17 replies to this topic

[Goodfella]

Enjoy!


http://malvern.patch...k-country-clubs

[hebron1427]

golf balls in a lake are considered to be abandoned property, so i doubt you could actually steal them. they're guilty of trespass but that's it (not even criminal trespass). a decent lawyer should be able to make this go away.

[hendersnb]

 hebron1427, on 20 April 2012 - 01:39 AM, said:

golf balls in a lake are considered to be abandoned property, so i doubt you could actually steal them. they're guilty of trespass but that's it (not even criminal trespass). a decent lawyer should be able to make this go away.

Abandoned property only applies to property abandoned on public land.  If the property (balls) are located on private property (the private club, including in their pond, even if abandoned there) the property owner(s) have legal claim to them and especially if they have an existing contract with another dive team to extract them.  Hence there are damages suffered by the club ownership and the theft and stolen property charges will stand.  

On the other hand, if they got the balls back, the only real damages will be court costs which is what I am guessing will be settled.  

No charge for the legal advice!  

[inthefairway]

 Goodfella, on 19 April 2012 - 10:02 PM, said:

Enjoy!


http://malvern.patch...k-country-clubs

That really takes balls!!!

[Swingie]

Shady way to make profit and not have any capitol costs (besides time/divegear etc).
Contracts like that would be petty to a nice club, hence the ninja attemps to get good balls from quality ball using players...

[596]

I'd like to know who the "business associate" was that told them they could take the balls from the ponds.  IF they were a business person, owner, director, employee, of the club, then there is a problem with the charges levied against them.   However, if this person had no authority to tell them they could have the balls, then there is a legal problem for those arrested.  Yes, they were trespassing and thus stole the golf balls from private property.  

I for one would never dive in a golf course pond/lake.  There are alot of chemicals that are not real good for either you or your scuba gear in golf course ponds.  I am a Diver Master and have turned down numerous requests to dive for stuff in course ponds/lakes.  That stuff was mostly clubs thrown in fits of rage.

[El Kabong]

 596, on 20 April 2012 - 02:28 PM, said:

I for one would never dive in a golf course pond/lake.  There are alot of chemicals that are not real good for either you or your scuba gear in golf course ponds.  I am a Diver Master and have turned down numerous requests to dive for stuff in course ponds/lakes.  That stuff was mostly clubs thrown in fits of rage.

I worked maintenance at a nice course when I was in HS, and on Mondays when the course was closed and we finished early, I would dive in a couple of the ponds on the course and retrieve clubs.  If it could be determined to which member they belonged, they were returned.  If not, they went into the "give a kid a club" barrel in the pro shop.  Either way the head pro paid me $5/club.

It was hard on my gear, but diving for clubs on Mondays meant that while the other grouds rats were running to 7-11 for 2/$1 hot dogs for lunch I was sitting in the maintenance shack eating a steak sandwich from the grill room.

I did draw the line at diving in the lake where the runoff went when we washed the big sprayers and fertilizer tanks - I caught a bass in there that looked like something from The Simpsons...

[hebron1427]

 hendersnb, on 20 April 2012 - 10:14 AM, said:

 hebron1427, on 20 April 2012 - 01:39 AM, said:

golf balls in a lake are considered to be abandoned property, so i doubt you could actually steal them. they're guilty of trespass but that's it (not even criminal trespass). a decent lawyer should be able to make this go away.

Abandoned property only applies to property abandoned on public land.  If the property (balls) are located on private property (the private club, including in their pond, even if abandoned there) the property owner(s) have legal claim to them and especially if they have an existing contract with another dive team to extract them.  Hence there are damages suffered by the club ownership and the theft and stolen property charges will stand.  

On the other hand, if they got the balls back, the only real damages will be court costs which is what I am guessing will be settled.  

No charge for the legal advice!  

good thing you're not charging....since you're wrong.

chattels don't become part of real property just because they are abandoned on it. abandoned property remains that classification regardless of where it is abandoned. the owner of the real property may elect to take possession of it, but, in my understanding, balls at the bottom of a lake haven't become possessory yet. further, a contract with another dive team has nothing to do with whether you own the property or not. i can contract with someone to wash a car that's sitting in my driveway; that doesn't give me any claim to ownership of the car. go read popov v. hayashi for a primer on how abandoned property works.

also, since this is a criminal case, damages wouldn't really be considered. the only question would be whether a crime was committed, i.e., whether some personal property was stolen or not; if personal property is abandoned, it can't be stolen...because it doesn't belong to anyone. so, there wouldn't be any way to commit a theft. now, trespass, yes, but that's not really a serious violation.

[chickenpotpie]

 El Kabong, on 20 April 2012 - 03:33 PM, said:

 596, on 20 April 2012 - 02:28 PM, said:

I for one would never dive in a golf course pond/lake.  There are alot of chemicals that are not real good for either you or your scuba gear in golf course ponds.  I am a Diver Master and have turned down numerous requests to dive for stuff in course ponds/lakes.  That stuff was mostly clubs thrown in fits of rage.

I worked maintenance at a nice course when I was in HS, and on Mondays when the course was closed and we finished early, I would dive in a couple of the ponds on the course and retrieve clubs.  If it could be determined to which member they belonged, they were returned.  If not, they went into the "give a kid a club" barrel in the pro shop.  Either way the head pro paid me $5/club.

It was hard on my gear, but diving for clubs on Mondays meant that while the other grouds rats were running to 7-11 for 2/$1 hot dogs for lunch I was sitting in the maintenance shack eating a steak sandwich from the grill room.

I did draw the line at diving in the lake where the runoff went when we washed the big sprayers and fertilizer tanks - I caught a bass in there that looked like something from The Simpsons...

You found Blinky??  

[hendersnb]

 hebron1427, on 20 April 2012 - 04:11 PM, said:

 hendersnb, on 20 April 2012 - 10:14 AM, said:

 hebron1427, on 20 April 2012 - 01:39 AM, said:

golf balls in a lake are considered to be abandoned property, so i doubt you could actually steal them. they're guilty of trespass but that's it (not even criminal trespass). a decent lawyer should be able to make this go away.

