those particular persons who have come into some particular relation to the parties claiming the rights, either by contract or by operation of law; rights in rem are available generally against all the world. Rights in personam require positive acts; rights in rem require refraining from acts. Anyone who does not refrain from doing any of the things to which rights in rem entitle another is guilty of a legal wrong, called a tort; but in the case of rights in personam the only person who can be guilty of a legal wrong is that person whose obligation it is to act, and in the case of contract, if he does not perform his obligation, the legal wrong is called breach of contract. In the case of contracts the persons owing the obligations are known as promisors. There are no special names for other persons owing obligations and duties,

CHAPTER III

CREATION OF PERSONAL PROPERTY RIGHTS

§ 37. How Personal Property Is Created. Having discussed each of the four elements composing the legal rights of personal property, we will now consider how such rights may be created. There are two main ways of acquiring personal property: (1) by original acquisition and (2) by derivative, or secondary, acquisition.

The first, or original acquisition, includes the ways of acquiring legal rights which relate to things which have never been the objects of ownership before, or having been for a time the objects of ownership, have returned to the common stock of unowned things. The following are all means of acquiring property by original acquisition: Occupancy, accession, intellectual labor, contract, quasi-contract, and remedial obligations.

The second, or derivative acquisition, includes the ways of acquiring legal rights to things which are now the objects of ownership by some person. The following are means of acquiring personal property by derivative acquisition: Forfeiture, succession, judgment, intestacy, insolvency, marriage, adverse possession (all forms of transfer by some act of law), gift, will, indorsement, assignment, bailment, sale (all forms of transfer by some act of the parties). Personal property, or title by original acquisition may begin either at the original beginning of the chain of ownership, or after some break therein at which ownership lost its hold. Personal property, or title, by secondary acquisition can begin only with ownership in some person. The ownership in such case is lifted out of that person and lodged in another.

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§ 38. Occupancy. Occupancy denotes the acquiring of

personal property by taking the possession of objects which belong to nobody, either because they never had an owner or because they do not now have an owner, with the intention of acquiring them. Possession is the foundation of personal property, and in modern times the best method of proving it no matter how acquired. A qualified property in wild animals may be acquired by occupancy. It may arise in three ways: per industriam (by exertion), by capturing the animals and keeping them in one's actual custody, or by inducing in them the animus revertendi, (intention of returning) by artificial means; ratione soli (on account of the land), by reason of the fact that they are on one's land; ratione impotentiæ (by reason of lack of power), where the young of animals cannot escape because of their weakness. That is, a person may acquire a qualified property in wild animals by getting them in his power (literal meaning of possession), whether physical or mental, and depriving them of their natural liberty; and such property will continue only so long as the animals are kept within one's power out of their natural liberty. P is fox hunting with his hounds and starts a fox and is in pursuit of the same, when D intercepts the animal, kills it, and carries it away. P has not wounded the fox, but claims he has acquired a property right in the animal by reason of his pursuit thereof. P is mistaken. He has acquired no property right in the fox. The fox is a wild animal and, therefore, the first person who deprives it of its natural liberty may acquire a qualified property therein, but P has not deprived the fox of its natural liberty. D has done this, and the fox belongs to him, and since he has killed the fox he has an absolute property in its carcass. A qualified property in goods lost and an absolute property in goods abandoned may be acquired by occupancy. Goods abandoned return to the common stock of unowned things, ready to become the object of ownership of him who first occupies them. A chattel lost has not completely returned to the common stock of unowned things so far as the true owner is concerned, for if the latter turns up he is entitled

to claim it; but as to everyone else it is an object of ownership for the one who first occupies it. Such person is a bailee as to the true owner. P finds a roll of bank bills in a public place in a hotel, where they have been lost by some one, but it is not known whether by a guest, boarder, or a caller. The hotel keeper claims he is entitled to the possession of the same, and P insists that he has the right to possession. P has a valid claim against all the world except the true owner. The finder acquires a qualified property in lost chattels as to the true owner, and the absolute property as to everyone else.

If a chattel is left in a certain place, such act makes the owner of the place a bailee, and no one else has a right to make himself a bailee for the true owner by finding the same. A finder of lost articles has no lien for recompense unless a specific reward has been offered, nor does he have any remedial right to recompense of any sort unless where he has made repairs and incurred expense in preserving the same. Under the English common law the title to waifs, estrays, treasure trove, and wrecks, instead of vesting in the finder, vested in the king, who held for a time as bailee for the true owner, and then if not claimed owned the same absolutely. In the beginning of the law of property, occupancy was the most common method of acquiring property rights, for then none of the possible objects of ownership had been appropriated, but now this is an uncommon method of acquiring property as most things are already appropriated by some one.1

§ 39. Accession and Confusion. A second way by which title by original acquisition may be acquired is by accession. Accession is grounded upon occupancy. A person acquires title, not from some former owner, but because he is the first owner. The underlying principle of accession is that one acquires title to some object of ownership because it is added to an object of ownership which he already owns.

1 Pierson v. Post, 3 Caines 175; Manning v. Mitcherson, 69 Ga. 447; Goff v. Kilts, 15 Wend. (N. Y.), 550; Hamaker v. Blanchard, 90 Pa. Stat. 375; McAvoy v. Medina, 11 Allen 548; Heslem v. Lockwood, 37 Conn. 500.

This would include chattels produced by his own chattels, as crops on a leasehold, or the increase of animals, chattels united to or incorporated with his chattels, and chattels transformed into another species or so increased in value that the original chattels are mere accessories. The last is known as specification, but it is a form of accession for a person acquires the personal property in the chattels of another because they are added to a greater object of ownership which is the result of his labor. The property in things growing on the land belongs to the owner of the land ordinarily; but a person who has a leasehold estate in land, though it is classified as a chattel, is entitled to the fructus industriales growing thereon, and the right to emblements is only an extension thereof; this is on the principle of accession.2

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The title to the brood of animals belongs to the owner of the female for the same reason, and this applies to the increase of mortgaged animals so that the mortgagee holding the legal title to animals acquires a right to their offspring. If the materials of one person are innocently united to the materials of another by labor so as to form a joint product, the one who has the legal right to the principal materials will acquire the legal right to the whole by accession, in the absence of agreement. So where an article is to be manufactured for another the personal property with respect to the same, while making and after finished but before appropriated to the contract, is in the person who furnishes the whole or the principal part of the materials. But where the owner of a damaged or worn-out article delivers it to another for repairs, the repairer furnishing materials, the owner of the damaged article continues to be the owner no matter what the value of the materials used in making the repairs.*

Again one who expends labor upon the chattels of another by mistake and in good faith thinking they are his own may

2 Reilly v. Ringland, 39 Ia. 106.

3 Kellogg v. Lovely, 46 Mich. 131.

4 Pulcifer v. Page, 32 Me. 404; Gregory v. Stryker, 2 Denio 628.