: each man has an equal and undivided interest in the ball. In order to effectuate this
ruling, the ball must be sold and the proceeds divided equally between the parties.
ANALYSIS:
® The court also noted that a 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.
CASE VOCABULARY CHATTEL: An item of personal property as opposed to real property.
If the item is moveable and is not attached to or has no connection with land, it is called a
personal chattel (e.g.,car, stereo (see personalty)). CONVERSION: Tortious act of depriving an
owner of his property without his permission and without just cause. An illegal taking, detention,
use, assumption of ownership, or destruction of the property of another all constitute conversion.
PERSONALTY: Personal property; movable property; property that is not real estate. If
personalty is affixed to real estate, it becomes part of the real estate if removing it would damage
the realty.
As a matter of fundamental fairness, Mr. Popov should have had the opportunity to try to
complete his catch unimpeded by unlawful activity. To hold otherwise would be to allow the
result in this case to be dictated by violence. That will not happen.
Although Popov had some interest in the ball, Hayeshi was the one who took actual possession
(gaining complete control of the ball and stopping momentum), and did so using within the
bounds of both law and baseball custom.
In the end, the judge was unable to figure out which of the two should win:
Neither can present a superior argument as against the other.
Mr. Hayashi’s claim is compromised by Mr. Popov’s pre-possessory interest. Mr. Popov cannot
demonstrate full control. … Their legal claims are of equal quality and they are equally entitled
to the ball.
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The court therefore declares that both plaintiff and defendant have an equal and undivided
interest in the ball.
Id. In the end, the two co-owners sold the ball. The case would have come out differently if
Hayashi was seen as a wrongdoer (Popov would get full ownership) or if Popov had dropped the
ball without being wrongfully jostled (Hayashi would get full ownership). The halfsies outcome
is somewhat unusual in property law but was made easier because both parties announced they
wanted to sell the ball — it was much easier to split the money rather than share possession of
the ball itself.
CHAPTER 2: Acquisition of Property by Subsequent Profession: Find, Adverse Possession
and Gift
A. Acquisition by Find
Armory v. Delamirie
1 Strange 505 (1722), p. 54
(Finder) v. (Subsequent Possessor) 1 Strange 505 (1722) COURT DECLARES THAT THE
FINDER OF LOST PROPERTY HAS A TITLE SUPERIOR TO ALL BUT THE TRUE
OWNER
Facts Armory (P) found a jewel and took it to Delamirie’s (D) jewelry shop. Delamirie (D)
refused to return the jewel. Black Letter Rule The finder of lost property has a title superior to all
but the true owner.
PROCEDURAL BASIS Appeal from judgment in action to recover property found by plaintiff.
FACTS Armory (P) found a jewel and took it to Delamirie’s (D) jewelry shop to have it
appraised. Delamirie’s (D) apprentice removed the stones. Delamirie (D) offered three half pence
to Armory (P) for the jewel. Armory (P) refused this offer and demanded the jewels to be
returned to him. Delamirie (D) refused to return the stones. Armory (P) sues.
ISSUE Does the finder of lost property have a title superior to all but the true owner?
DECISION AND RATIONALE Yes. A finder of property does not acquire an absolute title; the
true owner has absolute title. However, the finder does acquire a title superior to the rest of the
world.
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® Since Armory (P) found the jewel, and since Delamirie (D) is not the true owner, Armory
(P) has a superior title. Judgment affirmed.
ANALYSIS: The rule announced in this case is called the prior possessor rule. It achieves
multiple social goals: (1) It protects an owner who cannot prove that he is the true owner. (2) It
protects individuals who entrust goods to others. Entrusting goods to others promotes social
welfare. For example, an individual may entrust his clothes to the laundry without worrying that
he may not get them back. Since he is the prior possessor, he will prevail over the laundry. (3) It
protects the expectations of prior possessors, who expect to prevail. (4) It promotes peaceable
possession. If prior possessors did not prevail, individuals might begin to steal property, hoping
that the law would protect them.
CASE VOCABULARY TROVER: A suit to recover the value of the plaintiff’s chattel that the
defendant has converted.
Hannah v. Peel
K.B. 509 (1945), p. 57
(Finder) v. (Property Owner) COURT DECLARES THAT A PROPERTY OWNER DOES
NOT NECESSARILY HAVE TITLE TO ALL THAT IS FOUND ON HIS PROPERTY
Facts Hannah (P) found a brooch on Peel’s (D) property. Peel (D) never lived on this parcel of
property. Black Letter Rule If the owner of property has never occupied his land, the finder of
property on this land has a superior title against the land owner.
PROCEDURAL BASIS Action to recover money found by plaintiff.
FACTS In 1938 Peel (D) purchased a home. He never lived in this home. In July of 1940 Peel’s
(D) home was requisitioned by the government. In August of 1940 Hannah (P) was stationed at
this home of Peel’s (D). While stationed there, Hannah (P) found a brooch in a room being used
for a sick bay. The room was in a remote place of the house. At this point, Peel (D) had no
knowledge of the brooch. Hannah (P) gave the brooch to the police. Two years later, since the
true owner was not found, the police awarded the brooch to Peel (D). Hannah (P) sues for
damages or replevy. Hannah (P) contends that he has superior title, since he is the finder. Peel
(D) contends that he has title, since he owned the land where the brooch was found.
