Chapter 2: Subsequent Possession: Acquisition of Property by Find, Adverse Possession, and Gift

Mutti owned a vintage Mercedes Benz automobile worth $200,000, which she kept in her garage, heavily insured. She wrote to her son, Seymour, on his 21st birthday: "Seymour, I would like to give you the Mercedes for your birthday. I will keep it here for now because it requires safekeeping and I may want to drive it a few more times, but as soon as you have the capacity to take care of it properly, it will be yours." Several months later, Mutti died with the Mercedes still in the garage. Her estate will be divided equally among her five children, but Seymour claims that the Mercedes should not be included in the estate because Mutti had already given it to him. Which of the following is true? (A) Mutti did not give Seymour a valid gift, due to lack of donative intent and delivery. (B) Mutti gave Seymour a valid gift inter vivos if the court accepts constructive delivery. (C) Mutti gave Seymour a valid gift causa mortis. (D) Mutti did not give Seymour a valid gift, due to lack of acceptance.

(A) Mutti did not give Seymour a valid gift, due to lack of donative intent and delivery. Rationale: The correct answer is A. The gift will likely fail due to lack of donative intent (to make a present transfer of an interest) and delivery (at most, symbolic, which won't fly in this context). C cannot be correct because this was an attempt to give a gift inter vivos, rather than causa mortis, which is a gift in contemplation of death. Even though Mutti did in fact die, she did not give the gift because she was dying. A gift inter vivos requires donative intent, delivery, and acceptance. Acceptance is presumed for valuable gifts (although this may be rebutted). Here is there is no evidence of lack of acceptance, so D is not a good choice. There is also a big issue with donative intent. There must be an intent to make a present transfer of an interest in the property, even if possession is postponed. See, e.g., Gruen v. Gruen, 496 N.E.2d 869 (N.Y. 1986) where the gift of a painting was declared valid, even though possession was postponed until the donor died. In Gruen, however, the donor clearly specified he was making a gift presently (i.e., "I hereby gift you the painting") versus the situation here, where there is merely an intent to make the gift in the future ("it will be yours"). Delivery is also suspect: there is no manual or constructive delivery. Manual would require the car to be actually sent to Seymour. Constructive would give Seymour control over the car (e.g., the keys and the title). The letter is only symbolic delivery at most, which many courts do not accept especially when other types (manual, constructive) are possible. So, if answer B said "if the courts accept symbolic delivery," it would be a possible answer, but there is no argument here for constructive delivery. Recommended Reading: Pages 161-164 of Dukeminier, Property, Concise Edition 2E

Omar collects stamps. A decade or so ago he purchased a set of stamps for $150,000. Last year Omar donated a dresser to charity. Pete bought the dresser for $30. Pete found the stamps in the dresser and advertised them for sale in a nationally circulated stamp catalog. Omar saw the ad and demanded the stamps be returned to him. Pete refused. Omar sued. Pete defended by arguing, "Finders keepers, losers weepers." A. Is Omar's action one for replevin or one for trover? B. As a judge, how would you rule on Pete's "finders keepers, losers weepers" argument? *PROFESSOR ENDORSED*

A. Omar brought an action for replevin to obtain possession of personal property wrongfully detained by another. B. Under the holding of Armory v. Delamirie, Pete had greater ownership rights against the whole world except the true owner. Here Omar is the true owner. He wins and Pete loses. The sale or contribution of the dresser to the charity was not a gift of the stamps inside. Finders keepers, losers weepers is not the law. See Gantor v. Kapiloff, 516 A.2d 611, 613-614 (Md. App. 1986).

