PROPERTY QUIZ TWO
Fall 2009 DAY CLASS
Professor Peter M. Malaguti
September 11, 2009
ANSWERS AND EXPLANATIONS
Questions 1 and 2 are based on the following fact pattern:
The St. Paul Hotel is located in St. Paul, Minnesota. For more than 20 years, Ferdinand Hotz, a jeweler has
visited St. Paul on business, and has made the St Paul Hotel his local headquarters. He had long been one of the
hotel’s regular patrons, and was personally know by management and most of the staff employees. Several years
ago, Hotz and made and sold to Mrs. Pamela Peet an engagement ring. Recently, one of the small diamonds on the
setting fell off, and Mrs. Peet arranged with Hotz to have it replaced. They agreed that Mrs. Peet would leave the ring
for Hotz at the concierge counter of the St. Paul hotel on September 7, 2008. The agreement was that Hotz would fix
the ring and return it when he was next in town. At four p.m. on September 7, 2008, Mrs. Peet went to the concierge
counter of the St. Paul Hotel, took the ring off her finger, and handed it to the counter attendant, Miss Edwards. Peet
watched as Edwards took out an envelope and wrote “Ferdinand Hotz” on it. Mrs. Peet handed Edwards the ring and
left. She did not pay any fee to the Hotel for this service. Intending to place the ring in the safe behind the concierge
counter, Edwards placed the ring in the envelope, sealed it, and put it on the counter when the phone behind her
rang. She turned around to answer the phone and, at that moment, a man walked by and took the envelope with the
ring in it. Miss Edwards saw the man leaving, screamed, and then ran after him. She could not stop him. Miss
Edwards then immediately called the police, but the ring has never been found. Peet has sued the St. Paul Hotel for
the value of the engagement ring.
Q.1.
At common law:
A.
The St. Paul Hotel will prevail because the bailment relationship between Mrs. Peet and the Hotel
benefited the bailor, and the low standard of care provides that the Hotel is liable only for gross
negligence or wanton and willful conduct.
B.
The St. Paul Hotel will prevail because the standard of care in all bailment cases was ordinary
negligence, and the St. Paul Hotel exercised the care a reasonably prudent person would exercise in
the same circumstances.
C.
Mrs. Peet will prevail because the bailment relationship between Mrs. Peet and the Hotel was one that
benefited the bailee, and the high standard of care provides that the Hotel is liable for only slight
negligence.
D.
The outcome will depend on whether the finder of fact determines that Miss Edwards, on behalf of the
St. Paul Hotel, acted as a reasonably prudent person would act in the same circumstances because the
standard of care in all bailment cases is ordinary negligence.
The best answer is “A.” Mrs. Peet is the bailor and the St. Paul Hotel is the bailee; the St.
Paul Hotel is in rightful possession of someone else’s property. You should have
immediately eliminated “B” because that answer states the modern version of the rule,
not the one that existed at common law. At common law, the standard was not ordinary
negligence in all cases. The same reasoning holds as to “D.” “A” is a better answer
than “C” because the bailment relationship clearly benefits the bailor, Mrs. Peet.
Although one might be able to construct an argument that the Hotel achieved the benefit
of “good will” by agreeing to hold the ring, at most this would create a bailment of
mutual benefit and there is no answer supporting such a construction.
Q.2.
Under the modern rule:
A.
The St. Paul Hotel will prevail because the bailment relationship between Mrs. Peet and the Hotel
benefited the bailor, and the low standard of care provides that the Hotel is liable only for gross
negligence or wanton and willful conduct.
B.
The St. Paul Hotel will prevail because the standard of care in all bailment cases was ordinary
negligence, and the St. Paul Hotel exercised the care a reasonably prudent person would exercise in
the same circumstances.
C.
Mrs. Peet will prevail because the bailment relationship between Mrs. Peet and the Hotel was one that
benefited the bailee, and the high standard of care provides that the Hotel is liable for only slight
negligence.
D.
The outcome will depend on whether the finder of fact determines that Miss Edwards, on behalf of the
St. Paul Hotel, acted as a reasonably prudent person would act in the same circumstances because the
standard of care in all bailment cases is ordinary negligence.
The best answer is “D.” You should have immediately eliminated “A” and “B” because
those answers state the common law version of the rule, not the one that exists today.
Today, the standard is ordinary negligence in all cases. The difference between “B” and
“D” is that “B” improperly concludes that Miss Edwards was negligent when a finder of
fact could have determined otherwise. “D” states the correct rule of law, and properly
leaves the determination of whether Miss Edwards acted as a reasonably prudent person
would in the same circumstances up to finder of fact.
Q.3.
