One Week Orientation Program: Substantive Class Component

One Week Orientation Program: Substantive Class Component • Five Property Classes • Review Session Before Exam • Traditional Essay Exam • Under time pressure • Exam Post-Mortem • Substance to be Covered: The Finders Cases • In each case, a “right of occupancy” is claimed • Many of the opinions • cite one another or • have been cited to the court by the attorneys arguing the case • Your task is to be able to do what the attorneys have done Donald J. Weidner

Goddard v. Winchell (1892) • The aerolite case. • What is the state’s “Supreme Court?” • What is “an action in replevin?” • What were the findings of fact by the lower court? • Is the defendant asserting his rights: • Claiming that the meteor is his because he paid for it in good faith?; or • Claiming that he purchased and received a transfer of all of the rights of the finder? Donald J. Weidner

Goddard v. Winchell (cont’d) • Was the defendant’s purchase one that was made in good-faith? • What does good faith mean in this context? • Does it refer to one who takes free of knowledge or notice of a fact that could support a claim of another? • Does that describe the purchaser here? • Does it refer to one who takes in the belief that his or her claim is the best? • Are there any facts that indicate the purchaser’s good faith in this sense? • A deep discount might suggest otherwise, but here? • A purchaser, even a good faith purchaser (BFP), can ordinarily only assert such rights as the seller had. • Was the finder-neighbor-seller a trespasser? Donald J. Weidner

Goddard v. Winchell (cont’d) • What were the conclusions of law by the district court? • Why was it a “conclusion of law” (rather than a finding of fact) that “the aerolite became a part of the soil” • What was the error alleged upon appeal? • Essentially, the basic error complained of is that the trial court applied an inappropriate rule of law. • What are the relevant rules of law? • All “ancient” and “of undoubted merit” Donald J. Weidner

Goddard v. Winchell (cont’d) • The opinion contains two statements of the rule being asserted by the owner of the locus in quo (place in which the item was found): • Whatever is affixed to the soil belongs to the soil. • A permanent annexation to the soil, of a thing in itself personal, makes it a part of the realty. Donald J. Weidner

Goddard v. Winchell (cont’d) • The opinion contains three statements of the rule for the finder: • Occupancy is the taking possession of those things which before belonged to nobody. • The finder of lost articles, even though they are found on the property, in the building, or with the personal effects of third persons, is the owner thereof against all the world except the true owner. • Whatever movables are found upon the surface of the earth, or in the sea, and are unclaimed by any owner, are supposed to be abandoned by the last proprietor, and as such are returned into the common stock and mass of things; and therefore they belong, as in a state of nature, to the first occupant or finder. Donald J. Weidner

Goddard v. Winchell (cont’d) • The “movable” rule causes most students the greatest confusion. Let’s look again: • Whatever movables are found upon the surfaceof the earth, orin the sea, and are unclaimed by any owner, are supposed to be abandoned by the last proprietor, and as such are returned into the common stock and mass of things; and therefore they belong, as in a state of nature, to the first occupant or finder. • Proceeding through the words of the rule • First, is it not clear that a 66-pound stone is “movable?” Donald J. Weidner

Goddard v. Winchell (cont’d) • No, it is not clear. Said the court: • “movables” does not mean “that which can be moved.” • Rather, it refers to “such things as are not naturally parts of earth or sea, but are on the one or in the other.” • “what nature has placed” [on/in?] the earth “at its formation” “or through the natural processes” of “acquisition and depletion” “is a part of the earth” and not a movable. Donald J. Weidner

Goddard v. Winchell (cont’d) • The court is setting aside the “movables” rule both by (a) focusing on the words of the rule and by (b) distinguishing the facts of this case from the facts of the cases awarding a movable to the finder. • “In determining which of these rules is to govern in this case, it will be well for us to keep in mind the controlling facts giving rise to the different rules.” • Although the court does not tell us about the facts of those cases. Donald J. Weidner

Goddard v. Winchell (cont’d) • Based on the words of the “movables” rule, what else might the OLQ have argued to avoid its application? • Building upon “upon?” • Building upon “unclaimed by any owner?” • Building upon “supposed to be abandoned by the last proprietor?” • Building upon “returned to the common stock” • Building upon “occupant?” • Building upon “finder?” Donald J. Weidner

Goddard v. Winchell (cont’d) • Consider a similar approach to other statements of the rule that states when the finder wins. • Occupancy is the taking of possession of the things that before belonged to no one. • The finder of lost articles on the property or in the building of another is the owner as against all the world but the true owner. Donald J. Weidner