In Year 1 Charles buried $25,000 in coins and paper money in tin cans and glass jars in his backyard. It was commonly known that Charles did not trust banks and hid money on his property. Charles died in Year 12. All his property passed to his son Ozzie. Ozzie sold the land to David in Year 20. Later David hired Ellison to re-landscape the backyard. In re-landscaping Ellison found the tin cans and glass jars containing the $25,000. A. Ozzie, David, and Ellison all claim the $25,000. Who prevails? B. Was the money lost, mislaid, abandoned, or treasure trove? C. Assume Ozzie cannot be found. Who gets the cash: David or Ellison? *PROFESSOR ENDORSED*

A. Ozzie gets the money. He inherited all of George's property, including the money and the land. He is the rightful owner of the money and prevails over David, the current landowner, and Ellison, the finder. David's main argument is that by selling him the land, Ozzie included everything buried on the property. The money and land, however, are separate assets. The sale of one is not the sale of the other. See Ritz v. Selma United Methodist Church, 467 N.W.2d 266, 269 (Iowa 1991). David loses. Any right Ellison might have is subject to the rights of Ozzie, the rightful owner. B. The money was not lost. The money could be mislaid. The fact that the money is in cans and jars is some indication Charles intentionally placed the money in the ground. The value of the money and the manner of its burial indicates it was not abandoned. It might be treasure trove, but it lacks the antiquity characteristic of treasure trove. The characterization that fits best is that the money was mislaid—intentionally placed in the ground and the whereabouts forgotten, or at least not told to Ozzie. C. This Example is based loosely on Corliss v. Wenner, 34 P.3d 1100 (Idaho App. 2001). Ellison must argue that the money was lost, abandoned, or treasure trove since David as owner of the premises wins if the money was mislaid. As discussed in (b), the money was mislaid. Mislaid property goes to the owner of the land. Hence David, the landowner, gets the cash. David, moreover, could persuade a court that Ellison was on David's land for a limited purpose that did not include finding and claiming the money. Anything Ellison found in or on David's land belongs to David. Finally, David could argue the money was embedded in the soil and not on the surface. Embedded objects belong to the owner of the soil rather than to the finder. David gets the money if Ozzie is not located.

Central Bank repossessed an airplane when the owner defaulted on a loan. Four months later Central Bank took the plane to Lindner Aviation for its annual inspection. Lindner Aviation conducted its business in a hanger leased from the City Airport. Benjamin, an employee of Lindner Aviation, inspected the plane. As part of the inspection Benjamin removed panels from the wings. Although these panels are supposed to be removed annually at the inspection, a few screws were rusted into place. Benjamin used a drill to remove the rusted screws and panels. Inside the left wing, Benjamin discovered two packets of $20 bills with mint dates of 40 years ago. The bills totaled $80,000. A. As between Benjamin and Lindner Aviation, who gets the $80,000? B. As between the prevailing party in (a) and City Airport, who gets the money? C. As between the prevailing party in (b) and Central Bank, who gets the money? D. As between the prevailing party in (c) and the previous owner of the airplane (who defaulted on the loan to Central Bank), who gets the money? *PROFESSOR ENDORSED*

A. The Example is based on Benjamin v. Lindner Aviation, Inc., 534 N.W.2d 400 (Iowa 1995). Benjamin is the finder, but as he is also an employee in a place solely because of his employment, a court likely would award the money to his employer, Lindner Aviation. If a court finds that the true owner may return, it may award the money to Lindner Aviation as being the easiest for the true owner to locate. On the other hand, giving the money to Benjamin rewards honesty and encourages people to publicize their finds. Despite this instrumental view, most courts would characterize the find as one by an employee and award the money to Lindner Aviation. B. As between Lindner Aviation and City Airport, Lindner Aviation prevails. Although City Airport owned the land and hanger, Lindner Aviation had legal possession. While courts often speak in terms of the owner of the locus in quo, the legal possessor—the tenant in this case—keeps the money. C. As between Lindner Aviation and Central Bank, the issue is whether the packets of money were "lost" or "mislaid." The packets are not antiquated enough to be treasure trove. While debatable, the money can't be deemed abandoned. The very circumstance of its being $20 bills placed in packets that ended up inside the wing of an airplane suggests that someone intentionally placed the money there. Therefore, the money was mislaid and not lost. Mislaid property belongs to the owner of the place where the money was found. The money was found in an airplane owned by the Central Bank, even though the plane was in a hanger under Lindner Aviation's control. Central Bank wins. D. As between Central Bank and the owner of the plane before Central Bank foreclosed, Central Bank as current owner of the plane prevails. The only chance the previous owner has is to show he was the true owner of the money. Merely owning the plane at one time avails him nothing unless there is evidence he owned the money before it was placed in the wing.

