#17309 - Creation Of Property Rights

There are 2 basic means by which B can acquire a property right:

Independent acquisition: B acquires a new property right as a result of his own conduct

Formality rules are never relevant in these cases

Dependent acquisition: B acquires an existing property right as a result of another party

exercising a power to give B that right. As there is only one type of property right to things other than land (Ownership), it is impossible for B to acquire a new property right by means of a dependent acquisition.

Formality rules may be relevant in controlling A’s power

In the topic of creation, we are concerned with independent acquisition and the creation of new property rights. Dependent acquisition is relevant to the topic of transfer of property rights.

The core principle is that B can acquire Ownership by taking physical control of a thing. This is the familiar notion in English law of ‘finder’s keepers’. That B’s act of taking physical control gives him an independent property right is clear from Armory v Delamirie.

Armory v Delamirie (1722)- Court of Kings Bench

Facts: C, a chimney sweeper’s boy found a jewel and carried it to D (goldsmith)’s shop to find out what it was. He gave it to the hands of the apprentice who took out the stones to weigh them. After discovering its worth the master offered the boy some money but he refused it, insisting on having back the jewel again. The apprentice delivered him back the socket without the stones.

Held:

That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover.
The action well lay against the master, who gives a credit to his apprentice and is answerable for his neglect

Armory v Delamirie (1722): a right good against all but the rightful owner
Strictly speaking should be a right good against all except those who have a better title
Even if B commits a wrong by doing so, B’s act of taking physical control imposes a prima facie duty on the rest of the world not to interfere with any use B may choose to make of that thing (i.e. gives a right to exclusive possession)

It made no difference that someone other than B may have had a prior property right to the ring. To protect B and promote stability, C, along with the rest of the world, was under a prima facie duty towards B not to interfere with his use of the ring.

Once B acquires that right, his right will continue even if B ceases to have physical control of the thing. It is not dependent on continued possession (Costello v CC of Derbyshire)

Costello v Chief Constable of Derbyshire (2001)- CA

Facts: Police force seized from C a motor car which they believed was stolen and retained it since the owner was unknown. C brought action against CC for delivery up and damages for unlawful detention of the car.

Held (Lightman J): C was entitled to the return of the car and damages

“Three general propositions of law are clearly established by Webb v CC of Merseyside Police (2000):

The fact of possession of a chattel of itself gives to the possessor a possessory title and the possessor is entitled to rely on such title without reference to the circumstances in which such possession was obtained: his entitlement to do so is not prejudiced by the fact that he obtained such possession unlawfully or under an illegal transaction. His claim can only be defeated by proof of a title superior to his possessory title.
In the case of competing claims to ownership (in the case of personalty as in the case of realty), titles are relative and the issue falls to be determined by reference to the relative strengths of the two claims and the party with the better title (however frail it may be) is entitled to succeed.
The statutory power of the police conferred by section 19 of the 1984 Act to seize goods and by section 22 of the 1984 Act to retain them so long as is necessary in all the circumstances places in suspension or temporarily divests all existing rights to possession over the period of the detention, but does not otherwise affect those rights or vest in the police any permanent entitlement to retain the property in the police. The limited right of the police to retain property for the statutory purpose and their obligation thereupon to return it to the “owner” are unaffected by any perceived public policy consideration that the fruits of his criminal activities ought to be withheld from a criminal.”

“In my view, as a matter of principle and authority possession means the same thing and is entitled to the same legal protection, whether or not it has been obtained lawfully or by theft or by other unlawful means. It vests in the possessor a possessory title which is good against the world save as against anyone setting up or claiming under a better title. In the case of a theft the title is frail, and of likely limited value, but none the less remains a title to which the law affords protection.”

The result in a simple case is therefore that a dispute between two claimants as to who has the better right to possession will be resolved in favour of the person whose possession is earlier in time.

2 elements of possession:
(1) Corpus possedendi- physical control or power over the object

(2) Animus possidendi- an intention to possess

Wilson v Lombank referred to the right to possession, not factual possession. It therefore seems that possession can consist of both factual and legal possession.

A sufficient degree of physical control is necessary and this has been taken strictly by the courts:

No possession of fish in Young v Hichens because he did not have control over it
Pierson v Post- mere pursuit it not enough, need to have control over the animal to acquire possession/title

Held in The Tubantia that a contextual approach is necessary to possession. What amount to possession will depend on the thing in question.

Therefore, there are special rules for whales: as long as harpoon is in whale’s body then possession acquired
Analysis: Does this not accord more with the dissent in Pierson: that the court ought to ask a tribunal of hunters what their opinion is on possession during a pursuit?