Goddard v. Winchell (cont’d) • What reason did the Iowa Supreme Court give for holding for the OLQ? • The court analogized to cases “by which the owners of riparian titles are made to lose or gain by the doctrine of accretions.“ • This aerolite looks like other rocks or soil brought by nature, specifically an enlargement of the property of the OLQ brought about by accretion. • Hence, it should be treated the same as soil added to land by accretion, as belonging to the OLQ. • Note 2 asks: “Was the court’s reliance on the analogy of accretion sound?” • What is analogy? • “A form of reasoning in which one thing is inferred to be similar to another in a certain respect, on the basis of known similarities in other respects.” Donald J. Weidner

Goddard v. Winchell (cont’d) • The language of accretion is drawn from riparian (related to the bank of a natural watercourse) rights doctrine concerning situations in which title to a person’s land is described as bounded by a stream or other body of water. • What happens to land ownership when the stream described as the boundary changes course? • Riparian rights doctrine distinguishes between • Accretion (“accretive changes”) • Accretive changes are gradual, over time • Avulsion (“avulsive changes”) • Avulsive changes are sudden. • Are the riparian rights cases distinguishable from the finders cases? • Do the riparian rights cases involve finders? • Do the finders cases involve disputes about title to land between competing fee owners? • How do you decide which rule of law to apply? Donald J. Weidner

Goddard v. Winchell (cont’d) • Who should win and why? • What are the reasons for the rules? • What are the conflicting considerations? • Recall the court asked: “who shall attempt to determine what part of the rocks . . . are of meteoric acquisition?” • State more directly the court’s concern. • Who do you think (the finder or the OLQ) introduced the fact that “from six to seven hundred of these stones fall to our earth annually”? • Which way does that fact cut in your mind and why? • Analogize to the situation in which, on its way into the ground, the meteorite crashes through a building owned by the OLQ. • Is the tenant’s interest important? • What were the “enlightened demands of the time” asserted by finder? Donald J. Weidner

Goddard v. Winchell (cont’d) • Is there anything in the opinion that suggests “market” mechanisms will direct the asset to its highest and best use? • “The aerolite is of the value of $101, and this fact, if no other, would remove it from uses where other and much less valuable materials would answer an equally good purpose.” Donald J. Weidner

Goddard v. Winchell (cont’d) • Note 3 asks: What result would an Iowa court reach if all the facts were the same except that the object in question is a remnant of a space vehicle launched by one making no claim to it? • Can you state the difference between the holding of Goddard (the rule of the case) and its dictum? • Goddard itself said (without citing specific case authority), to look beyond the dictum to the holding: • “In determining which of these rules to govern in this case, it will be well for us to keep in mind the controlling facts giving rise to the different rules . . . .” • “we have in mind the facts giving rise to the rules cited . . . .” Donald J. Weidner

Note 6 on Page 96 • Suppose that a valuable pool of oil lies under land owned by Neighbor N and extends under land owned by Driller D. Driller D drills a well and commences pumping oil, a consequence of which is that oil under N’s land moves to D’s well. • Has D taken N’s oil under Goddard? • The court in Goddard would not let the finder take the OLQ’s aerolite • The oil was not “movable” • The oil was buried more deeply and thoroughly than the aerolite. • Some say: no, D did not take N’s oil because D was the first to reduce it to possession, relying on an analogy to the law of capture of wild animals. • Wild animals are migratory and not the property of anyone until someone reduces them to possession Donald J. Weidner

Note 6 on Page 96 (cont’d) • Others say: no, although N originally owned the oil, the ownership passed from N to D when the oil migrated under D’s land and was extracted by D as part of D’s exercise of D’s “correlative rights” of land ownership. • Why are courts reluctant to impose liability upon the driller who causes drainage of oil or gas from beneath another’s land? • Does the prevailing theory ever make a difference? Donald J. Weidner

Note 7 on Page 96 • In order to store “extraneous gas,” Storer S pumps it into S’s own land. Some of the gas migrates and becomes stored under neighbor N’s land. • May N tap a well into the storage area and withdraw the extraneous gas? • Is the analogy to wild animals appropriate? • “Courts have held that the ownership acquired by a possessor of a wild animal is terminated if an animal escapes.” • Does S’s ownership terminate when S pumps it below ground? • Can you distinguish the two situations? • If N may not tap into the well and claim the gas as her own, may N enjoin the storage of the extraneous gas (enjoin a trespass)? • If N may not enjoin the storage of the gas, may N recover money damages for the use of her land for storage? • S has released a wild animal? Cases split. Donald J. Weidner