In the midst of a massive housecleaning project, Martha put an old chest of drawers near the curb so that the waste removal company could pick it up. George passed by in his pickup truck and saw the chest, which he thought he could refinish and make it look like new. After he got the chest home and started refinishing it, he found out it was a piece of Chippendale furniture, worth about $10,000. He displayed the piece on an antiques TV show and Martha saw that the chest was hers. Martha now sues George for replevin. What result is most likely? (A) Even though George was the first finder, Martha will win if she can prove that she is the true owner of the chest. (B) George will win, because the chest was abandoned by Martha. (C) Martha will win but will receive only the value of the chest in its original condition. (D) George will win, because the chest was mislaid or treasure trove.

(B) George will win, because the chest was abandoned by Martha. Rationale: The correct answer is B. The property in this case was not lost or mislaid but rather abandoned because Martha exhibited an intent to relinquish her possession over the chest by putting it out for trash pickup. In the case of lost or mislaid property, the true owner always retains the superior right of ownership and the finder's ownership is therefore conditional on the true owner not reclaiming it. With abandoned property, however, the true owner has relinquished her claim to the property so that the first possessor's ownership is no longer relative but absolute. Thus, answers A and C are incorrect. Answer D is incorrect because the property is clearly not treasure trove, which involves buried treasure, such as coins or jewels. Recommended Reading: Pages 121-131 of Dukeminier, Property, Concise Edition 2E

Alberto owned Blackacre which was adjacent to Whiteacre, owned by Berta. In 1998, Alberto built his garage without doing a survey and, as a result, part of new garage extended about two feet over the property line onto Whiteacre. In 2005, Alberto died. His will gave Blackacre to his daughter Cara. She moved in and then in 2007 decided to sell Blackacre to Darrell, who promptly moved in. In 2012, Berta was trying to sell Whiteacre to a potential buyer, who discovered that the garage was over the line. In 2012, Berta sued Darrell to require him to move the garage or pay damages. Darrell claims title by adverse possession, which requires ten years of possession in this jurisdiction. Which of the following is true? (A) Darrell cannot meet the statutory period of possession, because he can tack on the possession of Cara but not Alberto. (B) Darrell cannot tack on the possession of either Cara or Alberto to meet the statutory requirement. (C) Darrell should be able to meet the adverse possession requirement by using the possession of Cara and Alberto in addition to his own. (D) Darrell cannot claim adverse possession in any case, because he does not meet the adversity requirement in any jurisdiction.

(C) Darrell should be able to meet the adverse possession requirement by using the possession of Cara and Alberto in addition to his own. Rationale: The correct answer is C. Darrell has been in possession for only five years, so to meet the ten-year statutory period, Darrell will need to tack on the possession of both Alberto and Cara. An adverse possessor can "tack" the possession of previous possessors if they are in privity, which just means that there is some reasonable connection between them that makes it fair to give the current possessor credit for the previous possession. Usually, someone who inherits or is devised property in a will, like Cara, has that connection and so does a good faith purchaser of the property, like Darrell. Thus, answers A and B are incorrect. Tacking would not be allowed only where there is no connection between one possessor and another. So, there does not seem to be any reason a court would deny Darrell the right to tack on those previous periods of possession. D is incorrect because Darrell does not have permission to encroach on Berta's property; therefore, he is adverse. In some jurisdictions, the fact that Darrell did not know he was encroaching might destroy his adversity, but most jurisdictions would deem possession without permission to be adverse. Recommended Reading: Pages 145-150 of Dukeminier, Property, Concise Edition 2E