Abandoned property only applies to property abandoned on public land.  If the property (balls) are located on private property (the private club, including in their pond, even if abandoned there) the property owner(s) have legal claim to them and especially if they have an existing contract with another dive team to extract them.  Hence there are damages suffered by the club ownership and the theft and stolen property charges will stand.  

On the other hand, if they got the balls back, the only real damages will be court costs which is what I am guessing will be settled.  

No charge for the legal advice!  

good thing you're not charging....since you're wrong.

chattels don't become part of real property just because they are abandoned on it. abandoned property remains that classification regardless of where it is abandoned. the owner of the real property may elect to take possession of it, but, in my understanding, balls at the bottom of a lake haven't become possessory yet. further, a contract with another dive team has nothing to do with whether you own the property or not. i can contract with someone to wash a car that's sitting in my driveway; that doesn't give me any claim to ownership of the car. go read popov v. hayashi for a primer on how abandoned property works.

also, since this is a criminal case, damages wouldn't really be considered. the only question would be whether a crime was committed, i.e., whether some personal property was stolen or not; if personal property is abandoned, it can't be stolen...because it doesn't belong to anyone. so, there wouldn't be any way to commit a theft. now, trespass, yes, but that's not really a serious violation.

Hebron... Thanks for the debate.  its been a while since I got to sink my teeth into Intro to law...

     Agreed that damages would not be considered in a criminal case, but a civil case could follow where damages would be relevant.  I also agree that the abandoned property does not automatically become that of the course in every instance.  
However I disagree with your assertion that the club has no claim to ownership especially if a contract to retrieve the balls existed.  The course has implied if not expressed possession of the property by means of signing the agreement with the recovery team.  As for your car wahsing analogy, it is completely flawed.  The purpose of the dive contract would be to recover the balls with the expressed intention to gain possession of the balls for resale.  That contract would give the club the right to claim possession of the balls even if located in the lake.   If I contract you to wash my car, I have not expressed or implied that the result of that contract would result in a change of ownership of the property.
I do realize that my whole argument rests on the assumption that a prior contract existed (which was not stated in the story).  However, since the "attempt" to recover the balls required a criminal trespass they would have NO right to claim them.  And upon further consideration, I could even argue that since the balls were found in a location where the original owner had not intended them to be, they could be considered lost/misplaced property and the original owner would have first claim to them (now that's a stretch!).  
And finally, the case you cited (Popov V Hayashi) is in further support of my assertion that the balls do in fact belong to the club.  As Stated in the main issue at hand, "If an actor (The club) undertakes significant but incomplete steps to achieve possession of abandoned personal property and the effort is interrupted by the unlawful acts of others (the unauthorized dive team), does the actor have a legal pre-possessory interest in the property? YES"  Given this holding, and assuming a prior dive contract is in place to recover the balls (which would be considered significant, but incomplete steps to achieve possession) and since the divers interrupted the ownership of the balls by trespassing (an unlawful act) they are guiltily of criminal conversion.  Again your application of this case is flawed.  In scenario of this case, both parties have equal claim to the Bonds baseball due to unfair assumptions that would have to be made in order to award it to either party.  In the golf ball case, it is fair to assume that the course which had a contract in place to recover the balls would have been successful in doing so.  The acquisition of the property by means of trespass is clearly an interruption of the effort to recover the balls by unlawful acts.  


"Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the failure to continue the effort is interrupted by the unlawful acts of others, the actor has a pre-possessory interest in the property. This pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion."


I SO should have been a lawyer....

[hebron1427]

 hendersnb, on 23 April 2012 - 02:43 PM, said:

Hebron... Thanks for the debate.  its been a while since I got to sink my teeth into Intro to law...

Agreed that damages would not be considered in a criminal case, but a civil case could follow where damages would be relevant.  I also agree that the abandoned property does not automatically become that of the course in every instance.  
However I disagree with your assertion that the club has no claim to ownership especially if a contract to retrieve the balls existed.  The course has implied if not expressed possession of the property by means of signing the agreement with the recovery team.  As for your car wahsing analogy, it is completely flawed.  The purpose of the dive contract would be to recover the balls with the expressed intention to gain possession of the balls for resale.  That contract would give the club the right to claim possession of the balls even if located in the lake.   If I contract you to wash my car, I have not expressed or implied that the result of that contract would result in a change of ownership of the property.
I do realize that my whole argument rests on the assumption that a prior contract existed (which was not stated in the story).  However, since the "attempt" to recover the balls required a criminal trespass they would have NO right to claim them.  And upon further consideration, I could even argue that since the balls were found in a location where the original owner had not intended them to be, they could be considered lost/misplaced property and the original owner would have first claim to them (now that's a stretch!).  
And finally, the case you cited (Popov V Hayashi) is in further support of my assertion that the balls do in fact belong to the club.  As Stated in the main issue at hand, "If an actor (The club) undertakes significant but incomplete steps to achieve possession of abandoned personal property and the effort is interrupted by the unlawful acts of others (the unauthorized dive team), does the actor have a legal pre-possessory interest in the property? YES"  Given this holding, and assuming a prior dive contract is in place to recover the balls (which would be considered significant, but incomplete steps to achieve possession) and since the divers interrupted the ownership of the balls by trespassing (an unlawful act) they are guiltily of criminal conversion.  Again your application of this case is flawed.  In scenario of this case, both parties have equal claim to the Bonds baseball due to unfair assumptions that would have to be made in order to award it to either party.  In the golf ball case, it is fair to assume that the course which had a contract in place to recover the balls would have been successful in doing so.  The acquisition of the property by means of trespass is clearly an interruption of the effort to recover the balls by unlawful acts.  

"Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the failure to continue the effort is interrupted by the unlawful acts of others, the actor has a pre-possessory interest in the property. This pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion."

I SO should have been a lawyer....

yikes. so many errors. where to begin

first, claiming possession does not grant you possession. as stated in popov, "[p]ossession requires both physical control over the item and an intent to control it or exclude others from it." possession itself is a nuanced doctrine, but it at  the least requires dominion and control over the property which,  clearly, the club did not have since the balls were at the bottom of the  lake. if we are standing in a baseball park and i hire you to go retrieve a home run hit by a baseball player, that contract doesn't give me a right to the ball that is based on possession. There are no rights secured until you have possession. period.

