Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. That pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion.
Popov and Hayashi were spectators at a baseball game in San Francisco. A ball was hit by baseball start Barry Bonds in their direction. Initially, Popov caught the ball but due to crowding by the people surrounding him, he somehow lost balance and lost grip of the ball. Hayashi picked up the ball that had fallen and kept it for himself. Popov tried to recover the ball from Hayashi and this resulted in a struggle over who the rightful owner was. Popov filed an action for conversion.
Can an action for conversion proceed where the plaintiff has failed to establish complete possession or title?
An action for conversion may be brought where the plaintiff has title, possession or the right to possession. Recognition of a legally protected pre-possessory interest, vests Mr. Popov with a qualified right to possession and enables him to advance a legitimate claim to the baseball based on a conversion theory. Moreover it addresses the harm done by the unlawful actions of the crowd. Mr. Popov has a pre possessory right to ball even though Mr. Hayashi ended up with the actual item. This means that both men had a right to the ball, and neither claim was stronger than the other. Therefore, the court ruled that the ball be sold and the proceeds divided between the men.