In 1980, Jackson became the owner of Greenacre, a large, undeveloped, wooded tract of about 120 acres in a rural area. Jackson lived about 300 miles away and he visited the property only a few times a year to hunt and repair the fence surrounding the land. In 2000, Pearson lost his home to foreclosure, so he began camping near the middle of Greenacre. He cleared away about a half-acre of brush and trees for his campsite in a ravine surrounded by large bushes. In addition to a large tent, his campsite included an outhouse, a fire pit, a picnic table, and a little storage shed. During a few weeks of the coldest part of each winter, Pearson retreated to a nearby homeless shelter. Jackson did not notice Pearson's site during his periodic visits because he tended to hunt an area near the edge of the tract and often came during Pearson's annual visit to the shelter. In 2017, however, firefighters responding to a small fire near the campsite discovered it and reported it to Jackson. He now wants to evict Pearson. Pearson defends on the basis of adverse possession. The jurisdiction has a ten-year statute of limitations and does not require good faith. Which of the following will be the hardest element for Pearson to meet? (A) Actual possession (B) Continuous possession (C) Open and notorious possession (D) Adversity or hostility

(C) Open and notorious possession Rationale: The correct answer is C. Open and notorious possession presents the biggest hurdle. It does not require Jackson to actually KNOW about Pearson's possession, but the fact that it was in a ravine surrounded by bushes would have made it difficult for Jackson to discover. Notorious suggests that the possession is generally known by others, but that is not the case here. Open and notorious suggests conspicuous occupation, whereas this is more hidden or obscure. With regard to A, Pearson's possession is probably sufficient to meet most jurisdictions' requirements for actual possession. He has built a couple of structures and improved the land by clearing it. Unlike the possessors in Van Valkenburgh, whose cultivation of the lot moved about, Pearson stayed in one place for the entire statutory period. Certainly if the jurisdiction had more specific requirements for possession, such as enclosure or cultivation, then Pearson's case would be weakened. Answer B looks possible because Pearson did leave the site every year for several weeks. However, he was still "in possession" because his tent and assorted improvements were still there. Remember the purpose of this requirement is to put the true owner on notice, and the evidence of Pearson's occupation was still there, even when he wasn't. Answer D is incorrect because Pearson did not have permission. If the jurisdiction required good faith, Pearson would have no case, but it doesn't. Recommended Reading: Pages 133-134 of Dukeminier, Property, Concise Edition 2E

Pip found a jewel on the street. He put it in his pocket and decided to take it to show his friend, Miss Havisham. On the way into her house, however, the jewel fell out of Pip's pocket onto the lawn. Some days later, Miss Havisham's niece Estella found it. Pip, Estella, and Miss Havisham are now in litigation over who should get the jewel. Which of the following is true? (A) Estella should get to keep the jewel as the most recent finder. (B) Because the jewel was mislaid by Pip, Miss Havisham should get the jewel as the owner of the locus in quo (i.e., the land where it was found). (C) Pip should get to keep the jewel as the first finder. (D) The jewel should be sold, and all three parties should split the proceeds.

(C) Pip should get to keep the jewel as the first finder. Rationale: The correct answer is C. The finder of lost property has relative title—good against all the world except the true owner or a previous possessor. Here, Pip was the first finder and thereby acquired this relative title. When Estella found the property, her title was good against all but the true owner or a previous possessor, which was Pip. Therefore, Pip wins against Estella, making A incorrect. Answer B is not correct: The jewel was lost, not mislaid, because Pip did not purposely place it on the lawn. In any case, Miss Havisham's claim would also not be good against Pip, the previous possessor. Answer D might have some equitable appeal, but courts do not usually split lost property between claimants especially where there is clear evidence of first possession. Recommended Reading: Pages 121-131 of Dukeminier, Property, Concise Edition 2E

In 1879, famed French artist Pierre-Auguste Renoir painted an oil landscape on a linen dinner napkin. The painting, entitled "Paysage Bords de Seine," was purchased by Herbert May from a dealer in Paris. In 1935, his wife gifted the painting to the Baltimore Museum of Art. Sometime in 2013, the painting was stolen, and its whereabouts remained unknown until 2018, when a Virginia woman, Martha Fuqua, contacted an auction house to arrange for the painting to be sold. Fuqua claimed to have purchased the painting at a flea market for $10 in 2014. Prior to the scheduled date of the auction, the Museum identified records relating to its prior ownership of the painting, and brought suit to quiet title; Fuqua has no evidence regarding her 2014 purchase other than her own testimony. The relevant statute of limitations for defending against adverse possession claims over personal property is seven (7) years. Which party has a superior claim to the painting? (A) Fuqua, because she was a good faith purchaser for value. (B) Fuqua, because the statutory period has expired, and the Museum cannot overcome her adverse possession claim. (C) The Museum, because the painting was stolen, and good title can never originate in a theft. (D) The Museum, because it retained records relating to its prior ownership of the painting.

