PROPERTY I

By Jeff Amato
Professor Zinman

I. Wild Animals
A. Acquiring Title to Wild Animals Ferae Naturae – Animals in the wild become the property of
captor. Public Policy promoted the killing of wild animals, encouraging hunters to establish control
by killing
1. Methods of Acquiring Title
a. Actual, Physical Capture
b. Mortal Wounding and Continued pursuit
c. Trapping and securing, rendering escape impossible
1) Young v. Hitchens (escape was possible through hole in net). Law will not protect
hunters who have not produced certainty of actual possession.
2) Leisner v. waine (impossible escape of a fox found to be possession of the hunter who gave
the mortal wound.)
3) Interference by a non-competitor is inconsistent with public policy Keeble v.
Kickeringill (Defendant liable for scaring away fowl by shooting intentionally to scare them
away.)
d. Custom may change rules above Ghen v. Rich (slain whale.)
e. Ownership by virtue that you own the soil McKee v Gratz (Mussels)
f. Protection of 3rd party hunters reasonable expectations
2. New York State Law – State has the title to all wild animals, except those legally held in
private ownership. The state cannot be held liable however.
B. Natural Resources are generally treated as Wild Animals (Natural gas)
C. Lost Possession Exclusive ownership of wild animals ends when the animal regains its natural
liberty, when it escapes restraints and can provide for himself and thrive in its new environment.
Mullet v. Bradley (Sea lion escapes in the Atlantic Ocean.)
1. Exceptions
a. Animal is extremely out of place. (Elephant on Union) Defendant is on notice that the
animal has escaped.
b. Animus Revertendi, domesticated animals, considered lost property Stephens & co. v.
Albers (fox breeders fox killed after it was lost, had to be returned to owner) Public policy valuing
domesticated animals. Lost property, not wild animal. Unable to regain natural
liberty b/c domesticated. Conti v. Aspca (Chester)
D. Control of Animals – Owners are absolutely liable for the damage their animals inflict. Liability
remains until another asserts ownership.
E. Rights of Trespassers v. Owner of Land – Normally the owner of land owns everything including
wild animals. Trespassers who kill wild animals do not get title.
1. Exceptions
a. License
b. Custom
c. Free flowing water (not enclosed ponds) Douglaston Manor v. Bahrakis
d. McKee v. Gratz (Owner of land entitled to mussels but not the profits from them.)
 2. Types of Possession
A. Finders – A finder has superior rights to everyone but the true owner Bridges v. Hawkesworth.
1. Exceptions
a. Owners of property who have possession of property.
b. Trespasser – the owner of the locus prevails
c. Employees who are working for the owner of the land, the owner of the land is
entitled
d. Minerals in the ground are the owner of the land
e. Treasure trove goes to the finders because it was intentionally put there
f. Abandoned property goes to the finder
g. Public Places
1) Lost Property goes to finder
2) Mislaid Property goes to owner of locus McAvoy v. Medina (Lost pocket book in
shop)
2. Duty of Finder – If a finder asserts dominion over a lost object they become a gratuitous
bailee for the true owner
3. New York’s Finder’s Law – Goods of $20 or more, Eliminates distinction of lost and
mislaid goods and gives title to the finder after the statute of limitations has run. Exceptions
include instruments, safe deposit companies, employees. Finder must give item to police in
10 days, they will give them a receipt and hold property for three months to three years.
Thereafter the true owner loses title and finder assumes full rights. Negotiable instruments
will never go to finder.

B. Bailments – The rightful possession of goods by someone (bailee) other then the true owner (bailor.)
 Intent
 Custody
 Control
1. Contractual Bailments – All elements of bailment present.
a. Ordinary care under the circumstances
b. Strict liability for misdelivery – Liability implied by misdelivery, Bailee must show
that they did not neglect or circumstances were not in his control i.e. Theft, then the
burden is put back on the bailor to prove this was not so.
c. Damaged or lost bailed good results in the presumption of negligence
d. Standard of reasonable ordinary care, the higher the value, the higher the care,
payment for bailment also raises the level of care.
e. Mistaken Value no excuse Peet v. Roth Hotel (taking ring believed to be less valuable.)
f. Bailee accepts property as well as those items reasonably expected to be in them, but
not to the mistaken or unknown goods inside, unless by express agreement.
2. Non-Contractual Bailment – element is lacking.
a. Unconscious Bailment – Bailee must have the intent to physically control the item,
they must know the existence of the item. No contract arises, therefore there is no
presumption of negligence, liable only for ordinary negligence. Samples v. Geary
(Unnoticed fur piece inside coat does not create bailment.)
b. Involuntary Bailment – Must show some sign of dominion or no bailment arises,
held to a lesser liability, only liable for negligent misdelivery of the item. Cowen v.
Presspich (Wrong bond delivered, then lost.) i.e. lost and found.
 c. Anonymous bailment – No bailment created, bailee liable for negligence, duty of care
varies with the value.
d. Employees have only “custody” not possession of a good, therefore are liable for theft
but not for possession of contraband. State v. Schingen (delivery of kegs)
e. Other relationships such as Licensor and lessor are not bailments.
3. Hotels – Under New York Law, when a safe is provided, liability is limited, however, if it is
not then they are absolutely liable for the belongings of their guests.
4. Parking Lots
a. Licensee lots – The owner of the car keeps the keys, and never has control, only a
license to use space
b. Bailment lots – Attendant keeps the key and asserts control over the car, the garage is
held to a reasonable standard of care. Motors Insurance Co. v. American Garages (car stolen
from garage)
c. New York Statute – Allowed to limit liability to $25,000 caused by theft, fire,
explosion. Allowed to charge a higher rate for a higher liability upon request. Signs
to the contrary are invalid
d. Exculpation clauses are valid except
1) Prohibited by statute
2) Unconscionable, adhesion
3) Ambiguous language
4) Strictly read by court