Second, please define for me what a "pre-possessory interest" is. Is that like when someone pre-owns a car for you? This term is defined nowhere in the law. The "pre-possessory interest" language was this court's way of trying to be fair about the whole issue since the guy got his brains beat out by people who were trying to steal something from him. Further, it's a "qaulified right," which means it's qualified on someone else not taking possession of the property lawfully. Lawful possession is not denied simply because someone was trespassing at the time he gained possession because the landowner has no legal right to something that the landowner has no possession of. These types of issues come up commonly in water rights cases. If you are taking steps to build a well on your property and your neighbor decides to build a well and ends up taking the water from you, you don't have any legal recourse because you never had possession of the water. that's it. period. absent some statutory modification in some jurisdictions, you don't own it until you have it.

third, what you cited isn't the holding of hte case because the court DIDNT find anyone guilty of criminal conversion. in fact, that was only a sidebar to the actual issue, which was how to determine the rights someone might have in a baseball that was possessed...or, prepossessed?....for a very short period of time before being wrenched from the man's grasp as he was beaten only to be picked up by someone who had nothing to do with the fracas.

fourth, criminal trespass requires criminal intent; even if this crew didn't have a contract that they were trying to fulfill, it's not criminal to take abandoned property.

finally, the original owner of the golf ball technically DOES have the right to say it's his. once possession is taken, you have a right to ownership of the property against the entire world except anyone in prior peaceful possession of the property. although property that is truly abandoned the owner would not make a claim, if an owner makes a claim it is assumed that hte property can be classified as "lost," in which case the owner WOULD have a claim to it. the only situation where property rights vest in the landowner as opposed to the finder are when the property is classified as "mislaid," (i.e., the owner originally knew where it was but forgot that he/she left it there--like when you leave your cell phone at a restaurant). However, even if the property were classified as mislaid (which it isn't because most people who lose a golf ball actually look for them to find out where they are and can't find them), the original owner still has all right, title, and interest in the mislaid property.

your argument is based aroudn the idea that incomplete steps to achieve possession grant possession. this makes no sense; if it's incomplete, then you haven't completed possession. when i took courses in high school, if i didn't complete them, i got an I on my transcript; i didn't get an A because i took steps to get finish the course that were incomplete.

i appreciate your effort but the law is not on your side.

[Goodfella]

Your honor, I would like to add an amendment to the amendment that was amended.

[hendersnb]

 hebron1427, on 23 April 2012 - 03:44 PM, said:

 hendersnb, on 23 April 2012 - 02:43 PM, said:

Hebron... Thanks for the debate.  its been a while since I got to sink my teeth into Intro to law...

Agreed that damages would not be considered in a criminal case, but a civil case could follow where damages would be relevant.  I also agree that the abandoned property does not automatically become that of the course in every instance.  
However I disagree with your assertion that the club has no claim to ownership especially if a contract to retrieve the balls existed.  The course has implied if not expressed possession of the property by means of signing the agreement with the recovery team.  As for your car wahsing analogy, it is completely flawed.  The purpose of the dive contract would be to recover the balls with the expressed intention to gain possession of the balls for resale.  That contract would give the club the right to claim possession of the balls even if located in the lake.   If I contract you to wash my car, I have not expressed or implied that the result of that contract would result in a change of ownership of the property.
I do realize that my whole argument rests on the assumption that a prior contract existed (which was not stated in the story).  However, since the "attempt" to recover the balls required a criminal trespass they would have NO right to claim them.  And upon further consideration, I could even argue that since the balls were found in a location where the original owner had not intended them to be, they could be considered lost/misplaced property and the original owner would have first claim to them (now that's a stretch!).  
And finally, the case you cited (Popov V Hayashi) is in further support of my assertion that the balls do in fact belong to the club.  As Stated in the main issue at hand, "If an actor (The club) undertakes significant but incomplete steps to achieve possession of abandoned personal property and the effort is interrupted by the unlawful acts of others (the unauthorized dive team), does the actor have a legal pre-possessory interest in the property? YES"  Given this holding, and assuming a prior dive contract is in place to recover the balls (which would be considered significant, but incomplete steps to achieve possession) and since the divers interrupted the ownership of the balls by trespassing (an unlawful act) they are guiltily of criminal conversion.  Again your application of this case is flawed.  In scenario of this case, both parties have equal claim to the Bonds baseball due to unfair assumptions that would have to be made in order to award it to either party.  In the golf ball case, it is fair to assume that the course which had a contract in place to recover the balls would have been successful in doing so.  The acquisition of the property by means of trespass is clearly an interruption of the effort to recover the balls by unlawful acts.  

"Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the failure to continue the effort is interrupted by the unlawful acts of others, the actor has a pre-possessory interest in the property. This pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion."

I SO should have been a lawyer....

yikes. so many errors. where to begin

first, claiming possession does not grant you possession. as stated in popov, "[p]ossession requires both physical control over the item and an intent to control it or exclude others from it." possession itself is a nuanced doctrine, but it at  the least requires dominion and control over the property which,  clearly, the club did not have since the balls were at the bottom of the  lake. if we are standing in a baseball park and i hire you to go retrieve a home run hit by a baseball player, that contract doesn't give me a right to the ball that is based on possession. There are no rights secured until you have possession. period.

Second, please define for me what a "pre-possessory interest" is. Is that like when someone pre-owns a car for you? This term is defined nowhere in the law. The "pre-possessory interest" language was this court's way of trying to be fair about the whole issue since the guy got his brains beat out by people who were trying to steal something from him. Further, it's a "qaulified right," which means it's qualified on someone else not taking possession of the property lawfully. Lawful possession is not denied simply because someone was trespassing at the time he gained possession because the landowner has no legal right to something that the landowner has no possession of. These types of issues come up commonly in water rights cases. If you are taking steps to build a well on your property and your neighbor decides to build a well and ends up taking the water from you, you don't have any legal recourse because you never had possession of the water. that's it. period. absent some statutory modification in some jurisdictions, you don't own it until you have it.

third, what you cited isn't the holding of hte case because the court DIDNT find anyone guilty of criminal conversion. in fact, that was only a sidebar to the actual issue, which was how to determine the rights someone might have in a baseball that was possessed...or, prepossessed?....for a very short period of time before being wrenched from the man's grasp as he was beaten only to be picked up by someone who had nothing to do with the fracas.

