Property Class Notes 1/28/04


More on South Staffordshire and its application to Hannah


The owner of the locus in quo won in this case.  There are four different possible theories for explaining this case.


The court says that the possession of land carries with it everything attached to or under the land.  The brooch in Hannah was neither.


How does this case help us decide Hannah v. Peel?  The brooch was just lying around.  It wasn’t buried.  It wasn’t attached to anything.  It was under the roof, but that doesn’t really mean the same thing.


How about the fact that the locus in quo was private property in this case, while it was public property in Bridges?  Was Peel’s place private property at the time?  Does it make a difference that it was taken by the government for the war?  It was being used as a hospital.  Isn’t that the same as a shop in a sense?  An argument can be made that a hospital is a least as public as a shop, depending on where in the hospital you are.  We don’t know what part of the building the brooch was found in.


Really, there’s a spectrum between public and private.  Private homes are very private, while the public library is very public.  Then you have shops and other businesses that are open to people who have business there.  So if this is the holding of South Staffordshire, we’re not sure how it applies.


What about the “limited purpose” explanation?  Sharman was invited to clean the pool and not to find things.  Hannah’s purpose was to be a lance-corporal.  The thing is that Sharman lost, while Hannah won.  If this had been a limited purpose case, Hannah arguably could have lost.


The problem with this opinion is that it throws out lots of cases and holdings, but the court doesn’t say why they’re relevant.


How important is the plaintiff’s “good behavior” in turning over the brooch to the authorities?  The court doesn’t say explicitly.


So we have a good brief, but then it peters out.  It creates a lot of possibilities but doesn’t resolve them into a particular holding of the case.  So don’t be like this judge!


What does the court do?  Look at the last paragraph of the opinion.  Was the brooch really lost?  What is “lost property”?  If someone is unintentionally dispossessed of something, it is lost.  If someone intentionally leaves something somewhere and then they forget about it, then it’s mislaid.


How did the brooch get where it ended up?  Was it lost or mislaid?  How could you lose something “up high”?  Mislaid property goes to the owner of the locus in quo, while lost property goes to the finder.


What assumptions does the court make that aren’t supported by the facts?


Even though Peel doesn’t own property, he may still have the power to sell it if he’s not a thief.  The shop to which Peel sold the brooch acquires good title to the brooch.  Peel’s title was voidable.  If he still had the brooch, Hannah could have gotten it back.  But a voidable title allows you to convey good title to a good-faith purchaser for value.  On the other hand, a void title is the kind a thief has.  If you buy from a thief, even in good faith, you don’t acquire good title.


If Hannah is entitled to the brooch, then he is entitled to its full value.  But what is the full value of the brooch?  Is it the value that Peel sold it for, or is it the value that the shop resold it for?  Should Hannah get the higher amount or the lower amount?  If Peel made a bad deal, Hannah would be entitled to the full price rather than the “bad deal” price.


What if Peel had lived in the house?  Would that have made a difference?  Peel would be more likely to win in that case.  If Peel had lived in this private place, it looks like we would give the property to him and say he was the possessor of the property.


What reasonable expectations are protecting?  If Peel has guests over to his house, he expects that people won’t take stuff from his house even if he doesn’t know it’s there.  The law encourages a great expectation of privacy at home.


What if Hannah had been a trespasser?  Well, we don’t want to reward a thief.  But then what do we do with “first in time, first in right”?  How do we resolve the conflict?  We could have a special rule for trespassers, but that’s not how it’s done.  Instead, we use the constructive possession doctrine.


Constructive possession


Constructive possession is an exception to the factual element of possession. Constructive possession is a way to say that we’ll pretend there is possession even though there really isn’t.  But why do we pretend?  There needs to be a rationale, or it just seems nutty.  “Constructive” means it’s a legal fiction.  We’ll treat you like you’re in possession every though you’re not.  We want to do that because we want to apply the rule of “first in time, first in right”.  So we give Peel constructive possession against trespassers because we want to protect public order.


When we say somebody is in constructive possession, we’ll pretend that they have possession because we want a certain outcome to follow.  Whether you’re in possession or not depends a lot on what objective the law is trying to achieve.  Take, for example, possession of narcotics.  That type of possession will be defined much more broadly than we define possession of lost property.  We use the law as an instrumentality, bending a set of rules to a particular purpose.


When you learn the law, you must accept that you can’t rely just on doctrine and definitions.  You can’t just look up “possession” in Black’s and know what it means.  Look at Constitutional Law.  You have a little tiny document that you can carry around in your pocket, but then you have a huge casebook you need to figure out what it means.  So you can’t interpret the Constitution just by looking up the words it contains.


The law as stated can never be a complete explanation.  You must ask the question: “What is the purpose of the law?  Are we applying this law in a way that defeats its purpose?  If so, we need to change the definitions to meet our goal.”  Judges don’t like to change too much law at once because they are afraid of unintended consequences.


If a definition runs into problems with an important policy objective, we’ll dispense with it.


Lost property typically goes to the finder.  Mislaid property typically goes to the locus in quo (the true owner may retrace their steps).  But it’s tough to distinguish between lost and mislaid property!  Say you’re in a barber shop and you see an envelope with lots of money sticking out.  If the money was mislaid, it goes to the barber.  If it’s lost, it goes to you, the customer.  So what do we do?  The money is sitting on a table.  So the thing you do if you want the money is kick it to the ground.  Then you’re within Bridges.


What’s the point of this?  When you frame these rules, you want to do it in a way such that you don’t give people the incentive to lie or be manipulative.  So Braunstein says the “lost/mislaid” distinction is problematic for two reasons: (1) It requires us to infer the intent of someone who is always absent: the true owner.  If the true owner showed up, they would win out over both the finder and the owner of the locus in quo.  (2) The distinction tends to encourage finders to manipulate the circumstances to make the property look lost and not mislaid.


Abandoned property also goes to the finder.  Treasure trove is an ancient concept that started with (maybe?) Henry VIII.  He made monasteries subject to tax.  The monks went and hid their assets by burying them.  They had the intention to return to claim the stuff.  This still happens every once in a while.  In England, when treasure is found it goes to the Crown, because the point was keeping it from the crown.  But in the U.S., treasure trove goes to the finder.  But we don’t want to encourage trespass.  Trespass is inconsistent with the notion of private property.  Whenever we see trespass, we’ll manipulate the rule so that the trespasser doesn’t win.


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