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PROPERTY 1 – GROUP I

TUTOR: CHRISTOPHER MACARTHUR

STUDENT: NICK WOOD

WORDS: 1,407
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This essay requires of its author a judgement and evaluation of that judgement with regards to
property rights in a hypothetical scenario where a well-known musician’s hair of considerable
value has competing claims to title following his death. The first question posed by the
circumstances detailed in the question is as to whether Nigel the musician’s hair can be
classified as property at all. Though it is common law tradition that there is no property in a
dead body, the hair clearly is property for two reasons. The first of these is the precedent set
in the case R v Kelly where the judge ruled that as the bodies in contention had value they
were property. The second reason, which logically follows from the first, is that to try and
argue that something of such value, estimated at £100,000, is not property would be difficult.
The competing claims to title are between Ian, the executor of Nigel’s estate, Derek, Nigel’s
friend who was given the hair as a bailee and then lost it, Bobbi, whose private land the hair
was lost on and Marty, a trespasser on Bobbi’s land who found and currently holds the hair.

Mozley and Whiteley’s Law Dictionary (9th edition by John B Saunders) makes four points
outlining the duties of an executor. Three of them deal with possession, these are “To prove
the will of the deceased”, “To make an inventory of the goods and chattels of the deceased
and to collect the goods so inventoried; and for this purpose if necessary to take proceedings
against debtors to his testator’s estates” and “To pay first the debts of his testator and then the
legacies bequeathed by his will; and to distribute the residue in default of any residuary
disposition among the persons entitled thereto on an intestacy”. These duties may offer Ian as
the executor of Nigel’s estate rights to Nigel’s hair, but only if it can be established that the
hair was Nigel’s property. If the court were to be persuaded by the decision taken in the
California state court in the case Popov v Hayashi then they might reject the hair as Nigel’s
property at all due to the notion of ‘intentional abandonment’. It is unlikely that a UK court
would be persuaded by intentional abandonment, and the Popov v Hayashi case has little to
no authority here as a decision taken in California, and one that James Penner has described
as “an atrocity of a decision... embarrassing in many ways”, with ‘intentional abandonment’
being one of the many aspects of the case that he took issue with. It would also be difficult to
argue that Nigel did indeed intentionally abandon the hair, as it wasn’t him who lost it. Once
the hair was gone however, it is established that he had no intention of reclaiming it, saying
of the hair, “good riddance”. More convincingly it may not be deemed Nigel’s property as he
made a gift of it, intending for the hair to be given to Jeanine. The fact that Nigel intended the
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hair as a gift would be more likely to carry weight in a UK court, as this is a recognised
principle in our common law tradition, as can be seen from the case Greet v EWCA Crim
205. On this basis I think it is possible to conclude that the hair was not Nigel’s property as
he did not want it as his property, which discredits Ian’s claims to title.

Derek’s claim to title rests on his rights as a bailee following a bailment that was agreed
between himself and Nigel. In the case ‘The Winkfield’ the court ruled that the Postmaster-
General, the bailee in the case, had rights of possession when ruling that these rights had been
violated and that the Winkfield should pay full damages to the bailee before having to answer
to any action by the bailor. Though this case does establish rights for a bailee, and Derek can
argue prior possession, his claim to title of the hair is also weak. A bailment, according to
Mozley and Whiteley’s Law Dictionary (9th edition by John B Saunders), is a delivery of
goods from a bailor to a bailee, for some purpose, upon a contract, express or implied, that,
after the purpose has been fulfilled they shall be re-delivered to the bailor or otherwise dealt
with according to his directions or kept until he reclaims them. The express contract agreed
between Derek and Nigel was firstly never fulfilled, potentially rendering the bailment
invalid and harming Derek’s rights as a bailee. As a trespasser it is also possible that his
claim should be harmed as is explored below when the essay turns to how Marty’s claim to
title is affected by committing trespass. Finally, Derek’s claim to title is rendered almost
impotent when both he and the bailor in the arrangement gave up both intentional and factual
possession of the hair by Nigel giving possession to Derek, Derek losing that possession and
then both of them agreeing not to bother looking for it.

The two remaining claims are, much the same as Auld LJ described of the case Waverley
Borough Council v Fletcher in his judgement, “the collision of two familiar notions of
English law: “finders keepers” and that an owner or lawful possessor of land owns all that is
in or attached to it”. Marty acquired no rights as the occupier of the house despite English
law’s doctrine of adverse possession, codified by the Limitations Act (1980) and amended in
2002 as can be seen in the case Pye v Graham. While it can be claimed that Marty was an
occupier at a time when Bobbi chose to discontinue possession, it was no longer than a month
before Bobbi reclaimed possession on returning from her trip abroad. To acquire rights as a
land owner through adverse possession requires years of unchallenged occupancy so it is
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clear that Bobbi has the rights as the legal landowner. Marty is indisputably the finder as the
one with factual possession of the hair who did not dispossess anyone to get it. The finder is
entitled to considerable rights even if he obtained the item unlawfully, as is outlined in the
case Webb v Chief Constable of Merseyside Police, "the fact of possession of a chattel of
itself gives to the possessor a possessory title and the possessor is entitled to rely on such title
without reference to the circumstances in which such possession was obtained: his
entitlement to do so is not prejudiced by the fact that he obtained such possession unlawfully
or under an illegal transaction. His claim can only be defeated by proof of title superior to his
possessory title". Despite this, exception is made for trespassers as is detailed in Parker v
British Airways where Donaldson LJ says in obiter that “Some qualification has also to be
made in the case of the trespassing finder. The person vis à vis whom he is a trespasser has a
better title. The fundamental basis of this is clearly public policy.

A final solution to the problem may be to enforce jus tertii and award the hair to Jeanine,
Nigel’s ex-girlfriend. It is possible that her claim could be the best as initially it had been
Nigel’s intention for her to have the hair. This claim can be dismissed however as she
rejected the hair as a gift and has since further shown less intention to possess the hair by not
claiming for it in the circumstances detailed in the question. For the reasons outlined above I
believe that Bobbi has the best claim to the hair as the owner of the land. If she didn’t claim
for it then the next best claim would be Marty’s as the finder. Though both their claims are
discredited as I believe Nigel abandoned ownership of the hair, I think Ian’s claim to the hair
is the weakest as, on the assumption Nigel gave up possession of the hair, he never really had
rights to the hair at any point. Though Derek’s claim is extremely weak as he lost both factual
possession and never had an intention for possession, on top of only enjoying temporary
bailee’s rights, his case for prior possession, a key recognised tenet of English and Welsh
law, outweighs Ian’s claim as an executor of Nigel’s estate.