fourth, criminal trespass requires criminal intent; even if this crew didn't have a contract that they were trying to fulfill, it's not criminal to take abandoned property.

finally, the original owner of the golf ball technically DOES have the right to say it's his. once possession is taken, you have a right to ownership of the property against the entire world except anyone in prior peaceful possession of the property. although property that is truly abandoned the owner would not make a claim, if an owner makes a claim it is assumed that hte property can be classified as "lost," in which case the owner WOULD have a claim to it. the only situation where property rights vest in the landowner as opposed to the finder are when the property is classified as "mislaid," (i.e., the owner originally knew where it was but forgot that he/she left it there--like when you leave your cell phone at a restaurant). However, even if the property were classified as mislaid (which it isn't because most people who lose a golf ball actually look for them to find out where they are and can't find them), the original owner still has all right, title, and interest in the mislaid property.

your argument is based aroudn the idea that incomplete steps to achieve possession grant possession. this makes no sense; if it's incomplete, then you haven't completed possession. when i took courses in high school, if i didn't complete them, i got an I on my transcript; i didn't get an A because i took steps to get finish the course that were incomplete.

i appreciate your effort but the law is not on your side.

This is getting really old... and I honestly don't care that much, but I have a problem letting thing go and I hate feeling like I lost so here goes:

First, I am glad that we finally do agree that the original owner does have claim to their balls.  Lord knows if I could claim all the balls I've lost, I'd be a happy man.  Assuming that each original owner does not show up and claim his property, we can treat this as abandoned property.  



However, the case you cited specifically uses the language you questioned.  Yes, the part of the holding which I cited is a sidebar that is directly relevant to this case and NOT to the situation in the ballpark.  Regardless of the severity of the unlawful act (battery or trespass) that interrupts the claiming of the property, the court is clear that the original actor has a claim to the property.  And in thinking further about the relevance of this case, the court 100% agrees with me.  In the case with the baseball, the individual who subsequently took possession of the ball following the initial scrum, was NOT the person who committed an unlawful act (assaulting the plaintiff), but instead a bystander who picked it up afterward.  It would be a completely different matter if he were the one who assaulted the plaintiff with the intent of taking the ball.  For it to be 100% applicable to "Golf Ball-Gate", as I am now calling it, the divers would have had to drag the balls out of the lake and off the property without taking full possession, be mugged by bystander A before they had a chance to pick them up, and bystander B picks them up and walks off.  Maybe I didn't read the story close enough, but I do not think that is what happened.  I would still argue that having possession of the PRIVATE land and the lake which contains the balls would pretty much cover possessing the balls, maybe not in strictly legal possession terms but functionally(and let me explain).  Seeing as legally, no one else has the legal right to enter the property to physically control or claim them (or to do ANYTHING else for that matter), the owners of the land have EXCLUSIVE LEGAL access  to the lake and would have the first  right to claim and physically control them by default.  That's not law, that's common sense.  If you disagree please explain a scenario where anyone could retrieve the balls without trespassing on the land.  So it is FACT that the owners of the club 1) Have exclusive access to the land surrounding the lake, and the lake itself which physically contain the balls, and 2) Intend to control it AND exclude others form it.  Again, you have proved my point.  It would be another matter if the balls washed out of the lake into a stream where someone would have public access to retrieve them.  But, again, that is NOT the case in this matter.  

Second, I am not sure why you feel a baseball hit in public into a crowd of people is relevant to multiple balls hit into a lake on private property.  Your analogy is simply flawed.  As was the one about the car wash previously.  I was initially going to concede the "water rights" / well analogy, but again it too has a huge hole as well (pardon the pun).  A well drilled on private land to access water access that is located on the private land requires no trespass to obtain it.  It is simply irrelevant to this case.  Instead of trying to come up with an analogy, just look at the facts and admit that it was criminal to 1) enter the property without the owners permission (FACT) and 2) to remove the balls from that private property without permission of the owner.  Your attempts to talk around the facts instead of addressing them directly shows 2 things: 1) you are likely a good attorney (or at least en-rout to being) and 2) that you actually understand that the facts are pretty clear that this was illegal.

The language I cited was directly form the brief of the case you seem to think has precedent so I will repeat for you and break it down into simple English for you:
"Where an actor (When the owner of the club) undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property (signs a contract with a company to retrieve golf balls from a PRIVATE LAKE ON PRIVATE LAND with the intent of retrieving the balls for resale) and the failure to continue the effort is interrupted by the unlawful acts of others (But some jerk with a scuba tank Trespasses and snags them out of the lake) , the actor has a pre-possessory interest in the property (the club owner has a claim to the property). This pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion (THIS CLAIM CONSTITUTES A LEGAL RIGHT OF POSSESSION AND THE SCUBA GUY CAN BE FOUND GUILTY OF THEFT BY TAKING THEM)."  The fact that it is a qualified right is irrelevant as well as no one other than the course owner has a legal right to enter the property, no one can legally physically claim the balls.  No analogies needed.  This is as clear as a bell.  


I'm not sure what you were trying to prove with the statement about incomplete grades in high school.  As grades are not real property, they have no relevance here whatsoever (just another flawed irrelevant analogy taking focus away from the facts).  I never had an I in high school or college, I was smart enough to drop those classes!

I really wish I could let this stuff drop, but I am seriously damaged when it comes to admitting that I might be wrong (ask my wife..), and having the last word, so I apologize to everyone for high-jacking what should have been an amusing thread about some diver taking golf balls.  

[hebron1427]

 hendersnb, on 25 April 2012 - 10:47 AM, said:

This is getting really old... and I honestly don't care that much, but I have a problem letting thing go and I hate feeling like I lost so here goes:

First, I am glad that we finally do agree that the original owner does have claim to their balls.  Lord knows if I could claim all the balls I've lost, I'd be a happy man.  Assuming that each original owner does not show up and claim his property, we can treat this as abandoned property.  



