Keron v Cashman and Equal Right of Possession

 Here are the facts of Keron v. Cashman (cited on p. 123 of Popov):

The money was found under the following circumstances: A party of boys, five in number, were going on their way home along a railroad track in the city of Elizabeth. The youngest boy, Crawford, about nine years of age, being ahead of the others on the railroad embankment, picked up an old stocking, tied at both ends, and in which something was tied up. Crawford says that, after picking up the stocking, he began swinging it, and that Cashman, the oldest of the boys, snatched it away from him. Cashman and the other three boys swear that Crawford threw the stocking down the embankment, and that then Cashman got it, and commenced beating the boys with it. The stocking passed from one boy to another in this play, and finally it broke open while Cashman was beating another boy with it, and it was then first found or suspected that the stocking contained money. All of the boys then examined the contents of the stocking together. The stocking contained $775 in bills, besides some rags, cloths, ribbons, etc.

 

As Judge McCarthy notes, in Keron:

 The court noted that possession requires both physical control and the
intent to reduce the property to one’s possession. Control and intent must be
concurrent. None of the boys intended to take possession until it became
apparent that the sock contained money. Each boy had physical control of
the sock at some point before that discovery was made.
Because none could present a superior claim of concurrent control and
intent, the court held that each boy was entitled to an equal share of the
money. Their legal claims to the property were of equal quality, therefore
their entitlement to the property was also equal.

 

Do you agree with the holding in Keron? How are the facts of Keron different from the facts of Popov?

Class is From 3:15 until 4:30 Starting Tomorrow

 The Dean's Office has made the change. 

See you tomorrow at 3:15!

Is the Takings Clause on the Bar Exam: From Google AI

Yes, the Takings Clause of the Fifth Amendment is a standard topic on the bar exam. It is typically tested under both Constitutional Law and Real Property. 

How It Is Tested

Multistate Bar Examination (MBE): It appears as part of the 200 multiple-choice questions, specifically within the "Individual Rights" category of Constitutional Law.

Multistate Essay Examination (MEE): It is often featured in crossover essay questions that combine Property law with Constitutional law issues, such as zoning or eminent domain. 

Key Concepts to Know for 2026

For exams in 2026, including the NextGen Bar Exam launching in July 2026 in some jurisdictions, you should be familiar with:

Possessory (Per Se) Takings: Physical occupation of property by the government.

Regulatory Takings: When a government regulation goes "too far," depriving property of its economic value.

The Penn Central Test: A three-factor balancing test used to determine if a regulation constitutes a taking (economic impact, interference with investment-backed expectations, and the character of the government action).

Public Use & Just Compensation: The requirement that takings be for a public purpose and that owners receive fair market value. 

I love our wonderful written Constitution (especially the Bill of Rights). But in Property, I only teach it in cases in which it is relevant to the law of Property.

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.