Oliver was the record owner of Spiritacre, a 20 acre undeveloped parcel of wooded land. Aaron was a
member of the Psychedelic Church of the Natural Order. A primary principle of that religion is that people are
incapable of owning private property. In 1982, Aaron moved onto Spiritacre, constructed a shelter and lived there
without interference until 2008. Assume for this question that Aaron’s possession was open and notorious, actual,
exclusive and continuous. In early 2009, Aaron quit his religion, became a capitalist and sued Oliver, claiming that
he had acquired title by adverse possession. Oliver has defended the suit on the ground that Aaron’s religious belief
that people are incapable of owning private property prevented him from forming the requisite intent to make out the
hostility element of adverse possession. In that action, Oliver will:
A.
Prevail, because Aaron cannot be deemed a hostile possessor without fully appreciating that he created
an affront to Oliver’s right to exclude.
B.
Prevail, because Aaron did not form the requisite intent to trespass upon Spiritacre.
C.
Lose, because Aaron intended to go on Spiritacre without Oliver’s permission, and remained there for
the requisite statutory period.
D.
Lose, because human dignity and public policy requires that Aaron’s religious beliefs be respected
under the Free Exercise Clause of the First Amendment of the United States Constitution.
The best answer is “C.” The “hostility” requirement of adverse possession has nothing
to do with one’s subjective intent. “Hostility” requires that the adverse possessor
actions stand as an affront to the owner’s right to exclude others from the property. In
the vast bulk of adverse possession cases, one need only be a trespasser – intentionally
going on someone else’s land without permission – to satisfy the “hostility” requirement.
And indeed, many adverse possessors don’t even realize that they are trespassing.
Based on this knowledge, you should have quickly eliminated “A” and “B.” You should
have also eliminated “D” rather quickly by recognizing that, even if the law it articulates
is correct, it involves law entirely irrelevant to adverse possession analysis.
Q.4.
Bennie Gill liked to fish in the waters of the Lotsafishtocatch River located in the Michigan Upper Peninsula.
His preferred method was to employ a large “purse” net with a large opening that Gill would “draw” closed when he
wanted to haul in his catch. Using his pickup truck, Gill would “draw” the large opening down into a relatively small
opening, and drag the net and fish out of the water and onto the shore. The net would hold as much as 100 pounds
of fish at a time. During the process of “drawing” and “dragging,” the mouth of the net never closed completely, and a
few fish would always escape. However, Gill’s method would usually net him about 90 pounds of fish at a time.
On numerous occasions, Michigan game wardens clandestinely observed Gill’s fishing process. The applicable
fishing statutes proscribed the “taking, capture or corporeal possession” of fish outside of the fishing season, which
ran from April 15 to September 30. On March 12, 2008, a time outside of the fishing season, the wardens observed
Gill place his net in the river as described above. After the net filled with about 100 pounds of fish, but before Gill
dragged it onto the shore, the wardens arrested Gill for fishing outside of the fishing season.
Gill’s best argument that he is not guilty under the applicable fishing statutes is that:
A.
He never possessed any of the fish because the state could not identify them as trout, bass, pickerel, or
the like.
B.
The method of fishing he employed failed to reduce any single fish to corporeal possession because
any one of them might escape through the small opening.
C.
The state could not prove he was a good fisherman.
D.
Because Michigan is the “wolverine state,” in which fish are animals “farae naturae” rather than “animus
revertendi.”
The best answer is “B.” Fish are wild animals. We know from our “capture doctrine”
cases, that one may only own a wild animal if s/he deprives it of its natural liberty by
killing it, mortally wounding it, or physically holding or trapping the animal. “A,” “C” and
“D” essentially are all throw-away answers that you can eliminate immediately. The type
of fish Gill captured, and his skill as a fisherman, and Michigan being the “wolverine”
state, had nothing to do with the statutes at issue. “B” is the best answer because it
approximates the holding in Pierson v. Post: being extremely close to depriving a wild
animal of its natural liberty is not good enough. And the statute at issue seems to
require the equivalent of deprivation of natural liberty.
Q.5.
In a proper claim of constructive adverse possession:
A.
An adverse possessor claims that the statutory period must be shortened from the normal amount
provided under the applicable state statute.
B.
An adverse possessor claims the right to ownership under an “adverse” rather than “actual” possession
of the real estate in questions.
C.
An adverse possessor who received a defective deed, and believed in good faith that s/he got good
title, and who satisfies all five elements of adverse possession, obtains title to the entire parcel
described in the deed rather than what s/he actually possessed.
D.
An adverse possessor who received a defective deed, and believed in good faith that s/he got good
title, and who satisfies all five elements of adverse possession, obtains title to all real estate owned by
the record owner rather than what s/he actually possessed.
The best answer is “C.” If someone commences an adverse possession under a
defective deed or will that s/he believes in good faith conveyed the property at issue,
constructive adverse possession will allow the adverse possessor to “boost” the
acreage from what s/he actually possessed to that described in the defective deed or will.
One can only employ constructive adverse possession if s/he has first met all five
elements of adverse possession. The only answer that approximates the rule of law is
“C.” If you read “D” closely, you will see that it incorrectly would give the adverse
possessor title to all real estate owned by the record owner, even that not described in
the defective deed to the adverse possessor.