However, the case you cited specifically uses the language you questioned.  Yes, the part of the holding which I cited is a sidebar that is directly relevant to this case and NOT to the situation in the ballpark.  Regardless of the severity of the unlawful act (battery or trespass) that interrupts the claiming of the property, the court is clear that the original actor has a claim to the property.  And in thinking further about the relevance of this case, the court 100% agrees with me.  In the case with the baseball, the individual who subsequently took possession of the ball following the initial scrum, was NOT the person who committed an unlawful act (assaulting the plaintiff), but instead a bystander who picked it up afterward.  It would be a completely different matter if he were the one who assaulted the plaintiff with the intent of taking the ball.  For it to be 100% applicable to "Golf Ball-Gate", as I am now calling it, the divers would have had to drag the balls out of the lake and off the property without taking full possession, be mugged by bystander A before they had a chance to pick them up, and bystander B picks them up and walks off.  Maybe I didn't read the story close enough, but I do not think that is what happened.  I would still argue that having possession of the PRIVATE land and the lake which contains the balls would pretty much cover possessing the balls, maybe not in strictly legal possession terms but functionally(and let me explain).  Seeing as legally, no one else has the legal right to enter the property to physically control or claim them (or to do ANYTHING else for that matter), the owners of the land have EXCLUSIVE LEGAL access  to the lake and would have the first  right to claim and physically control them by default.  That's not law, that's common sense.  If you disagree please explain a scenario where anyone could retrieve the balls without trespassing on the land.  So it is FACT that the owners of the club 1) Have exclusive access to the land surrounding the lake, and the lake itself which physically contain the balls, and 2) Intend to control it AND exclude others form it.  Again, you have proved my point.  It would be another matter if the balls washed out of the lake into a stream where someone would have public access to retrieve them.  But, again, that is NOT the case in this matter.  

Second, I am not sure why you feel a baseball hit in public into a crowd of people is relevant to multiple balls hit into a lake on private property.  Your analogy is simply flawed.  As was the one about the car wash previously.  I was initially going to concede the "water rights" / well analogy, but again it too has a huge hole as well (pardon the pun).  A well drilled on private land to access water access that is located on the private land requires no trespass to obtain it.  It is simply irrelevant to this case.  Instead of trying to come up with an analogy, just look at the facts and admit that it was criminal to 1) enter the property without the owners permission (FACT) and 2) to remove the balls from that private property without permission of the owner.  Your attempts to talk around the facts instead of addressing them directly shows 2 things: 1) you are likely a good attorney (or at least en-rout to being) and 2) that you actually understand that the facts are pretty clear that this was illegal.

The language I cited was directly form the brief of the case you seem to think has precedent so I will repeat for you and break it down into simple English for you:
"Where an actor (When the owner of the club) undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property (signs a contract with a company to retrieve golf balls from a PRIVATE LAKE ON PRIVATE LAND with the intent of retrieving the balls for resale) and the failure to continue the effort is interrupted by the unlawful acts of others (But some jerk with a scuba tank Trespasses and snags them out of the lake) , the actor has a pre-possessory interest in the property (the club owner has a claim to the property). This pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion (THIS CLAIM CONSTITUTES A LEGAL RIGHT OF POSSESSION AND THE SCUBA GUY CAN BE FOUND GUILTY OF THEFT BY TAKING THEM)."  The fact that it is a qualified right is irrelevant as well as no one other than the course owner has a legal right to enter the property, no one can legally physically claim the balls.  No analogies needed.  This is as clear as a bell.  

I'm not sure what you were trying to prove with the statement about incomplete grades in high school.  As grades are not real property, they have no relevance here whatsoever (just another flawed irrelevant analogy taking focus away from the facts).  I never had an I in high school or college, I was smart enough to drop those classes!

I really wish I could let this stuff drop, but I am seriously damaged when it comes to admitting that I might be wrong (ask my wife..), and having the last word, so I apologize to everyone for high-jacking what should have been an amusing thread about some diver taking golf balls.  

This of course is the epitome of threadjacking. maybe we should create our own law discussion thread? the beauty of legal analysis is that there is never a single correct answer. however, having taught property law, i'm pretty sure i know enough about the subject to comment.

Note: most of this argument based around the hypothetical situation that the club has hired someone else to retrieve the balls. clearly, if that's not the case, the club's claim is FAR weaker. but, because it's what we've been arguing, i'll go with it--i still don't believe the club has a claim to ownership.

this time, i'll take your errors in order, and hopefully you can see where you're missing a lot:
Seeing as legally, no one else has the legal right to enter the property  to physically control or claim them (or to do ANYTHING else for that  matter), the owners of the land have EXCLUSIVE LEGAL access  to the lake  and would have the first  right to claim and physically control them by  default.

even if it's a private club, as i've stated previously, trespass to land does not automatically equate to trespass to chattels. it doesn't change your analysis at all that someone was trespassing. this has been analyzed many, many times in the law. there are numerous cases where a landowner has tried to sue a trespasser for things taken from property--an ancient artifact taken from the property, for example. overwhelmingly, the trespasser is awarded ownership because the landowner didn't have possession. i'll grant you that a landowner who is taking steps to recover them is slightly different from an landowner who doesnt know that the artifact is even there, but the holdings are not limited only to this exact scenario. a landowner who doesn't have possession simply is not awarded ownership. "exclusive right to the land absent a trespasser" simply is not the test. even if someone has exclusive right to the land, the land is not the same as the chattel. having exclusive right to the land gets you nothing, except the opportunity to gain possession. until you have possession, you don't own the chattel. that is why trespass to land and trespass to chattels are different torts. owning everything around something doesn't give you possession. it only gives you the opportunity to possess.

If you disagree please explain a scenario where anyone could  retrieve the balls without trespassing on the land.
there ARE people who are not excluded from access to the club property and could retrieve the balls without trespassing--members of the club, or guests invited to the club by members. are you saying that a member is stealing the club's property if he fishes balls out of a lake? surely, this is not the outcome you are trying to promote? yet it would be the outcome we get if we followed your paradigm and if the club has taken steps to possess the balls because of the club has a "pre-possessory interest" in the balls.