The Bramble Bush There was a man in our town and he was wondrous wise he jumped into a BRAMBLE BUSH and scratched out both his eyes— and when he saw that he was blind with all his might and main he jumped into another one and scratched them in again. Donald J. Weidner

Eads v. Brazelton (1861) • Ship sank. Plaintiff located it 27 years later, in December, 1854, and placed range markers on trees to later locate the wreck and raise its cargo. • Plaintiff arrived with his diving boat the next month, in January, 1855, and fastened a buoy to a weight that rested on the wreck. • With the intention of putting his boat over it the next day. • He was detained by other business and by the danger and difficulties (the need to make repairs to the boat and to the cargo lifting apparatus). • Defendants, 9 months later, stopped a boat near the shore, allegedly searched for and found the wreck, placed their boat over it, and commenced raising the lead. • There was “no satisfactory evidence” that the defendants used the plaintiff’s tree markers to locate the wreck. • Nor was it established that the defendants knew the plaintiffs were about to begin work on the wreck. Donald J. Weidner

Eads v. Brazelton (cont’d) • What does it mean that the plaintiff “filed his bill on the chancery side of the” court? • This reflects the distinction between law versus equity • What is the relief requested? • To enjoin the defendant, the “second finder,” from interfering with the plaintiff, the “first finder” • To declare the plaintiff “first finder” the owner of the wreck. • To obtain compensation for what defendant “second finder” took from the wreck. . What result in the court below? Donald J. Weidner

Eads v. Brazelton (cont’d) • The Supreme Court said the lead was “wholly abandoned by the owners.” • Intent is key to abandonment • Is that conclusion that the lead was abandoned a finding of fact or a conclusion of law? • “the law would so imply from the [27 year] term of the loss and from the fact of its having been covered by an island [with trees growing from 30-40 feet tall].” • “All reasonable hope of acquiring the property must have been given up” • No effort was made to save the cargo while it was being covered up by the island. • Was the mere passage of time sufficient? • Was that a holding of this case? Donald J. Weidner

Eads v. Brazelton (cont’d) • What if the court had not been willing to say the property was abandoned? • Is it not clear that, if the property were not abandoned, the plaintiff could not sue? • Because there is a “true owner” out there? • The property presumably was not “lost” • See the term “qualified ownership” (Note 2)? • Is the following language the “black letter” rule of the case? • “The occupation or possession of property lost, abandoned or without an ownermust depend upon an actual taking of the property with the intentto reduce it to possession.” Donald J. Weidner

Eads v. Brazelton (cont’d) • Note 6 asks whether the decision in Eads would have been different if the defendants had relied upon the first finder’s buoys and tree markings. • FACTS: I awakened on my boat in its slip in Carrabelle to discover that Mel Fisher’s fleet had been driven into port by a storm. Assume that my next-slip neighbor found out where Mel had been anchored offshore, presumably over the wreck of a ship that sunk laden with treasure. • May my neighbor and I put our dive tanks in our boat, zip out to the site before Mel gets back to it, and start raising treasure? Donald J. Weidner

Eads v. Brazelton (cont’d) • To decide my Carrabelle situation, is it appropriate to analogize to the wild animal cases? • Note 5. Pierson v. Post. A hunter and his hounds were closely pursuing a fox on public land when the fox happened to run near a person who shot and killed the fox and carried it away. If the hunter sues the killer to recover the fox, or its value, what result in light of Eads? • In the wild animal cases, • Probable capture by the first hunter is not enough for the first hunter to recover • Practically inevitable captureis enough for the first hunter to recover (at least according to some) Donald J. Weidner

Eads v. Brazelton (cont’d) • What does Eads say Mel Fischer must do to defeat my claim? • Marking the trees and affixing a temporary buoy were “not acts of possession; they only indicated Brazelton’s desire or intention to appropriate the property.” • On the other hand: “Brazelton’s act of possession need not have been manual; he was not obliged to take the wreck or the lead between his hands; he might take such possession of them as their nature and situation permitted” • There must be “an actual taking” but you do not have to “take” either the wreck or the lead in your hands? Donald J. Weidner

Eads v. Brazelton (cont’d) • More from Eads: • “Placing his boat over the wreck, with the means to raise its valuables and with persistent efforts directed to raising the lead, would have been keeping the only effectual guard over it, would have been the only warning that intruders—that is, other longing occupants—would be obliged to regard, and would have been such acts of possession as the law would notice and protect.” • What about the actual taking? • By actual taking we do not mean you must actually take • Why was mere discovery not enough to give the first finder ownership rights? Donald J. Weidner

