Property I Outline 2 - 1PROPERTY OUTLINE I. PROPERTY,...

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1 PROPERTY OUTLINE I. PROPERTY, POSSESSION Definition of Possession The detention and control of anything which may be considered property for one’s own use and enjoyment as the owner or the possessor of the property, with the right to exclude all others from using the property. There are two types of possession: 1. Actual Possession – exists where a thing is in the immediate occupancy and physical control of the party. 2. Constructive Possession – exists where the possession is not actual, but is a legal fiction based on the person’s interest in the property, where one claims the property by virtue of some title. B. Property Rights Based on Possession PIERSON V. POST - 1805, page 32. Wild animals, or ferae naturae : an ancient concept concerning who had the possession of a wild animal. The most common form of this case came about from hunting, where the hunter would pursue the animal with the intent to kill or capture, and someone else would come along and capture the animal. The problem with this area is what constitutes possession of the beast. Rule - The hunter only obtains possession of the beast at the beast’s death, capture, or mortal wounding. Dissent - The hunter obtains possession of the animal as soon as he begins (or during) the pursuit of the beast. In other words, the hunter has constructive possession of the animal before its capture. Additional issues raised in discussion of Pierson v. Post: 1. Trapping A person acquires possession through trapping the animal as long as the capture is complete before interference from a 3 rd person. Therefore, if the person has not completed the act of trapping the animal, then he does not have complete possession of it. However, if the animal has been trapped in such a way as to allow it continued opportunity to escape, then the person has still acquired possession, provided that he has taken reasonable precautions to prevent escape. Society wants the animal caught. Page 1 of 34 © 2006 Stephen Hunt, Jr. Licensed Under the Creative Commons Attribution-Non-Commercial-ShareAlike License http://creativecommons.org/licenses/by-nc-sa/2.5/
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If the captured wild animal escapes possession, then according to common law, the court would allow other persons to acquire possession, with two exceptions: a. The animal is not native to the area and is unusual. b. The wild animal is domesticated by the owner, and develops the habit of return to the owner (animus revertendi). Therefore, the animal remains in the constructive possession of the owner when they roam at large. 2. Malicious Intent A person that interferes with the intent to obstruct the other person’s attempt to rightfully capture an animal. Note that this person can compete with the other for this capture, but must have the intent to do so. He cannot simply intend to interfere with the other’s pursuit of capture solely to stop that capture. 3.
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This note was uploaded on 12/01/2009 for the course LAW 577 taught by Professor Staff during the Spring '08 term at University of Arizona- Tucson.

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Property I Outline 2 - 1PROPERTY OUTLINE I. PROPERTY,...

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