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ISSUE If a landowner has never lived on a parcel of land, does a finder of property on that land
have superior title to the landowner?
DECISION AND RATIONALE (Birkett, J.) Yes. The case authority gives support to the
contentions of both parties. There are three principle cases in this area.
® First, Bridges v. Hawkesworth. In that case, a bag of money was left in a shop. The bag
was left in that area of the shop accessible to the general public. The principle issue in
that case was whether superior title lay in the finder or in the shop owner. The court
applied the old rule: superior title goes to finder. The court ruled this way because the
shop owner never possessed the bag and because the place where the bag was found was
open to the public.
® In South Staffordshire Water Co. v. Sharman, a servant found two rings on the
landowner’s land while working for the landowner. The issue in that case was whether
superior title lay in the finder or the landowner. They applied a new rule: superior title
goes to the landowner. The court ruled this way because the finder worked for the
landowner. By employing the servant, the landowner was exercising control over that
part of the land where the rings were found.
® In Elwes v. Briggs Gas Co., a prehistoric boat was found in land that was leased to the
defendant. The issue was whether the boat belonged to the lessor or lessees. The court
ruled that the boat belonged to the lessor.
® From these cases the following is evident:
o 1) A landowner possesses everything attached to or under his land and
o 2) a landowner does not necessarily possess that which is unattached to his land.
In this case, since the brooch was not attached to the land, neither Bridges v.
Hawkesworth or South Staffordshire Water Co. v. Sharman governs.
This court chooses to follow Bridges v. Hawkesworth in this case. It is noted that this result
rewards Hannah (P) for meritorious conduct, such as giving the brooch to the police.
Judgment for Plaintiff. 18
ANALYSIS: Lost property goes to the finder.
® This “prior possessor rule” protects owners who cannot prove title, it encourages the
entrusting of goods to others, it protects the expectations of possessors, and it promotes
peaceable possession.
o One exception to the rule is that if an employee finds a lost article on the
employer’s premises, the property goes to the owner. One reason for this is the
view that the employee is acting on behalf of the employer. There is a criticism of
this exception, however. It discourages finders from reporting found articles. If
they do not report the lost article, they keep it. If they do report it, they lose it.
Reporting lost articles is a social goal, because it helps return lost
property to the true owner.
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o Another exception is that lost property found under the soil or embedded in the
soil belongs to the landowner. The reason for this rule is that owners of land
expect that they own not just the surface, but all that lies underneath it. It also
discourages trespassers from coming onto land in search of treasure.
CASE VOCABULARY CHATTELS: Personal property, as distinct from real property, or land.
DEMISE: To transfer property from one to another. The conveyance of an estate in property
from one person to another. FREEHOLD: An estate in land that entitles one to current
possession, sale, etc. FREEHOLDER: Owner of land. LOCUS IN QUO: The area under
consideration. PARCEL: An item of personal property; also used to mean a plot or area of land.
WRIT: A judicial order to perform some act.
McIvoy v. Medina
93 Mass. (11 Allen) 548 (1866), p. 63
(Finder) v. (Shop Owner))
COURT RULES THAT A “FINDER” DOES NOT HAVE TITLE TO MISLAID PROPERTY
Facts A customer of the shop owner placed his wallet on the counter, but neglected to remove it.
McAvoy (P) found the wallet. Black Letter Rule A finder has no title to property that is mislaid.
PROCEDURAL BASIS Appeal from judgment in action to recover money found by plaintiff.
FACTS A customer of a shop placed his wallet on the counter but neglected to remove it; the
customer had mislaid his wallet. McAvoy (P) found the wallet and gave it to the shop owner
Medina (D) to keep until the true owner should claim it. If the true owner did not claim it,
McAvoy (P) requested that Medina (D) advertise the lost money. The true owner was never
found and Medina (D) refused to turn the money over to McAvoy (P).
ISSUE Does the finder of mislaid property have title to that property?
DECISION AND RATIONALE (Dewey, J.) No. The ordinary rule is that a finder of lost
property has title superior to all the world except the true owner. Here, however, the property
was mislaid, not lost.
® When property is mislaid in a shop, the shop owner has a duty to safeguard the property until the true
owner returns. Therefore, a finder can never gain title to mislaid property.
® Bridges v. Hawkesworth is distinguishable. In that case, the property was not voluntarily placed
somewhere and then forgotten. Rather, in that case, the property was lost. In this case, since the property
was not lost but mislaid, McAvoy (P) can claim no title. Judgment affirmed.
Analysis: Lost property goes to the finder, but mislaid property goes to the shop owner.
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® One way to understand this rule is to look to one of the goals of property law, to promote the return of lost
property to its true owner.
o If property is mislaid, the true owner will likely retrace his steps and return to the shop where he
mislaid it. Thus, the rule that places mislaid property in the hand of the shop owner will more
efficiently return mislaid property to the true owner.
There are two criticisms to this rule.
First, it is difficult to determine whether property has been mislaid or lost. For
example, a wallet found on the floor could easily have fallen through a person’s
pocket and been lost, but it also could have been mislaid on a counter and
knocked to the floor by another customer.
The second criticism is that individuals retrace their steps for both lost and
mislaid property.
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B. Acquisition by Adverse Possession
The Theory and Elements of Adverse Possession
Van Valkenburgh v. Lutz
1952, p. 76
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