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Personal Property I. Terminology A. Personal Property Is All Property Not Classified As Real Property

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Personal Property I. Terminology A. Personal property is all property not classified as real property. i. Tangible (e.g. car or books) 1. Consumable 2. Non-consumable ii. Intangible (e.g. stocks or bonds) B. Possession exists if a person has (all elements) i. Actual dominion and control over property ii. intent to assume dominion over it iii. With or without a claim of ownership C. Title exists if person has ownership with right to possession and transfer. II. Right to Exclude An owner of property has the right to exclude others A. Exceptions i. Denying the rights of individuals who are parties with owner in consensual transactions relating to the use of the owner’s property State v Shack ii. Necessity, private or public B. Damages for trespass i. Real Property DO NOT need damages 1. Intentional trespass a. Punitive damages may be supported only by nominal damages Jacque v Steenberg Homes, Inc. ii. Chattels MUST have damages to recover 1. Computer network Must have interference with the normal operation of the computer network, even if the owner says you can’t use it, sender is not liable. Intel Corporation v Hamidi III. Acquisition of Title by Judgment A. Replevin Replevin is an action to recover the chattel itself and exists if PL i. Has title or right to possession ii. Property is unlawfully detained iii. DF wrongfully holds possession B. Trespass Trespass is an action to recover money damages for dispossession C. Trover Trover is an action to recover the value of the chattel along with damages for dispossession i. Anyone in actual possession can sue ii. Tortfeasor AND purchasers (even bona fide) can be held liable iii. Value determined as of the date of conversion iv. Title vests to converter 1. Relates back to the date of conversion v. Until the judgment is satisfied, the owner may sue in replevin Rule of Capture IV. Rule of Capture The first person to take possession of a thing owns it A. Wild Animals, Natural Gas i. To acquire title you must acquire (any element) 1. Possession Physically capture / possess Pierson v Post 2. Constructive Possession Trap, with door shut Young v Hitchens a. Un-severed gas beneath the surface of property is in constructive possession Anderson v Beech Aircraft Corp. 3. Pursue and mortally wound Mortally wound animal, without leaving pursuit, such that actual possession is inevitable, a vested property right in the animal accrues that cannot be divested by another’s act in intervening and killing the animal Pierson v Post a. Mere pursuit does NOT constitute dominion and control 4. Custom Followed a. in certain trades (e.g. whaling), customs are adhered to (e.g. first to harpoon) ii. You can lose title if (any element) 1. Escape Escaping and resuming natural liberty into the commons a. Exceptions i. Habit of Return If an animal escapes, but periodically returns to the owner’s home ii. Escapes, but pursued to recapture If an animal escapes, but is still pursued by the owner iii. Marked Animals Modernly, courts allow title to be retained if animal is marked and the owner is exercising effort to recapture it. iii. Interference by 1. noncompetitor Animal title goes to competitor; noncompetitor liable a. A man is allowed to sell and dispose of his land for his profit, and thus, allowed to recover damages based on interference with the intent of his property. Keeble v Hickeringill 2. competitor Rule of capture applies a. Exception – Pre-possessory interest Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned property and 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. Popov v Hayashi iv. Role of Property 1. Animals or un-severed gas on a person’s property belongs to the landowner a. EXCEPTION Severed gas is treated with the Rule of Capture Anderson v Beech Aircraft Corp. Acquisition by Find V. Acquisition by Find A. Law of Finders A finder has title against everyone but the true owner IF he (all elements) i. Actually discovered ii. Intent to take possession iii. Regardless of 1. Wrongful possession Even a possessor who obtained possession wrongfully retains rights 2. Lost by possessor A possessor who loses property after acquiring it may recover from subsequent possessors Armory v Delamirie A finder becomes a converter of the thing belonging to the true owner IF (any element) i. Attempts to use or transfer i. Finder cannot transfer rights greater than he/she has B. Lost, Mislaid, Abandoned, Treasure Trove To determine if property is lost, mislaid, abandoned, or treasure trove, judging from place where found, would a reasonable person conclude that owner had parted with