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B. Involuntary Surrender of Possession: Cases 45–66

Chapter 2: Keeping Possession and Losing Possession

a. Movable Property
Cases 45–46
Case 47
Case 47a

b. Land

i. Keeping and Losing Possession of Summer and Winter Pasturage
Cases 48–50
Case 51

ii. Keeping and Losing Possession of Other Land by Possessor in Person
Cases 52–59

iii. Keeping and Losing Possession through Others (slaves, tenants)
Cases 60–66


Cases 45–46. The distinction between lost and mislaid property is important in the common law too. “Lost property” is effectively res nullius and can therefore be taken into possession by a finder. “Mislaid property” is still in the possession of its owner.  For a definition of the terms see:

1 Am. Jur. 2d (2010) Abandoned, Lost, and Unclaimed Property
§ 12. Lost property

“Lost property” is property which the owner has involuntarily parted with through neglect, carelessness, or inadvertence—that is, property which the owner has unwittingly suffered to pass out of his or her possession, and of whose whereabouts the owner has no knowledge; or property which has passed out of the owner’s possession unintentionally and involuntarily. . . . [T]he essential test of lost property is whether the owner parted with the possession of the property intentionally, casually, or involuntarily; only in the latter contingency may it be lost property.” (footnotes omitted).

§ 14. Mislaid property
“Mislaid property” is that which is intentionally put into a certain place and later forgotten.  The place where property was found, the length of time property remained unclaimed, and the surrounding circumstances are all evidence as to whether the item was or was not dropped by inadvertence, negligence, or carelessness, which factors tend to establish that the property in question has been mislaid rather than lost.” (footnotes omitted)

Discussion Question:

  1. Plaintiff found a wallet with money on the table of a barber shop and turned it over to the owner of the shop to advertise for the wallet’s owner.  The wallet was never claimed and plaintiff sought to recover it from defendant owner.  What result?  See McAvoy v. Medina, 93 Mass. 548 (1856): Held: plaintiff did not acquire an “original right” to the property, because the wallet was not “lost.”   The court distinguished Bridges v. Hawkesworth, 21 L.J.Q.B. (1851) 75 with otherwise similar facts, except that the bundle of money in Bridges was found on the floor of a merchant’s shop, where “the facts do not warrant the supposition that [it] had been deposited there intentionally.” 

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Case 47.  Property lost by shipwreck is potentially subject to a variety of rules at common law, the law of admiralty, and by statute.  If the ownership interest is deemed to have been abandoned, then the common law of finders generally applies.  If the interest is deemed to have been retained, then the maritime law of salvage applies.  In the case of shipwrecks abandoned in territorial waters, however, the United States will assert title under the Abandoned Shipwreck Act of 1987, 43 U.S.C. §§ 2101–2106.

Discussion Question:
  1. At what point can an abandonment be deemed to have occurred?  See Columbus-America Discovery Group v. Atlantic Mut. Ins. Co. 974 F.2d (1992) 450 (Va.) (insurers’ successors in interest retained ownership of gold salvaged from an 1857 shipwreck): “In conclusion, when sunken ships or their cargo are rescued from the bottom of the ocean by those other than the owners, courts favor applying the law of salvage over the law of finds. Finds law should be applied, however, in situations where the previous owners are found to have abandoned their property. Such abandonment must be proved by clear and convincing evidence, though, such as an owner’s express declaration abandoning title”  (at 464–465 [emphasis added]).

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Case 47a. The distinction noted under Cases 45–46 between “lost” and “mislaid” property accounts for the different common law rules governing the disposition of property found on another’s land: “Generally, the title and right to possession of the finder of lost property are not affected by the ownership of the property in or on which it is found, except where the place it is found is such that the article found is in law considered [to have been] in the constructive possession of the owner of the premises and, therefore, not legally a lost article, or where the property is mislaid, or is buried or embedded in the soil.” (emphasis added)  36A CJS Finding Lost Goods § 5.

Discussion Question:
  1. The distinction between “lost” and “mislaid” property is related to the doctrine of “treasure trove,” discussed in Section “E” of Chapter 3. See Couch v. Schley 272 S.W. 2d (1954) 171, applying the doctrine of “treasure trove” to determine that possession of buried money discovered on another’s property belongs to the finder, irrespective of whether the money was “lost” or “mislaid”; reversed on appeal at Schley v. Couch 284 S.W.2d 333 (1955), holding that “treasure trove“ is not Texas law.  Since the money at issue was deemed to be “mislaid,” the owner of the property retained the possessory interest.

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Cases 48–50. The issue of whether seasonal occupation of property constitutes continuous possession could arise at common law under conditions of adverse possession.

Discussion Questions:
  1. Would an adverse possessor lose continuity of possession in a summer home that is left unoccupied during part of each year?  See Howard v. Kinto, 477 P2d 210 (1970), cited under Case 44 above.