Goddard Revisited • Eads was cited as authority by the finder (by the finder’s purchaser) in Goddard v. Winchell. • Assume you are the Judge in Goddard and that you feel bound by precedent. • You believe in stare decisis • Is it not clear that Eads says that the finder of the aerolite should win? • See Note 2: Do different fact situations in which prior possession has conferred ownership raise varying policy issues? Donald J. Weidner

Armory v. Delamirie (1722) • What is a “King’s Bench?” • What is a “Strange?” • A chimney sweeper’s boy found a jewel [it is not clear whether he found the jewel while he was working] and delivered it to the Defendant’s shop and into the hands of Defendant’s apprentice. The apprentice took out the stones and apparently told both the boy and the master that the empty socket was worth three halfpence. The boy refused to accept this amount but the apprentice only delivered back to the boy the socket without the stones. Donald J. Weidner

Armory v. Delamirie (cont’d) • What does it mean that this action is “in trover” against the master? • “Originally, an action for damages against a person who had found another’s goods and wrongfully converted them to his own use. Subsequently, the action became the remedy for any wrongful interference with or detention of the goods of another.” • In short, the Plaintiff says: you wrongfully interfered with my property • Based on the foregoing, what difficulty did the boy face bringing an action in trover? Donald J. Weidner

Armory v. Delamirie (cont’d) • What did Mr. Strange report as the “rules” of the case? • The finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover. • Stated differently: The finder had a protectable but qualified property interest in the jewels • The master (shop owner) is answerable for the servant’s (apprentice’s) behavior. • Measure of damages: value of the “jewel of the finest water” that would fit. Donald J. Weidner

Armory v. Delamirie (cont’d) • Is this a holding of “qualified ownership,” even though the term is not used? • Note the result: A person who did not own the stone got to recover its value from someone who did not take it. Donald J. Weidner

Goddard Revisited • The (purchaser from the) finder in Goddard argued that Armory v. Delamirie should control. If you represent the OLQ in Goddard, how would you distinguish Armory? • What do Eads say about Goddard? Donald J. Weidner

Bridges v. Hawkesworth (1851) • T was a traveler for a large firm with which shopkeeper S had dealings. T, who had been in S’s shop on business, picked up a small parcel lying on the floor. It contained bank notes. T asked S to hold the notes to deliver them to the TO. • Three years passed, no TO appeared, and T sued to get the notes back. • The lower court said shopkeeper S was entitled to keep them as against traveler T. Donald J. Weidner

Bridges v. Hawkesworth (cont’d) • Although the appellate court said: “There is no authority . . . in our law directly in point,” it reversed. • It found no way to take the case out of the general rule of Armory v. Delamirie, which it said was: • “The general right of the finder to any article which has been lost as against all the world except the true owner, was established in the case of Armory v. Delamirie, which has never been disputed.” Donald J. Weidner

Bridges v. Hawkesworth (cont’d) • Did Bridges read Armory too broadly? • If you are the OLQ in Bridges, how do you distinguish Armory? • Court analogized to the situation if T had found the parcel outside the shop. • Saying that, if found outside the shop, Armory would control to give T the right as against all the world except the TO • Is it not clear that the result should not differ simply because the parcel was found inside the shop? Donald J. Weidner

Bridges v. Hawkesworth (cont’d) • Who should win and why? • Notice finder T’s argument (that the OLQ did not acquire a property right): • “It was well asked on the argument, if the defendant [shopkeeper] has the right, when did it accrue to him? If at all, it must have been antecedent to the finding by the plaintiff [travelling salesman], for that finding could not give the defendant any right.” • What does Eads v. Brazelton say is required to acquire a property right by occupancy? Donald J. Weidner

Bridges v. Hawkesworth (cont’d) • Notice the court’s continuing “what ifs”, or analogies: • “If the notes had been accidentally kicked into the street, and then found by someone passing by, could it be contended that the defendant was entitled to them, from the mere fact of their having been originally dropped in his shop?” • “If the discovery had not been communicated to the defendant [shop owner], could the real owner have had any cause of action against him, because they were found in his house?” • “Certainly not,” said the court. Donald J. Weidner

Bridges v. Hawkesworth (cont’d) • What is the relevance of the following: • “The notes never were in the custody of the defendant, nor within the protection of his house before they were found, as they would have been had they been intentionally deposited there, and the defendant has come under no responsibility.” • Do you see why it might have mattered if the notes had come under the shopkeeper’s protection? • On the other hand, should the fact that they had not come under the shopkeeper’s protection be dispositive? Donald J. Weidner

