Eads v. Brazelton (p.109)

November 1827--the steam boat America sank in the Mississippi River. The owners of its cargo of valuable lead "wholly abandoned" the property. (p. 109)

January 1855--Plaintiff Brazelton "arrived at the vicinity of the wreck" and fastened a buoy to mark the spot "with the expectation" of returning to salvage the cargo the next day. But "he was detained by other business." [Side Bar: 1L:"I meant to study for my Contracts exam, Professor Schutz, but I was detained by other business." Schutz: "Too bad, bud. Good luck in Dental School."]

September 1855--Defendants,  Eads & Nelson, placed their boat over the wreck and commenced to raising the lead.

Before thinking about what the Court held, what does your common sense tell you about who is the first possessor, Lazy Brazelton or Energetic Eads?

What is possession? What are its elements?

P. 110: “The occupation or possession of property lost, abandoned or without an owner must depend upon [1] an actual taking of the property with [2] the intent to reduce it to possession.”

Which of those two elements did Brazelton lack? 

 

Now consider this statement from Carol Rose's article on Possession as the Root of Title:

 "The first [person] to say, 'This is mine,' in a way that the public understands, gets the prize, and the law will help him keep it against someone else who says, 'No it is mine.'"

 

Apply this maxim to Eads v. Brazelton.

 

Finders, Keepers, Losers and Weepers

As we begin to read the title-by-possession/finder's cases, notice some typical situations that could arise:

1. Finder vs. True Owner--if I lose my watch and Perlman finds it, who should win when I sue Perlman to get my watch back?

2. Finder vs. Finder--suppose Perlman and I are walking down O Street together when I spot a Rolex watch lying on the sidewalk, and I exclaim, "Oh, look at that watch lying just ahead on the sidewalk." Perlman dives for the watch and gets to it before I do. In a law suit between Perlman and me, who should win? Now suppose I find watch on Day 1. On Day 2, I leave it behind in Faculty Lounge. Perlman finds it on Day 2. Who has right to possession, me or Perlman?

3. Finder vs. Wrongdoer--suppose I find a watch on the sidewalk and bring it to Perlman's jewelry shop for an appraisal. Perlman refuses to return the watch to me. When I sue Perlman, who should win?

4. Finder vs. Landowner--the hardest cases according to one scholar are those between the finder and the owner/occupant of the premises where the item is found. Suppose I invite Schutz over to my house to watch some NHL hockey. While walking in my back yard, Schutz discovers a diamond ring lying on the ground. Although neither he nor I claim to be the true owner of the ring, which of us should have possession of it following Schutz's discovery? Should it matter if Schutz found the ring, not at my home, but while getting a manicure at my makeover spa?

As you read the cases for class, ask yourself in which of the above classifications the case should be filed.

Goddard v. Winchell (p. 103): "Is this Heaven? No, it's Iowa."

Cast of Characters

Pl--Goddard (landowner)

Hoagland--Finder

Def--Winchell (purchased meteorite from Hoagland)

If you were the judge in this case, how would you have decided it? Explain your reasoning? How important are the "enlightened demands of the time in which we live" as cited by defendant?

Suppose the meteorite was not imbedded in the soil—suppose it bounced and rolled and came to a rest on the surface of Plaintiff’s field. Same result? Explain.

Suppose that instead of a meteorite a piece of a man-made space station fell onto Goddard’s land, became imbedded 3-feet deep in the soil, and was removed by Hoagland and sold to Winchell.

Now how should the case come out? The Court implies that Winchell should win on these facts. Do you agree? Explain your reasoning.

Suppose the object landed and settled on the surface of the land (i.e. it was not imbedded in the soil)?

What is the best argument for the landowner, Goddard?

I like to think that Creedance Clearwater Revival (CCR) were thinking of this case when they performed "It Came Out of the Sky":

 

Whoa, it came out of the sky
Landed just a little south of Moline

Jody fell out of his tractor
Couldn't b'lieve what he seen, oh

Laid on the ground shook
Fearin' for his life
Then he ran all the way to town
Screamin', "It came out of the sky"

Goddard v. Winchell: Hypos to Ponder

Now, suppose I own a single-family home across the street from Wrigley Field in Chicago. One day when the Padres are in town, Manny Machado hits a home run that lands on my front lawn. Now suppose Schutz climbs my chain link fence (ignoring the no trespassing sign), picks up the ball, and claims to own it. I sue Schutz for the ball claiming it belongs to me.