Second, I am not sure why you feel a baseball hit in public into a crowd  of people is relevant to multiple balls hit into a lake on private  property.
you seem to misunderstand what is public and what is private. a baseball stadium is private land (assuming it is not municipally owned, which san francisco is not). i.e., the fans in the stadium are licensees of the private property. you can be asked to leave the stadium for disorderly conduct, drinking too much, etc etc (and i know you've seen someone do that). In fact, there is very little land in this country that is truly "public." national parks, city parks, municipally-owned buildings, sidewalks, and streets are about the only thing that are "public." even "if the balls washed out of the lake into a stream where someone would have public access to retrieve them" is not really public if the lake or stream is on private land. the water in the lake or stream may be public, but access to the lake or stream itself may not be.

to prove my point here, if you do not have a ticket to a baseball stadium, you cannot get in. it's just as limited in its access as a golf club. the difference is how difficult it is to get onto the land: for a baseball stadium, you only need a ticket. for a golf club, you need a membership, which comes with its own strings attached. had the bonds ball been hit into the SF bay, then yes, that would be public land. but inside the stadium, it's just as private as the club. so i'm not sure why you feel that a golf course and a private stadium are all that different.

just look at the facts and admit that it was criminal to 1) enter the  property without the owners permission (FACT) and 2) to remove the balls  from that private property without permission of the owner.
1) yes
2) no
it's not a simple "he trespassed so he doesn't get it." as i've stated previously, the trespass is irrelevant. if the landowner does not have possession of hte chattel, that landowner doesn't own the chattel.

"Where  an actor (When the owner of the club) undertakes significant but  incomplete steps to achieve possession of a piece of abandoned personal  property (signs a contract with a company to retrieve golf balls from a  PRIVATE LAKE ON PRIVATE LAND with the intent of retrieving the balls for  resale) and the failure to continue the effort is interrupted by the  unlawful acts of others (But some jerk with a scuba tank Trespasses and  snags them out of the lake) , the actor has a pre-possessory interest in  the property (the club owner has a claim to the property). This  pre-possessory interest constitutes a qualified right to possession  which can support a cause of action for conversion (THIS CLAIM  CONSTITUTES A LEGAL RIGHT OF POSSESSION AND THE SCUBA GUY CAN BE FOUND  GUILTY OF THEFT BY TAKING THEM)."  The fact  that it is a qualified right is irrelevant as well as no one other than  the course owner has a legal right to enter the property, no one can  legally physically claim the balls.  No analogies needed.

PARTICULARLY: (THIS CLAIM  CONSTITUTES A LEGAL RIGHT OF POSSESSION AND THE SCUBA GUY CAN BE FOUND  GUILTY OF THEFT BY TAKING THEM)

this is entirely circular. let me try to illuminate why:
in essence, here's your logic
:
the club took steps to possess the balls; those balls were taken by the scuba diver; the scuba diver is guilty of theft because he took the balls; therefore, the club should be the owner of the balls.

me: ok, so why is the scuba diver guilty of theft?
you: because the club owned the balls

me: but the club didn't have possession?
you: well, they would have if the scuba diver hadn't taken the balls

me: but, the scuba diver got to them first, so why wouldn't he be the first to possess?
you: because the club was taking steps to possess

me: but the club didn't possess?
you: because the scuba diver stole from them

me: but why was the scuba diver's taking the balls classified as theft?
you: because he took the balls from the club

me: but if the club didn't have possession, how could they say that the balls were theirs?
you: they can because they were taking steps to possess

in essence, you can always claim someone is doing the "criminal act of theft by taking" whenever someone has a "prepossessory interest" that gets divested when, in reality, it's not theft by taking because hte prepossessor never had possession. or, in other words, it's only theft if you already own it, and the whole point of this exercise is to establish whether you own it. you can't use an assumption that someone owns it to justify the logic that someone owns it. it's circular.


essentially, what you're hung up on is whether hiring a scuba dive team to retrieve balls from a lake confers possession. it doesn't. other than that, you've conceded pretty much everything else, which i appreciate.

pat yourself on the back: you've done well. a little bit of red herring argument that i don't have time or energy to get into. still, law school would not have been a bad choice for you. it boils down to analysis in view of an understanding of actual cases of how htis has been treated in the past (which, admittedly, you didn't have the benefit of). the water rights thing wasn't irrelevant because, as i've stated, there's no distinction in the law between a person trespassing on land and a person not trespassing on land.

[hendersnb]

 hebron1427, on 25 April 2012 - 01:07 PM, said:

 hendersnb, on 25 April 2012 - 10:47 AM, said:

This is getting really old... and I honestly don't care that much, but I have a problem letting thing go and I hate feeling like I lost so here goes:

First, I am glad that we finally do agree that the original owner does have claim to their balls.  Lord knows if I could claim all the balls I've lost, I'd be a happy man.  Assuming that each original owner does not show up and claim his property, we can treat this as abandoned property.  



However, the case you cited specifically uses the language you questioned.  Yes, the part of the holding which I cited is a sidebar that is directly relevant to this case and NOT to the situation in the ballpark.  Regardless of the severity of the unlawful act (battery or trespass) that interrupts the claiming of the property, the court is clear that the original actor has a claim to the property.  And in thinking further about the relevance of this case, the court 100% agrees with me.  In the case with the baseball, the individual who subsequently took possession of the ball following the initial scrum, was NOT the person who committed an unlawful act (assaulting the plaintiff), but instead a bystander who picked it up afterward.  It would be a completely different matter if he were the one who assaulted the plaintiff with the intent of taking the ball.  For it to be 100% applicable to "Golf Ball-Gate", as I am now calling it, the divers would have had to drag the balls out of the lake and off the property without taking full possession, be mugged by bystander A before they had a chance to pick them up, and bystander B picks them up and walks off.  Maybe I didn't read the story close enough, but I do not think that is what happened.  I would still argue that having possession of the PRIVATE land and the lake which contains the balls would pretty much cover possessing the balls, maybe not in strictly legal possession terms but functionally(and let me explain).  Seeing as legally, no one else has the legal right to enter the property to physically control or claim them (or to do ANYTHING else for that matter), the owners of the land have EXCLUSIVE LEGAL access  to the lake and would have the first  right to claim and physically control them by default.  That's not law, that's common sense.  If you disagree please explain a scenario where anyone could retrieve the balls without trespassing on the land.  So it is FACT that the owners of the club 1) Have exclusive access to the land surrounding the lake, and the lake itself which physically contain the balls, and 2) Intend to control it AND exclude others form it.  Again, you have proved my point.  It would be another matter if the balls washed out of the lake into a stream where someone would have public access to retrieve them.  But, again, that is NOT the case in this matter.  