C. Constructive Possession – Where there is no adverse possession, one who has title to the land,
though never possessing, may maintain an action of trespass.

D. Adverse Possession – acquiring title by possessing when the statute of limitations expires, therefore
barring recovery by original owner.
 Actual
 Exclusive
 Notorious and Open
 Continuous
 Hostile
1. Actual Possession
a. Question of fact for the jury
b. Possession in fact that would give the owner an action of ejectment.
c. The acts can be consistent with the type of land, i.e. Hunting land, build hunting
shack. Brumagim v. Bradshaw Also adverse possessors can bring actions against another
trespasser
2. Exclusive Possession – Fences, hedges, or other acts of excluding others
3. Notorious and Open – It must not be secretive, neighbors must be able to know about it
4. Continuous – Once a break occurs, the statute runs anew. Tacking is allowed as long as it is
conveyed to the next possessor with privity, it is not added on to new trespassers.
a. abandoning premises
b. intruder renders it non-exclusive
c. owner acts to eject adverse possessor
5. Hostile
 a. Mistake- is hostile
b. Knowledge of hostile possession- is hostile
c. Precatory – No intention to take title, no permission, just use the land without getting
ownership- no hostile
d. Permission – No hostile possession
6. Title – Adverse possessor gets title to land of what he has occupied after satisfying these
elements.
a. Constructive Adverse Possession – Entry onto land with deed, possession of whole
property outlined on deed – exceptions
1) Must occupy, possess part
2) Must be one lot, not separate lots
3) Must be unoccupied, true owner cannot lose title to his portion.
b. Adverse possessor enters with the rights of the owner at the time the statute begins to
run i.e. Adverse possessor enters on to life estate. If statute runs, he gets the life
estate, when the true owner dies, their life estate goes to the remainder, and the statute
must start all over again for the adverse possessors.
c. Disability – Extensions on the statute of limitations may be made for disability at the
time of entrance of the adverse possessor, or incarceration.
d. Landlord tenant – The statute only begins to run if tenant makes it clear to landlord
that they are possessing land without lease or payment of rent.
e. Tenants in common – Statute begins to run if one tenant ousts or excludes another.
7. NY Law 10 year statute
a. Usually cultivated or improved
b. Protected by substantial enclosure
c. 3 year extension for infancy, none for imprisonment or insanity