What are the best arguments for both sides (i.e., for both the landowner and the finder)? How is this case different from Goddard? Is the difference sufficient to drive a different result?

One more--suppose I put an old bookcase out with the garbage on trash day. The bookcase is a bit scratched, but it is solid wood and still usable. You put the bookcase in the back of your pickup, take it home, and put your law books on it. Who owns it? Why?

Now take a look at the casebook at note 5, p. 107:

"The Iowa legislature authorized the state archeologist “to deny permission to disinter human remains that the state archeologist determines have state and national significance from an historical or scientific standpoint for the inspiration and benefit of the people of the United States.” Iowa Code Ann. § 263B.9 (1996). Pursuant to this statute, the state archeologist determined that a vacant lot in a residential subdivision was the site of an ancient Native American burial ground, that it should not be disturbed, and that protection of it required prohibition of construction of a residence on it. Denial of a permit to build on the lot was upheld, and the lot owner was held not entitled to compensation. Hunziker v. State, 519 N.W.2d 367 (Iowa 1994), cert. denied, 514 U.S. 1003 (1995)."

Although this law is designed to serve a noble purpose, should the state be required to pay full, fair compensation to the landowner for this confiscatory regulation? Suppose you are a working class single mom who had saved for years to purchase a lot in this residential subdivision to build a home for your family. Maybe you paid $50,000 or even $100,000 for the lot. Should the State of Iowa be allowed to simply take your land without just compensation? See U.S. Const. amend. 5 ("nor shall private property be taken for public use, without just compensation.")

Property Spring 2026: Assignment For First Few Classes

                                                Sunrise in Lincoln January 2023

 Please read this assignment:

Classes 1-2: Casebook p. 1-18 (for background); Casebook p. 103-113 (Goddard and Eads) 

 Classes 3-4 (double class Wednesday). Casebook p. 113-124 (Popov v. Hayahsi ); in class viewing of Up For Grabs, a documentary about this case. This will be a double class (i.e. 2.5 hours). 

Classes 5-6:  Casebook P.124-129; 131-133 (Armory; Bridges, Sharman, McAvoy); P. 138-140

Required Text:

Cribbet, Findley et al, Property: Cases and Materials (9th ed. 2008)(your "Casebook")

Property Rights: Necessary for All Other Rights?

 "Without property rights, no other rights are possible." --Ayn Rand

What are your thoughts? What is it like to live in a society in which everything is owned in common (i.e. by the government) and all assets are allocated by government officials?

Mine and Yours: To Recline or Not to Recline?

                                           Picture of Reclining Airline Passenger

 The two most important words in the vocabulary of Property are "mine" and "yours."

The law of Property helps us know the boundary between what is mine and what is yours, and the primary purpose of government is to secure and protect that boundary and the property rights it encompasses.

But what happens when the boundary line is ambiguous? Take the case of airplane seats and the boundary between a reclining front seat and knee room for the back seat. Who owns those precious few inches of space? The recliner in front or the knee-space guy in back?

I am a recliner; that recline button belongs to me, and my cranky lower back needs some relief during a long flight. And I never complain if the guy in front of me reclines. But maybe you have long legs and need the knee space in front of your seat. Of course, most airlines will allow you to purchase seats with more knee-space if that is what you really need.

Who owns those precious inches? Is that space mine? Or is it yours? Of course, all the seats on the plane belong to the airline, and the airline can either permit or prohibit reclining. The recline button suggests that the space belongs to the passenger in front, but do we need more than an ambiguous inference?

Certain self-appointed travel "experts" (travel bloggers and podcasters) say that the "best practice" is to refrain from reclining. Why is this the best practice? Who decides what the best practice is? So-called experts, or each individual flyer who purchases a seat? After all, this is a zero-sum game and one person wins and one loses. Why should we think that knee space trumps incline space?