(C) The Museum, because the painting was stolen, and good title can never originate in a theft. Rationale: The correct answer is (C). The painting was stolen, and good title cannot originate in theft. See O'Keefe v. Snyder, 83 N.J. 478 (1980) ("[G]enerally speaking, if the paintings were stolen, the thief acquired no title and could not transfer good title to others regardless of their good faith and ignorance of the theft."). (A) is incorrect because, while the UCC protects a good faith purchaser for value in certain circumstances, Fuqua did not purchase the painting for its value. While she may allege that she bought in good faith, she concedes that she only paid $10 for the artwork, a discount rate which diminishes her claim for the windfall value of the rare painting. (B) is incorrect because the statutory period has not expired; Fuqua has only claimed to have had possession of the painting for five years, falling short of the six-year bar to defending against such claims. (D) is incorrect, because the records retained by the Museum are not dispositive on the question of adverse possession. Recommended Reading: Pages 132-161 of Dukeminier, Property, Concise Edition 2E

While helping Keisha clean up after a party at her house, Franklin finds a lottery ticket. The ticket turns out to be a winner worth $1 million. The true owner cannot be found, so it looks like Franklin will get the money. Keisha, however, claims the ticket on the basis that it was found on her property. Which of the following would help Keisha's case the least? (A) She hired Franklin to help her clean up. (B) The ticket was found on the counter of her bathroom, so it appears to be mislaid. (C) The ticket was found in the driveway where a lot of cars were coming and going. (D) Keisha had seen the ticket earlier and moved it from the floor to a chair but then was distracted by other tasks.

(C) The ticket was found in the driveway where a lot of cars were coming and going. Rationale: The correct answer is C. Lost property goes to the first person to possess it, so the question is whether, as the landowner, Keisha had constructive possession of the ticket before Franklin found it. The more private a place is, the more control Keisha has and is more likely to be deemed in constructive possession, whereas in a more public place, the owner has less control and less constructive possession. So, if the ticket was found in the driveway, a fairly public location that Keisha had little control over, it is less likely that she could argue constructive possession. Answer D indicates more control by Keisha over the item, increasing her constructive possession claim. Answer A will help Keisha, because if she hired Franklin, he would be likely deemed to be her agent and therefore anything he found in the course of his employment would be hers. In Answer B, the ticket is mislaid, rather than lost, which usually favors the owner of the locus (Keisha). C is the only fact that weighs against Keisha's claim. Recommended Reading: Pages 161-164 of Dukeminier, Property, Concise Edition 2E

In 2000, Olive owned Blackacre, a modest house on a small lot. In 2005, she properly deeded the property to Andy in exchange for his forgiveness of a loan she couldn't pay back. He agreed to allow her to continue living on Blackacre until she died. In 2006, Andy began serving a prison sentence. In 2007, Olive died. Olive's will specified that all of her property should go to her daughter Bianca. Bianca began living on Blackacre immediately. In 2015, Bianca took a job in a distant city, but she returned to the Blackacre house occasionally to keep it maintained and to visit friends. No one knew about the prior transfer to Andy except Andy himself. When Andy was released from prison in 2017, he brought an action to evict Bianca from Blackacre. In this jurisdiction, the statute of limitations for an action to recover possession of property is seven years. If Bianca tries to establish adverse possession, which of the following requirements will be most likely to undermine her case? (A) If the jurisdiction requires continuous possession for the statutory period (B) If the jurisdiction requires open and notorious possession (C) If the jurisdiction requires good faith (D) If the jurisdiction has a disability statute

