Property-ME - Michael R Ertel Property Professor Di Lorenzo...

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Michael R. Ertel Property Professor Di Lorenzo Action of Replevin: when you want the property returned you must prove : 1) you have right of possession 2) someone interfered with your right 3) there was no authorization to interfere Action in Trover : A “forced sale” when you want the FMV, usually when property in unrecoverable (e.g. property destroyed). You must prove : 1) right of possession 2) interference 3) no authorization I. Acquiring Rights in Wild Animals Four requirements to acquire rights on wild animals: (1) Intention : that you intend to appropriate the animal for your individual use. e.g.’s includes: pursuit, caging, partial capture/enclosure, and mortal wounding (2) Occupancy/Possession : bring the animal within your control, you deprive the animal of it’s natural liberty (Not concrete; defined on a case to case basis) e.g.’s include: capture (so escape is impossible) or mortal wounding. [pursuit or partial capture is not enough] Two requirements of occupancy/possession: (A) certainty : (need objective evidence) (1) Intent – does pursuer intend to appropriate animal for own use? (E.g. A hunter.) (2) Identity – is the identity of the animal distinguishable? (that’s the one I shot!) (3) Likelihood of Capture – how likely is capture? Will you capture it? (B) policy : to preserve peace and order so no floods of litigation exceptions: When trade reliance relies on a custom (i.e. the whale case) (a) capture : intent and occupancy/possession (b) mortal wounding : intent (c) caging : intent and occupancy/possession (d) pursuit : intent (e) partial enclosure : may be intent (f) custom : case by case basis, may give occupancy when requirements not fulfilled (3) comply with statutory restriction : (licenses, hunting season, endangered species. etc.) C/L will recognize local customs of use, except when land is posted. 1
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Michael R. Ertel Property Professor Di Lorenzo (4) ratione sole doctrine : Owner of land has exclusive right to hunt on his land. U.S., wild animals are owned by the state in public trust, owner only has right to hunt and does not acquire rights in the animal until he takes possession of the animal.) In most areas land must be posted or the trespassing hunter may take game. General Rule: We want to promote the exploitation of Natural Resources. Loss of Rights in Wild Animals A party loses rights of possession in the animal if : 1) at any time an animal regain s it’s natural liberty , unless animus revertendi (a) animus revertendi : if an animal has a tendency to return, you don’t lose right natural liberty : (1) free from artificial restraint (2) returned to natural habitat from which it came (everyone is deemed to know natural habitat) Wild Animals v. Domestic Animals (parrot in US considered domestic) -Domestic animals are considered property of the owner, thus an owner’s rights in domestic animals is indefeasible -Rights in wild animals are defeasible (may be acquired and lost) -Domestic v. Wild depends on circumstances (custom, area, etc…) Notice -If a 3 rd party has notice that an animal is already owned by another, then they cant get rights by capturing it.
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