Should we have a clear rule one way or the other? Or should we let tired passengers work it out between themselves? 

Which approach would better keep the peace?

 Do you recline your seat? Or nah?

Now consider this quotation from Profs. Heller and Salzman:

"All property conflicts exist as competing stories. Each side picks the story that presents its claims on the moral high ground, and each side wants ownership [rules] bent toward its view." What are the competing stories in the battle over airplane seat reclining?

See generally Heller & Salzman, Mine! at 2-15 (2021). I am not assigning this book, but it is a wonderful--and fun--book about issues of private property and ownership.

We Hold These Truths To Be Self-Evident

                                                              Picture of Thomas Jefferson

 

Property Professors like to say that property is created by the state:

"Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases." Casebook at p. 8.

That may be a pragmatic concept of property (protection of property rights depends upon the force of law behind them), but is it the concept upon which our Nation was founded?

As we celebrate its 250th anniversary (1776 to 2026), consider the Declaration of Independence:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."

Are there any "self-evident" truths? If so, where do these truths come from?

What came first--individual rights and liberties, or our government? First come God-given, inalienable rights, then comes government to secure these rights.

The role of government in America, then, is not to abolish our rights, or to take our rights, or to restrict our rights, or to abridge our rights, or to redistribute our rights; it is to secure our rights, to protect our rights, and to champion our rights and liberties.

By the way, what is the right to "pursue happiness"? Is this a right to happiness? Or merely a right to work hard seeking to obtain happiness?

 

Does the label "Ownership" Have any Significance?

Take a look at the question asked by the authors of our casebook on page 3 (second paragraph):

Does the label --that Mary is the "owner" of her car--"have any practical significance?"

What are your thoughts about the concept of private property rights and ownership? Does it have any legal significance? Moral significance? Where do property rights (ownership rights) come from? From the state? From nature? From God?

Should we say "Mary owns her car?"

Or should we say "the state allows Mary to use the car in her possession?"

What is the difference between those two phrases?

Again, the authors of the casebook chime in:

"Does that label have any practical significance? Is it not more realistic to refer to specific enforceable claims by Mary regarding the car?" (p. 3)

Does the label "Mary owns her 2020 Honda Accord" have moral significance?

Does it say to the world "This car is Mary's property and the state exists to protect Mary's unalienable right to own her property?" Remember the importance of the legal line between what is mine and what is yours.

Is private property a good thing? Or should we all just share everything in common?  

Who would control what we eat, where we live, where we can travel, what we read, where we work, and where we worship God in a world without private property? Are property rights fundamentally important to liberty and autonomy?

Carol Rose on Melville and Possession as the Origin of Property

Here are a few quotations from Prof. Rose's article, Possession as the Origin of Property, 52 Chi. L.Rev. 74 (1985):

1. "I turn to the maxim of the common law: first possession is the root of title. Merely to state the proposition is to raise two critical questions: what counts as possession, and why is it the basis for a claim to title?"

2. "Society is worst off in a world of vague claims; if no one knows whether he can safely use [property], or from whom he should buy it if it is already claimed, the [property] may end up being used by too many people or by none at all."

"Economists [understand that] clear titles facilitate trade and minimize resource-wasting conflict....In short, we will all be richer when property claims are unequivocal, because that unequivocal status enables property to be traded and used at its highest value."

Query: Does this suggest that having a clear rule--any rule--about ownership is more important than the substance of the rule?

3. "The first [person] to say, 'This is mine,' in a way that the public understands, gets the prize, and the law will help him keep it against someone else who says, 'No it is mine.'"

4. "We may admire nature and enjoy wildness, but those sentiments find little resonance in the doctrine of first possession. Its texts are those of cultivation, manufacture and development. We cannot have our fish both loose and fast, as Melville might have said. The common law gives preference to those who convince the world that they have caught the fish and hold it fast."

Think about some of these ideas as you read the finders and first possession cases this week.