III. Remedies of Possessors

A. Relativity of Title
1. Finders have greater title then all but true owner
2. If owner is absent, finder may bring an action
3. Defense of Jus Tertii(someone has better title than you)
a. Actions for trover, replevin – jus tertii is not a valid defense Armory v. Delamirie
(chimney sweeper find jewelry and jewelry store steals the stone, action for trover allowed because
finder has greater rights then all but true owner.)
B. Possessors Rights
1. Principles – people should sue on their own unless there are prevailing considerations to the
contrary.
a. People should sue on there own unless to prevent the following;
b. Wrongdoer should not go free
c. Multiplicity of suits
d. Wrong doer should not pay twice
2. Life Estate Possessors
a. Actions to recover possession – jus tertii defense is not allowed. Plaintiff must only
show prior possession
b. Actions for damages
1) Majority View Sue on Own – Zimmerman v Shreeve (defendant cut trees down on
plaintiffs land, held; life tenant cannot sue on behalf of the remainderman) Because the life
 tenant is not responsible to the remainderman for damages that are not their
fault, the owner can bring a suit on their own. Criticism The wrongdoer may
escape liability if the remainder is unborn or cannot sue. Damages are hard to
calculate.
2) Minority View Sue B/C wrongdoer will go free – Rogers v. Atlantic Gulf &
Pacific Co.(Plaintiff recovered damages to both life estate and inheritance. The possessor
hold the amount recovered as trustee for owners. Critique limits the amount
the remainderman can recover to whatever the possessor did.
3) New York Statute Allowed to sue on behalf of the remainders interest as
long as all parties have been joined or an effort has been made to join, then the
court will appropriate damages.
3. Adverse Possessors
a. Rights/title relate back to when they first entered
b. Possessors cannot get damages to permanent property without title. Lasalle County
Carbon Coal Co. v. Sanitary district Adverse possessor did not establish title, and could only recover
for damages to the possession, not permanent damages.
c. Compelling circumstances allow recovery for permanent damages Illinois & St.
Louis Railroad v Cobb(Railroads continuing trespass allows for recovery of permanent damages)
4. Bailments
a. Rights against third parties – A bailee is entitled to full damages resulting from
wrongdoing by a third party. The third party cannot assert the jus tertii defense.
b. Liable to the bailor – if the bailee recovers, they are liable to the bailor
c. Bailor cannot recover from the third party, rather they are bound by the acts of the
agent. The Winkfield (ship is sunk and is allowed to recover for the bailment of piece of mail on the
ship at the time event though the bailor is unknown)
d. Involuntary bailments – recovery by bailor from the third party may be allowed to
prevent injustice.
C. Purchasers Rights
1. General Rule- True owner has better right then anyone. The seller can transfer no better
title then the one he has Hessen v. Iowa Auto Mutual Ins. Company (Plaintiff sought to insure a car that
was evidently stolen, cannot insure items that are not owned)
2. Exceptions
a. Statutory Estoppel UCC – True owner can only bring action against the merchant,
not the bona fide purchaser
1) ORIGINAL OWNER must convey possession to a, example, dropping off
jewelry to be fixed.
2) Merchant in the goods of that type and;
3) Purchased by a good faith bona fide purchaser
b. Equitable Estoppel
1) The owner givers the merchant apparent authority
2) Bona fide purchaser

Porter v. Wertz (O entrusts a painting to A an art dealer, for examination. A gives

the painting to B a deli employee, representing that he owns the painting sells it to
C. If C had purchased from A, a merchant, C would prevail over O. But since C
bought it from B, O prevails because 1. B is not a merchant entrusted by O 2. B is
 not an art merchant 3. The sale was not made in the ordinary course of B’s
Business because B did not deal in paintings.

c. Statutes of Limitations Adverse Possession

1) Discovery rule (NJ) – the statute does not run until discovery or by the
exercise of due diligence should have Okeeffe v. Snyder
2) Demand Rule (NY) – statute does not run until the true owner demands
return of the item and refuses. Laches defense – equitable relief to the
diligent and not the tardy, delay causing prejudice. Guggenheim v. Lubell
IV. Gifts
A. Definition – A gift is a voluntary transfer of property without any consideration. It must be
intended, delivered and accepted.
 Intent
 Delivery
 Acceptance
1. Inter vivos gift – a gift made during the donor’s life when they are not under threat of
impending death. IRREVOCABLE
2. Causa Mortis – gift in contemplation of death
a. REVOCABLE
b. Upon the recovery of the donor
c. Upon death of donee
d. Revocable at any time, i.e. can make a will
e. Testamentary substitute, without will safegaurds.
f. If a will is made before the gift, it is invalid, however, if a will is made after the causa
mortis gift, the gift is revoked unlike an inter vivos gift which cannot be revoked by a
will.
B. Intent
C. Delivery – actions short of delivery may be sufficient; Evidentiary requirement
1. Wills – are revocable by gifting before death
2. Causa Mortis – gift upon contemplation of death
3. Constructive – may be valid if evidentiary support is available
a. Symbolic delivery – delivery of another object representing the gift is valid.
b. Delivery unavailable or impracticable – type of goods, delivery to someone that you
are living with
4. Conditional – If donor made the condition they are not allowed to break it, i.e. marriage gift
will not be revoked if husband breaks promise, if wife breaks promise then the gift is
revocable.
a. Causa mortis
b. Gifts in contemplation of marriage. Actions for breach of wedding promise are not
allowed in NY. Gifts must be in sole contemplation of marriage. Actions to recover
the gifts are available.
5. Gifts of future interests – A donor may reserve a future interest in the gift, full delivery is
not necessary because the donee is only receiving an intangible title Gruen v. Gruen.
6. Delivery to third party – delivery to a third party is valid and creates a bailment
D. Acceptance – if gift is vested with intent and delivery, acceptance is implied until the gift is
repudiated, as long as it is a valid gift. The gift takes affect immediately upon delivery until
repudiation.

E. Bank Accounts
1. Residue (Payable on Death) Totten Trust
a. The depositor uses the bank account as they please during their life and if anything
remains the donee takes
2. Convenience (Power of attorney) The donee has no right to the money in the account only
has the power to administer the money, when the donor dies the donee has no rights to the
account.
3. Default (Joint and Survivor)
a. Person who makes a deposit makes an immediate gift of one half, moiety.
b. Upon the death of either, the survivor is entitled to the whole account.
c. During lifetime, they are only allowed one half.
4. Totten Trusts
5. NY Statute – specifically labeled a convenience account.