Second, I am not sure why you feel a baseball hit in public into a crowd of people is relevant to multiple balls hit into a lake on private property.  Your analogy is simply flawed.  As was the one about the car wash previously.  I was initially going to concede the "water rights" / well analogy, but again it too has a huge hole as well (pardon the pun).  A well drilled on private land to access water access that is located on the private land requires no trespass to obtain it.  It is simply irrelevant to this case.  Instead of trying to come up with an analogy, just look at the facts and admit that it was criminal to 1) enter the property without the owners permission (FACT) and 2) to remove the balls from that private property without permission of the owner.  Your attempts to talk around the facts instead of addressing them directly shows 2 things: 1) you are likely a good attorney (or at least en-rout to being) and 2) that you actually understand that the facts are pretty clear that this was illegal.

The language I cited was directly form the brief of the case you seem to think has precedent so I will repeat for you and break it down into simple English for you:
"Where an actor (When the owner of the club) undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property (signs a contract with a company to retrieve golf balls from a PRIVATE LAKE ON PRIVATE LAND with the intent of retrieving the balls for resale) and the failure to continue the effort is interrupted by the unlawful acts of others (But some jerk with a scuba tank Trespasses and snags them out of the lake) , the actor has a pre-possessory interest in the property (the club owner has a claim to the property). This pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion (THIS CLAIM CONSTITUTES A LEGAL RIGHT OF POSSESSION AND THE SCUBA GUY CAN BE FOUND GUILTY OF THEFT BY TAKING THEM)."  The fact that it is a qualified right is irrelevant as well as no one other than the course owner has a legal right to enter the property, no one can legally physically claim the balls.  No analogies needed.  This is as clear as a bell.  

I'm not sure what you were trying to prove with the statement about incomplete grades in high school.  As grades are not real property, they have no relevance here whatsoever (just another flawed irrelevant analogy taking focus away from the facts).  I never had an I in high school or college, I was smart enough to drop those classes!

I really wish I could let this stuff drop, but I am seriously damaged when it comes to admitting that I might be wrong (ask my wife..), and having the last word, so I apologize to everyone for high-jacking what should have been an amusing thread about some diver taking golf balls.  

This of course is the epitome of threadjacking. maybe we should create our own law discussion thread? the beauty of legal analysis is that there is never a single correct answer. however, having taught property law, i'm pretty sure i know enough about the subject to comment.

Note: most of this argument based around the hypothetical situation that the club has hired someone else to retrieve the balls. clearly, if that's not the case, the club's claim is FAR weaker. but, because it's what we've been arguing, i'll go with it--i still don't believe the club has a claim to ownership.

this time, i'll take your errors in order, and hopefully you can see where you're missing a lot:
Seeing as legally, no one else has the legal right to enter the property  to physically control or claim them (or to do ANYTHING else for that  matter), the owners of the land have EXCLUSIVE LEGAL access  to the lake  and would have the first  right to claim and physically control them by  default.

even if it's a private club, as i've stated previously, trespass to land does not automatically equate to trespass to chattels. it doesn't change your analysis at all that someone was trespassing. this has been analyzed many, many times in the law. there are numerous cases where a landowner has tried to sue a trespasser for things taken from property--an ancient artifact taken from the property, for example. overwhelmingly, the trespasser is awarded ownership because the landowner didn't have possession. i'll grant you that a landowner who is taking steps to recover them is slightly different from an landowner who doesnt know that the artifact is even there, but the holdings are not limited only to this exact scenario. a landowner who doesn't have possession simply is not awarded ownership. "exclusive right to the land absent a trespasser" simply is not the test. even if someone has exclusive right to the land, the land is not the same as the chattel. having exclusive right to the land gets you nothing, except the opportunity to gain possession. until you have possession, you don't own the chattel. that is why trespass to land and trespass to chattels are different torts. owning everything around something doesn't give you possession. it only gives you the opportunity to possess.

If you disagree please explain a scenario where anyone could  retrieve the balls without trespassing on the land.
there ARE people who are not excluded from access to the club property and could retrieve the balls without trespassing--members of the club, or guests invited to the club by members. are you saying that a member is stealing the club's property if he fishes balls out of a lake? surely, this is not the outcome you are trying to promote? yet it would be the outcome we get if we followed your paradigm and if the club has taken steps to possess the balls because of the club has a "pre-possessory interest" in the balls.

Second, I am not sure why you feel a baseball hit in public into a crowd  of people is relevant to multiple balls hit into a lake on private  property.
you seem to misunderstand what is public and what is private. a baseball stadium is private land (assuming it is not municipally owned, which san francisco is not). i.e., the fans in the stadium are licensees of the private property. you can be asked to leave the stadium for disorderly conduct, drinking too much, etc etc (and i know you've seen someone do that). In fact, there is very little land in this country that is truly "public." national parks, city parks, municipally-owned buildings, sidewalks, and streets are about the only thing that are "public." even "if the balls washed out of the lake into a stream where someone would have public access to retrieve them" is not really public if the lake or stream is on private land. the water in the lake or stream may be public, but access to the lake or stream itself may not be.

to prove my point here, if you do not have a ticket to a baseball stadium, you cannot get in. it's just as limited in its access as a golf club. the difference is how difficult it is to get onto the land: for a baseball stadium, you only need a ticket. for a golf club, you need a membership, which comes with its own strings attached. had the bonds ball been hit into the SF bay, then yes, that would be public land. but inside the stadium, it's just as private as the club. so i'm not sure why you feel that a golf course and a private stadium are all that different.

just look at the facts and admit that it was criminal to 1) enter the  property without the owners permission (FACT) and 2) to remove the balls  from that private property without permission of the owner.
1) yes
2) no
it's not a simple "he trespassed so he doesn't get it." as i've stated previously, the trespass is irrelevant. if the landowner does not have possession of hte chattel, that landowner doesn't own the chattel.