Pierson v Post (1805)- SC of New York Facts: C was a hunter and was chasing a fox when the defendant shot and killed it, knowing that it was being chased. C brought an action against D for trespass. Issue was who had property rights to the fox. Held (Tompkins J): Pursuit alone gives no right of property in wild animals. The mere pursuit gave Post no legal right to the fox, but that he became the property of Pierson, who intercepted and killed him Actual bodily seizure is not indispensable to acquire right to, or possession of, wild beasts; but that, on the contrary, the mortal wounding of such beasts, by one not abandoning his pursuit, may, with the utmost propriety, be deemed possession of him; since thereby the pursuer manifests an unequivocal intention of appropriating the animal to his individual use, has deprived him of his natural liberty, and brought him within his certain control. So, also, encompassing and securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their natural liberty, and render escape impossible, may justly be deemed to give possession of them to those persons who, by their industry and labor, have used such means of apprehending them” Livingston J (dissent) If a beast be followed with large dogs and hounds, he shall belong to the hunter, not to the chance occupant; and in like manner, if he be killed or wounded with a lance or sword; but if chased with beagles only, then he passed to the captor, not to the first pursuer. If slain with a dart, a sling, or a bow, he fell to the hunter, if still in chase, and not to him who might afterwards find and seize him. Property in animals feroe naturoe may be acquired without bodily touch or manucaption, provided the pursuer be within reach, or have a reasonable prospect (which certainly existed here) of taking what he has thus discovered an intention of converting to his own use.
Young v Hichens (1844)- Court of Queen’s Bench Facts: C, while fishing for pilchards, had nearly encompassed the fish with a net; but D, by rowing his boat to the opening, disturbed the fish and prevented the capture. C brought a claim in trespass. Held (Lord Denman CJ): It does appear almost certain that the plaintiff would have had possession of the fish but for the act of the defendant: but it is quite certain that he had not possession I think it is impossible to say that it had, until the party had actual power over the fish. It may be that the defendant acted unjustifiably in preventing the plaintiff from obtaining such power: but that would only shew a wrongful act, for which he might be liable in a proper form of action.
Wilson v Lombank Ltd (1963)- Assizes Facts: C bought a motor car from a vendor who had no title to sell. He took it to a garage for repairs. When the repairs were done it was left on the forecourt of the garage for collection by C. A representative of D visited the garage and took the car away, thinking it belonged to them. D discovered that the car was not theirs and delivered it to the true owner. C brought an action for damages for trespass...

Pierson v Post (1805)- SC of New York

Facts: C was a hunter and was chasing a fox when the defendant shot and killed it, knowing that it was being chased. C brought an action against D for trespass. Issue was who had property rights to the fox.

Held (Tompkins J): Pursuit alone gives no right of property in wild animals.

The mere pursuit gave Post no legal right to the fox, but that he became the property of Pierson, who intercepted and killed him
Actual bodily seizure is not indispensable to acquire right to, or possession of, wild beasts; but that, on the contrary, the mortal wounding of such beasts, by one not abandoning his pursuit, may, with the utmost propriety, be deemed possession of him; since thereby the pursuer manifests an unequivocal intention of appropriating the animal to his individual use, has deprived him of his natural liberty, and brought him within his certain control.
So, also, encompassing and securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their natural liberty, and render escape impossible, may justly be deemed to give possession of them to those persons who, by their industry and labor, have used such means of apprehending them”

Livingston J (dissent)

If a beast be followed with large dogs and hounds, he shall belong to the hunter, not to the chance occupant; and in like manner, if he be killed or wounded with a lance or sword; but if chased with beagles only, then he passed to the captor, not to the first pursuer. If slain with a dart, a sling, or a bow, he fell to the hunter, if still in chase, and not to him who might afterwards find and seize him.
Property in animals feroe naturoe may be acquired without bodily touch or manucaption, provided the pursuer be within reach, or have a reasonable prospect (which certainly existed here) of taking what he has thus discovered an intention of converting to his own use.

Young v Hichens (1844)- Court of Queen’s Bench

Facts: C, while fishing for pilchards, had nearly encompassed the fish with a net; but D, by rowing his boat to the opening, disturbed the fish and prevented the capture. C brought a claim in trespass.

Held (Lord Denman CJ):

It does appear almost certain that the plaintiff would have had possession of the fish but for the act of the defendant: but it is quite certain that he had not possession
- I think it is impossible to say that it had, until the party had actual power over the fish. It may be that the defendant acted unjustifiably in preventing the plaintiff from obtaining such power: but that would only shew a wrongful act, for which he might be liable in a proper form of action.

Wilson v Lombank Ltd (1963)- Assizes

Facts: C bought a motor car from a vendor who had no title to sell. He took it to a garage for repairs. When the repairs were done it was left on the forecourt of the garage for collection by C. A representative of D visited the garage and took the car away, thinking it belonged to them. D discovered that the car was not theirs and delivered it to the true owner. C brought an action for damages for trespass...

#17309 - Creation Of Property Rights - Personal Property Law

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