Yet Another Look at Goddard • Bridges was also cited by the finder in Goddard v. Winchell. • If you were the judge in Goddard, and felt bound by precedent, is it not clear that Bridges would compel a finding for the finder? • What do Eads and Armorie and Bridges combined say a judge should do in Goddard? • Assume a new judge is anxious to follow both the letter and the spirit of precedent in order to apply the law rather than make law. Donald J. Weidner

South Staffordshire Water Co. v. Sharman (1896) • Plaintiffs, fee owners in possession, employed the defendant, plus other workers, to clean out a pool. While so employed, the defendant found two gold rings “in the mud” at the bottom of the pool. • Although OLQ demanded the rings, finder delivered them to the police, who advertised the finding but could not locate the TO. The police then returned the rings to finder. Donald J. Weidner

South Staffordshire (cont’d) • What does it mean that the plaintiffs were “owners of the fee simple in possession?” • What is an action in detinue? • Detinue is a very old cause of action. Originally, only lay to recover chattels bailed to the defendant. Thus, it was based upon the assumption of a consensual transaction. Eventually, it came to sound in tort rather than in contract. At one point, the defendant got to “wage his law.” • Relief: Plaintiff received the chattels or their value, at the option of the defendant. Donald J. Weidner

South Staffordshire (cont’d) • The Appellate Court stated: “there was no special contract.” • Is this a matter that could have been determined by the contract between the OLQ and the pool cleaner? • If the parties could have agreed either way, are we looking for a contractual provision to be applied by default, like a default setting on a computer? • A default rule to fill a gap in the contract versus a mandatory rule that must be applied no matter what the contract states • What was the Appellate Court’s starting point to reason that OLQ wins? • The OLQ in possession has a right to exclude others from the land and to direct pool cleaning as it sees fit. • Why wasn’t that the starting point in Goddard? Donald J. Weidner

South Staffordshire (cont’d) • Court below said finder won, based on • Armorie v. Delamarie (chimneysweep) and • Bridges v. Hawkesworth (traveling salesman) • Are these cases distinguishable? • Appellate Court reversed, even though it accepted the “black letter” rule urged by the finder: • “the plaintiffs [OLQ] must show that they had actual control over the locus in quo and the things in it.” Donald J. Weidner

South Staffordshire (cont’d) • Given the requirement of actual control over the place and the things in it, how could an unwitting OLQ show both control and intent to control? • Court cited an Essay on Possession: • “The possession of land carries with it in general, by our law, possession of everything which isattached to or under that land, and, in the absence of a better title elsewhere, the right to possess it also.” • i.e., possession of land carries with it the possession of everything attached to or under it unless it does not? • Were the rings “attached to or under” the land? Donald J. Weidner

South Staffordshire (cont’d) • The Essay continues: • “And it makes no difference that the possessor is not aware of the thing’s existence . . . . It . . . seems preferable to say that the legal possession rests on a real de facto possessionconstituted by the occupier’s general power and intent to exclude unauthorized interference. • That is, intent to control generally is sufficient to presume intent to control particular items, even if the particular items are unknown? Donald J. Weidner

Distinguishing Bridges • How did the South Staffordshire distinguish Bridges? • Keeper of a “public shop” “did not know [the notes] had been dropped, and did not in any sense exercise control over them.” • “The shop was open to the public and they were invited to come there.” • The notes, “being dropped in a public part of the shop, were never in the custody of the shopkeeper, or ‘within the protection of his house.’” • Bridges never used the terms “public” or “private” • Note 1: “Is it realistic to say that a shop owner does not control and intend to control the entire shop, including those portions to which the public are invited?” Donald J. Weidner

Back again to Goddard • How would Goddard v. Winchell (1892) be decided under the South Staffordshire (1896) principle: • “[W]here a person has possession of house or land, with a manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner or by a stranger, the presumption is that the possession of that thing is in the owner of the locus in quo.” • Answers the Bridges question: when did the OLQ’s property right arise. Donald J. Weidner

South Staffordshire (cont’d) • How do you identify a manifest intention to exercise control over “the things which may be upon or in” a house or land? • How do you rebut the presumption that possession is in the OLQ? • By showing that the public was let in (Bridges)? • What if only a portion of the public is invited in, such as those who purchase tickets? Donald J. Weidner

One Week Orientation Program: Substantive Class Component