"Where  an actor (When the owner of the club) undertakes significant but  incomplete steps to achieve possession of a piece of abandoned personal  property (signs a contract with a company to retrieve golf balls from a  PRIVATE LAKE ON PRIVATE LAND with the intent of retrieving the balls for  resale) and the failure to continue the effort is interrupted by the  unlawful acts of others (But some jerk with a scuba tank Trespasses and  snags them out of the lake) , the actor has a pre-possessory interest in  the property (the club owner has a claim to the property). This  pre-possessory interest constitutes a qualified right to possession  which can support a cause of action for conversion (THIS CLAIM  CONSTITUTES A LEGAL RIGHT OF POSSESSION AND THE SCUBA GUY CAN BE FOUND  GUILTY OF THEFT BY TAKING THEM)."  The fact  that it is a qualified right is irrelevant as well as no one other than  the course owner has a legal right to enter the property, no one can  legally physically claim the balls.  No analogies needed.

PARTICULARLY: (THIS CLAIM  CONSTITUTES A LEGAL RIGHT OF POSSESSION AND THE SCUBA GUY CAN BE FOUND  GUILTY OF THEFT BY TAKING THEM)

this is entirely circular. let me try to illuminate why:
in essence, here's your logic
:
the club took steps to possess the balls; those balls were taken by the scuba diver; the scuba diver is guilty of theft because he took the balls; therefore, the club should be the owner of the balls.

me: ok, so why is the scuba diver guilty of theft?
you: because the club owned the balls

me: but the club didn't have possession?
you: well, they would have if the scuba diver hadn't taken the balls

me: but, the scuba diver got to them first, so why wouldn't he be the first to possess?
you: because the club was taking steps to possess

me: but the club didn't possess?
you: because the scuba diver stole from them

me: but why was the scuba diver's taking the balls classified as theft?
you: because he took the balls from the club

me: but if the club didn't have possession, how could they say that the balls were theirs?
you: they can because they were taking steps to possess

in essence, you can always claim someone is doing the "criminal act of theft by taking" whenever someone has a "prepossessory interest" that gets divested when, in reality, it's not theft by taking because hte prepossessor never had possession. or, in other words, it's only theft if you already own it, and the whole point of this exercise is to establish whether you own it. you can't use an assumption that someone owns it to justify the logic that someone owns it. it's circular.


essentially, what you're hung up on is whether hiring a scuba dive team to retrieve balls from a lake confers possession. it doesn't. other than that, you've conceded pretty much everything else, which i appreciate.

pat yourself on the back: you've done well. a little bit of red herring argument that i don't have time or energy to get into. still, law school would not have been a bad choice for you. it boils down to analysis in view of an understanding of actual cases of how htis has been treated in the past (which, admittedly, you didn't have the benefit of). the water rights thing wasn't irrelevant because, as i've stated, there's no distinction in the law between a person trespassing on land and a person not trespassing on land.

Fair enough, I'm not a lawyer, or professor of law, or even all that interested in it, hence the decision not to go.  And I do agree (as I stated in a previous post) that my whole argument is contingent on a hypothetical contract for retrieval and is completely shot if that contract did not exist.  I do not have the benefit of years of experience in law and access to all the cases you clearly do.  All I did was cite the conclusion of the court in the case you yourself cited to counteract your claim, quoted DIRECTLY form the case brief.  Regardless of my or your interpretation of the court's decision, it is stated clearly and thus a legal precedent to reference.  I am certain countless other relevant cases exist that support either of our claims.  

I do not feel in light of the statement I cited that my argument is circular.  You seem to ignore that the court stated that The actor has pre-possessory interest which constitutes a claim of ownership.  Therefore when the scuba diver  takes them, it is not taking possession, it is infringing on the right of the owner to complete the process of gaining full possession.  

I think this would be one of those conversations, if conducted at a bar, would make all of our friends leave and talk about us behind our backs.  I am happy to agree to disagree and will even admit that there is a hint of a possibility of a chance that I might be wrong about this.  However if you still want to keep this going, maybe set a date for the PEOPLES COURT!!!  Thanks for the debate, I actually enjoyed it, and perhaps learned a thing or two.  Mainly that the law seem to lack a huge amount of common sense!  No big surprise there.  This is one of those instances where the rules we learned in Kindergarten would be more civil than the actual legal system if you are indeed correct.  

Where do you teach?

[hebron1427]

 hendersnb, on 25 April 2012 - 01:54 PM, said:

Fair enough, I'm not a lawyer, or professor of law, or even all that interested in it, hence the decision not to go.  And I do agree (as I stated in a previous post) that my whole argument is contingent on a hypothetical contract for retrieval and is completely shot if that contract did not exist.  I do not have the benefit of years of experience in law and access to all the cases you clearly do.  All I did was cite the conclusion of the court in the case you yourself cited to counteract your claim, quoted DIRECTLY form the case brief.  Regardless of my or your interpretation of the court's decision, it is stated clearly and thus a legal precedent to reference.  I am certain countless other relevant cases exist that support either of our claims.  

I do not feel in light of the statement I cited that my argument is circular.  You seem to ignore that the court stated that The actor has pre-possessory interest which constitutes a claim of ownership.  Therefore when the scuba diver  takes them, it is not taking possession, it is infringing on the right of the owner to complete the process of gaining full possession.  

I think this would be one of those conversations, if conducted at a bar, would make all of our friends leave and talk about us behind our backs.  I am happy to agree to disagree and will even admit that there is a hint of a possibility of a chance that I might be wrong about this.  However if you still want to keep this going, maybe set a date for the PEOPLES COURT!!!  Thanks for the debate, I actually enjoyed it, and perhaps learned a thing or two.  Mainly that the law seem to lack a huge amount of common sense!  No big surprise there.  This is one of those instances where the rules we learned in Kindergarten would be more civil than the actual legal system if you are indeed correct.  

Where do you teach?

to quote a very smart man, "only a fool goes to court." to explain why he was smart, last few sentences of your response sum it up. the law must be consistent in every situation, and it is very difficult to come up with a rule that works for all situations regardless of application. sometimes, the results are funny to some. sadly, and i feel elitist saying this (even though i hate elitism more than anything), it makes more sense when you are a lawyer. maybe something about being in this world makes us all understand the language a little more since we all have the same background? i don't know. anyways, i'm in practice now, so my pontificating days are over. now i just write.

Edited by hebron1427, 25 April 2012 - 03:22 PM.

[flyersfan25]

I am surprised they were able to steal that many.  I live pretty close to Aronimink and that's a super nice course (the ATT National is there a lot).

[BENNYSUPREME]

My eyes just glazed over and I forgot where I was.