(D) If the jurisdiction has a disability statute Rationale: The correct answer is D. In some jurisdictions, if the owner is under a disability at the time adverse possession begins, the statute does not begin to run until the disability is removed (or in some jurisdictions, the owner gets some shorter period to act after the disability is removed). If incarceration is defined as a disability under the jurisdiction's statute, Bianca will surely lose her case. In this case, Andy took action to evict immediately after his disability was removed. Answer A is incorrect because Andy was the actual owner of Blackacre in 2005, and, in 2007, when Olive died, Bianca began adversely possessing the property because she did not have Andy's permission and she did not have title. The will was not effective to give her title because any interest Olive may have retained in Blackacre ended at her death. Bianca's possession was continuous for the statutory period of seven years (from 2007-2014). When Bianca took the job in another city, she already had fulfilled the statutory period and, in any event, her absence for long periods may not matter if she maintained possession of the house. Answer B is also incorrect because Bianca's possession was clearly open and notorious, even though Andy didn't know about it. This requirement means only that someone would see evidence of her possession if he or she looked. It puts the owner on notice; it doesn't require that the owner actually know about the possession. Answer C is incorrect because Bianca did in fact possess in good faith; she truly thought the property was hers pursuant to Olive's will. Recommended Reading: Pages 150-151 of Dukeminier, Property, Concise Edition 2E

Opal owned a racehorse. Abel acquired the title certificate to the horse from the jockey club. Abel, noticing Opal's name on the title certificate to the jockey club had been forged, transferred the title certificate to the racehorse to Ben in full payment of a debt Abel owed Ben. Ben, thinking the title certificate was legal, sold the horse and endorsed the title certificate to Cory, another trainer. Under Cory's training, the horse won several races. Opal, watching one of these races, recognized the horse as her horse. What advice would you give Opal?

Opal may seek the return of the horse by replevin. The forged certificate conveys no title. Alternatively, Opal may elect to sue any one of the successive convertors of her property—Abel, Ben, or Cory—in trover for money damages, probably making this election depending on the value of the horse at the time of each conversion. While Opal may obtain a judgment against each separately, only one of these judgments may be satisfied. Otherwise Opal would wind up overcompensated. So once one of them is satisfied, she cannot sue the others on the theory of the forced sale: Opal will then have exchanged the title to the horse for whatever one of the possible defendants pays. See Baram v. Farugia, 606 F.2d 42 (3d Cir. 1979). Presumably a winning horse is worth more, so the suit should be against Cory. Assume Opal sues Cory in trover and obtains a judgment against him, but Cory is judgment proof and offers to give the title certificate back to Opal. May Opal refuse the certificate and sue Abel? Yes. Opal is not required to accept the horse back. If Opal elects not to take the horse back, the theory of her case against Abel will be based on conversion of Opal's right to the horse. The measure of damages for this conversion is the value of the horse when Cory converted Opal's right to it? Some cases would also permit Opal to recover lost profits, but the traditional measure of damages is the value of the horse when the conversion took place.

Olivia's 2005 Suburu was stolen one day while parked on the street in front of her house. Six months later, Arnold purchased from Dealer a used 2005 Suburu to which Dealer appeared to have good title. Arnold paid the full fair market value for the car. In fact, the car was the one which had been stolen from Olivia, though there was no way Arnold could reasonably have known that the car was stolen property. Through a random check of Vehicle Identification Numbers by local police, the police discovered that the car being driven by Arnold was stolen property, and so notified Olivia. Olivia has now sued Arnold in 2009 for return of the car. Arnold defends on the grounds that he is a bona fide purchaser for fair value. Assume that there are no relevant statutes. May Olivia recover the car? *PROFESSOR ENDORSED*

Yes. As a general rule, a seller cannot convey better title than that which he holds . This is true of the unknown thief. Therefore, Dealer never got good title (regardless of whether he thought he did), and could not in turn give good title to Arnold. Consequently, even though Arnold paid full value and was completely innocent, he will lose the car. (Statutes in most states set up a certificate of title program, which would have protected Arnold in this situation.)