  2. Would the intrusion of a squatter one winter break the continuity of possession?

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Case 51. This case draws a distinction between seasonal and non-seasonal occupation of property and the requisite notice that is required for effective dispossession in the two situations.  In the case of non-seasonal occupation, the ouster of a tenant (who is not a possessor at Roman law) is deemed to be constructive notice to the Roman possessor, even if the latter does not know of the ouster.

Discussion Question:
  1. At common law can an owner’s interest in non-seasonal property be lost by adverse possession consequent upon the ouster of the owner’s tenant by a third party?  The general rule is that the adverse possession in such a case runs against the leasehold interest but not against the interest of the owner or remainderman.  See, e.g., St. Vincent’s Roman Catholic Congregation v. Keystone Coal Co. 33 Pa.C.C. 340 (1905) and 51 Am. Jur. 2d Life Tenants and Remaindermen § 16 (2010).

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Cases 52–59. As will be seen in Cases 56–59, in Roman law possession that is effected by “stealth,” “force,” or the former possessor’s consent to a “request” entitles the former possessor to the remedy of an “interdict”—i.e., a judicial injunction, such as the interdict uti possidetis, which privileges forcible recovery of possession, or the interdict unde vi, which orders the current possessor to surrender the property.  At common law, possession by “stealth” would never support a claim of adverse possession because of the “open and notorious” requirement for the limitations period to begin running.  Likewise, possession by the owner’s consent, such as under a lease, would not be considered “adverse.”  Possession by force, however, might trigger the running of the limitations period.  The remedies available to the dispossessed party would include not only the in rem actions of “ejectment” or “replevin,” but also various actions under the law of torts: e.g., the torts of “forcible entry,” “forcible detainer,” “trespass,” and possibly others depending upon the facts.  Further, in all such cases the lawful possessor and putative owner would also have the equitable remedy of an injunction.  Regarding Cases 53–59, cf.

RESTATEMENT 2nd TORTS (1965):
§ 77 Defense of Possession by Force Not Threatening Death or Serious Bodily Harm
“An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to prevent or terminate another’s intrusion upon the actor’s land or chattels, if
  1. the intrusion is not privileged or the other intentionally or negligently causes the actor to believe that it is not privileged, and
  2. the actor reasonably believes that the intrusion can be prevented or terminated only by the force used, and
  3. the actor has first requested the other to desist and the other has disregarded the request, or the actor reasonably believes that a request will be useless or that substantial harm will be done before it can be made.”

6A C.J.S. (2010) Assault
§ 116 Recaption of property or re-entry on real property

“A person may lawfully use so much force as is reasonably necessary to retake his or her property which has wrongfully been taken by another, but force amounting to a breach of the peace cannot be used. The use of a deadly weapon for this purpose is not justified, except in extreme cases, as where it is necessary to prevent a felony. On the other hand, where a person has voluntarily parted with the possession of personal property, the person is not entitled to regain it by force amounting to an assault or a breach of the peace, and where property is in the possession of an officer, the owner has no right to retake possession thereof by force. The right of recaption is not restricted to the immediate time and place of the taking, and is not lost, although the property is temporarily taken out of sight, when the pursuit is immediate” (footnotes omitted).

25 Am. Jur. 2d (2010) Ejectment
§ 18 Generally; elements of ouster

“In order to maintain an action in ejectment, the plaintiff must show a right to possession of the premises in dispute and that he or she has been ousted or deprived of possession, or that possession has been wrongfully withheld by the defendant. Thus, one who is already in possession of real property cannot sue in ejectment, but must resort to another form of remedy against a party claiming an adverse interest, such as an action to quiet title.
. . .
Any acts of ownership or control over the property to the exclusion of the plaintiff, other than a mere trespass, constitute an ouster. It is not necessary that an eviction be accompanied by force in order to constitute an ouster.” (footnotes omitted)

28A C.J.S. (2011) Ejectment
§ 24 Generally

. . . 
“Where no legal title is shown in either party, the party showing prior possession in himself or herself or those through whom he or she claims will be held to have the better right.” (footnotes omitted) 

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Cases 60–66. At Roman law, lessees do not have “possession” of the property they occupy, although they may have a contractual right to the use or occupation of it.  It therefore follows that lessees cannot usucapt the property.  At common law, a lease creates a leasehold estate in which the lessee has a property interest.  One of the rights incident to that interest is the right of exclusive possession, even against the lessor or owner (unless otherwise covered by contract or regulated by statute).  As in Roman law, however, the possession of the lessee qua lessee can never give rise to a claim of adverse ownership, since the possession is by consent and therefore not adverse.  See also the Discussion Question under Case 51 of these notes.

Discussion Questions:
  1. What result at common law under the facts of Cases 51–66?  If the result is not clear, what additional facts would need to be proven in order for a result to be reached?

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Chapter 2: Introduction | A. Cases 39–44 | B. Cases 45–66


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