possession in such a manner. i. Lost Property 1. Defined Property is lost IF owner parted with it (all elements) a. Involuntarily b. Unintentionally c. Without knowing where it may be found 2. Right of possession to the finder against all but owner IF (all elements) a. NOT a trespasser i. A trespasser-finder will not be given possessory rights. They will be given to the landowner. b. NOT found in scope of employment i. If the employee found property by virtue of an act specifically directed by the employer, the employer acquires possessory rights. South Staffordshire Water Co. v Sharman c. NOT a guest or licensee d. Land is (any element) i. Publicly owned ii. Privately owned (any element) o Open to the public a. Unless the property of another has been reduced to the custody or protection of the property owner Bridges v Hawkesworth o NOT open to the public, but owner NOT in possession a. A person does not necessarily possess objects lying unattached to property of which he is the owner. Where an object has never been reduced to possession by the owner of the property upon which it is found, the finder of the lost article obtains title superior to all except the true owner. Hannah v Peel e. Item is NOT buried i. Items buried belong to the landowner due to constructive possession ii. Mislaid Property 1. Defined Property is mislaid IF owner parted with it (all elements) a. Voluntarily b. Intentionally c. Without knowing where it may be found (Forgotten) 2. Right of possession to the landowner against all but owner a. Landowner held as bailee to protect true owner McAvoy v Medina (wallet left in barber shop) Benjamin v Lindner Aviation Inc. ($18,000 found in wing of airplane) Criticism: 1) Penalize finder for disclosing found property; less chance for true owner 2) Presupposes that owners of mislaid property, but not owners of lost property, will go through a mental re-enactment to ascertain where their lost property might be 3) Require the court to suppose lost or mislaid from intentions of owner iii. Abandoned Property 1. Defined Property is abandoned IF owner parted with it (all elements) a. Voluntarily b. Intentionally c. With intention to relinquish all rights, title, and interest in property 2. Right of possession to the finder against universe iv. Treasure Trove 1. Defined Property is treasure trove IF property is (all elements) a. Concealed for a length of time - the owner is probably dead/undiscoverable b. Contains element of antiquity 2. Right of possession to a. Traditionally i. the finder against all but owner Regardless if trespasser b. Modernly i. Apply rules of lost property to landowner since mostly buried ii. Discourage trespass C. Duties of Possessors A finder who acquires possession of the property has a duty to (all elements) i. Bailee As a quasi-bailee, the finder has a right to all except the owner and can even sue to regain possession. ii. Find owner Reasonable means of discovering the true owner, if at hand, should be taken iii. Keep property with due care D. Maritime Law i. Salvage Law Original owner of sunken ship and its cargo retains ownership, but must pay hefty salvage fee to finder. 1. Exceptions a. Previous owner abandons property (any element) i. With clear and convincing evidence ii. Ancient and long lost shipwreck infers abandonment, unless previous owner appears Columbus-America Discovery Group v Atlantic Mutual Insurance Company b. Abandoned shipwreck Act of 1987 The law of salvage and finds does not apply to shipwrecks covered by the act, which lays claims to many abandoned shipwrecks in submerged waters of the US and transfers title to the states in whose waters they are found. Bailments VI. Bailment A bailment is the relationship created when possession of a chattel is transferred from one person (the bailor) to another (the bailee) for a limited purpose. A. Bailment Creation A bailment is created when (all elements) i. Physical Possession by bailee 1. The bailee must have physical control of the chattel. ii. Intent to possess by bailee 1. The bailee must have intent to exercise physical control iii. Knowledge of possession by bailee 1. The bailee must know he has possession of a chattel belonging to another 2. Property concealed in bailed property A bailment does NOT exist with respect to something concealed within bailed property, if the bailee lacks knowledge of its existence. iv. Consent by the bailee 1. A delivery without acceptance by the bailee will not create a bailment 2. Either express or implied agreement 3. Mere custody of a chattel is not sufficient in law to constitute possession. B. Bailee’s Duties i. Exercise of due care A bailee must exercise due care of the bailed goods, BUT is not an insurer of their safety 1.
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