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.

b. Garcia, because his possession is what the true owner would have intended. Rationale for Correct Answer The most basic point to remember about the mislaid property doctrine is that it favors the landowner over the finder. In a state that applies the lost/mislaid distinction, if the court determines that the chattel is mislaid, it awards the property to the landowner. 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. This question, however, does not require that you make this judgment call. It stipulates that the purse is mislaid. Thus the purse will go to Garcia, so we can strike Choices A, C, and E. 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. This theory of possession is the basis of the public/private place distinction but is not part of the thinking behind the mislaid property doctrine. Instead, 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.

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. *PROFESSOR ENDORSED*

c. Both of the above are correct. Rationale for Correct Answer A student might select Choice E based on a casual reading of Armory v. Delamirie. 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. Thus, Owen should prevail in his suit against Danny, and to pick among Choices A, B, and C, we need to consider remedies. 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 C is the best answer.

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. *PROFESSOR ENDORSED*

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. Rationale for Correct Answer In some cases when a party claims that goods were abandoned, the length of time the true owner has been out of possession may be an important consideration. Here Choice D is quite different from the other choices. Isaiah lost his wedding ring 40 years ago, and the other three "losers" lost possession no more than 6 years ago. If this was all you had to go on, D would be the best choice. But there's more to consider. 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. What else, realistically, could she do? Inaction in this context does not manifest the intent to relinquish ownership. Consider Tommy's situation in B. If the question were "In which situation is a finding of abandonment least likely?" we should pick B. 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.

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).

d. The hospital, because the service elevator is not normally used by visitors. Rationale for Correct Answer This is a tough question when we get down to the two "better" answers. Let's eliminate the weaker choices first. Choice A is improbable. There are a few American cases that expand treasure trove to include currency when its nature and location satisfies the other elements of the treasure trove doctrine. Here there is no evidence that the bills are old; they clearly have not been on the elevator floor very long; and no one would intentionally place the bills there for safekeeping. Likewise, Choice C is weak. The bills are not likely to be classified as mislaid property. Almost certainly someone who had been taking the service elevator accidentally dropped the two bills, perhaps from a pocket or an open bag or purse. Who would have intentionally laid them on the elevator floor, even for a short time period? The nurse aide's employment status, referred to in Choice E, will not help the hospital. If the aide were the finder, the hospital could argue that she found the bills on the hospital's behalf, but Rocky found them. Choice F also is improbable. When they were first printed, the bills were United States Treasury property but obviously they were placed in circulation. Nor does the government have a claim to lost money by escheat. Our two final contenders are B and D, which both revolve around the public/private place distinction. Rocky will claim that the hospital is generally open to the public and that he found the bills in a public place. The hospital may concede that many areas of the hospital are open to the public, but it will argue that the service elevators are generally not open for use by a visitor such as Rocky. Rocky will respond that the nurse's aide gave him permission to use the elevator, and that he reasonably believed that she had the authority to extend permission. The issue is close, but the hospital has the better argument, so D is preferable. Even if the aide had actual or apparent authority to let Rocky ride the elevator once, she did not (and presumably could not) make the service elevator generally available for use by all hospital visitors.

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. a. 3-4-1-5-2. b. 4-3-1-2-5. c. 4-1-3-5-2. d. 1-4-3-2-5. e. 4-1-3-2-5.

e. 4-1-3-2-5. Rationale for Correct Answer Let's examine each of the five scenarios in order. (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. Under these facts, cutting against that claim, at least slightly, is the fact that the finding takes place during a party with a very large invitation list. The homeowner, however, has not opened her house to the public. (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. Some students will rank the apartment tenant's claim below that of the homeowner (number 1), but that case is weaker due to the size of the birthday party. It should make no difference that the chattel is found in an apartment rather than a single-family home (both are private residences). Likewise, it should not matter that here the "owner" of the locus in quo (the apartment) is a tenant, rather than a fee simple owner (presumably the case for the home in number 1). (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. Putting this all together, the ranking is 4-1-3-2-5. So my answer is E. The closest call, in my opinion, is between (1) and (3). Some clothing stores have attendants, with customers only allowed to use a specific fitting room as directed by an attendant. That procedure certainly would reflect more control than a homeowner usually exercises when allowing a guest at a large party to use the hall bathroom. But I'm convinced that there's something special about a home as a place of finding that will steer most courts to prefer the homeowner over a guest finder.