Possession in the News--Paris Hilton's Cocaine

                                                   Picture of Paris Hilton

Property law is ubiquitous. A few years ago, Paris Hilton was busted for possession of cocaine, after the magic powder fell out of a purse she was carrying in the presence of a police officer. According to the Lincoln paper, Paris claims that the purse she was carrying was not hers and that she had no idea it contained cocaine.

"She told me the purse was not hers, that she had borrowed it from a friend," Las Vegas police Lt. Dennis Flynn wrote in his report of Hilton's arrest shortly before midnight. The friend was not identified.

Assuming Hilton was telling the truth about the purse not being hers, what does the Eads case tell us about whether she was in "possession" of the cocaine?

By the way, according to the newspaper report mentioned above, Ms. Hilton does admit that the cash, credit cards, and asthma prescription medicine also found in the purse do belong to her.

Hmmm. Anyone want to take the case as her defense counsel in this little dust up with the law?

“Social Justice” and Property Law

Property is a course that contains a great deal of foundational legal vocabulary and concepts--such as first possession & estates and future interests--but it also contains a great deal of public law and “social justice” content. Most of the latter will arise a few weeks into the course when we study constitutional property rights under the Takings Clause, zoning restrictions on religious land use, and exclusionary zoning and equal protection under the 14^th Amendment.

But be aware that no one ideological side has a monopoly on “social justice.” There are many sides of “social justice” and no one side—not progressives, not conservatives, not moderates—has a monopoly on social justice. Indeed, in many cases there are competing views of “social justice” on each side of the case. For example, when burdensome environmental regulations are imposed on the use of land, we may have a conflict between environmental “justice” on one side and protecting private property rights under the Constitution (economic “justice”) on the other.

Neither side is “right” and neither side is “wrong.” There are no ideological truths, just ideological opinions and arguments. There are also no non-debatable arguments.  Public interest lawyers are often involved on both sides, and again neither progressives nor conservatives have a monopoly on what is good policy and what is in the public interest.

Inclusive leaders in the law acknowledge this and recognize that the lawyers and parties on both sides of these cases are reasonable persons of good will. The cancel culture is anathema to inclusion and diversity.

Both conservatives and progressives should consider getting involved in public interest law and pro bono service. In other words, "social justice" means different things to different lawyers, and thus "social justice" law is for everyone.

Question to think about: 

Suppose Terrific Tenant is unable to pay his rent for several months. Lovely Landlord, brings an action to evict Terrific Tenant for nonpayment of rent. Which lawyer in this case is on the side of justice--Tenant's lawyer seeking to stop the eviction, or Landlord's lawyer seeking to recover the property so it can be leased to a new tenant who will pay the rent? Or, perhaps, both lawyers? What is justice in a case like this? Are both tenants and landlords deserving of justice? If justice means getting what you deserve, where is justice in a case like that between Terrific Tenant and Lovely Landlord? Tenant is entitled to the protections determined by the law, and Landlord is entitled to payment of rent or his property back.

Do You "Feel" or "Think" About Legal Issues

 "Using 'feel' instead of 'think' is a sign that feeling is doing more work than thinking." --Ed Whelan

RLUIPA & Nebraska L-T Act

 Alex passed this information on to me:

 A Property student asked for confirmation on if you had told the class that for Nebraska landlord tenant and RLUIPA exam questions, you would provide the relevant provisions on the exam.  I don't recall you stating this, but I just wanted to confirm with you.

And here is my answer to Alex:

No. I said if I thought they needed the text of RLUIPA [to answer a complex question], I would provide it. Nothing about landlord-tenant act. They should have basic knowledge of both statutes.

In other words, I expect you to have a reasonable understanding of the basic substance of both RLUIPA & the Nebraska Residential Landlord-Tenant Act. Basically, know the provisions we discussed and analyzed. If I were to ask a complex issue of statutory construction, I would quote the relevant statutory provisions. But I expect you to know the basic doctrines and definitions that we discussed in class.

Basically, assume I have reasonable expectations about your knowledge of the materials we covered. I am a reasonable test writer (not unreasonably reasonable, just ordinarily reasonable), and my expectations of your knowledge are reasonable.

See you Monday at 5 PM.