Property I Outline

Prof. Jean Zorn – Property Law – Fall 2012 Semester

M 8.27.2012 – Class 1

Casebook and any assignments from this is required and will be on the exam. Understanding property law is more of a study guide that has the rules and lays out some of the cases, so this is not required but very helpful.

Grades: everything but the final can be redone. Rewrites are OK on the midterm. There are 5 quizzes and you can do 2 rewrites, so the 5 best will be counted.

Introduction: as a general rule no one owns wild animals – Ferea Naturae: in their natural habitat. Property is obtained only through, actual capture which means only through physical possession. This rule does not apply to domitae naturae.

Pierson v Post

Post was chasing a fox and another person, Pierson saw this and killed the fox himself and took the fox. Post Sued Pierson and The trial court ruled in favor the plaintiff/ Post. It went to appeal and both parties agreed that wild animals are obtained through occupancy only. The Issue in this case was what amounts to occupancy? Sued in trover means he sued for the value of the fox and not for the fox itself that was dead for awhile.

· Pierson argued for the actual capture standard constituted possession.

· While Post argued for the probable capture argument, that he was likely going to capture this fox so it was in his possession.

Majority: The appeals court ruled in favor of Pierson and the actual capture standard. The majority opinion (Tompkins) used ancient treatises to come to this conclusion because it was never discussed in court. He said that the fox was Pierson’s property because he killed it and it was in his possession so it became his property. A lesser extent was the public policy reasons behind this ruling that the actual capture standard will minimize quarrels between hunters as there will be certainty in property rights.

Dissent Livingston: criticized the majority for applying ancient rules to the modern times.. in favor of the reasonable prospect standard of taking the fox AKA the probable capture standard.

The both Agree (Thomkins and Livingston) disputes over who owns wild animals. The general rule is that if you capture wild animals than it is yours.

Governing Rule that both sides agree: The General Rules

· …. A fox is an animal ferae naturae (Wild Animals)… property in such (Wild) animals is acquired by occupancy (possession) alone.

· … If two persons claim ownership, it goes to the first of them that acquired occupancy.

The Issue: they don’t agree on what does this rule mean how is it interpreted and how do we apply it? In particular is the word occupancy? Possession? How do you possess? How do you become first?

The Majority Definition – Pierson shot the fox and the majority agreed with Pierson. The majority define Possession/ Occupancy by:

· Provides 2 definitions

o Actual Corporal Possession

o Hunter Keeps pursuing a mortally wounded animal

· Sources :

o Ancient Writers, Roman, European, English Treatises

o The English common Law but none are applicable to this case

o NY Statutes but none are applicable to this case

Livingston’s/ Dissent’s definition: continued pursuit together with a reasonable prospect of taking the fox. Probable capture standard.

· … “property in animals ferae naturae may be acquired without bodily touch or manucaption [actual possession], provided the pursuer be within reach, or having a reasonable prospect (which certainly existed here) of taking, what he has thus discovered an intention of converting to his own use.”

· Sources

o From treatise writers, too – but note how he phrases that as a choice and not as a requirement

o AND also form local custom – times change and men and the law change with them…

The Modern rule

· Element 1: an intent to possess

· Element 2: actual or constructive possession (but it goes only so far as the majority went)

o Constructive: as good as having control, maybe will have control

· Often expresses as: first in time, first in right

Uncovering the Wellsprings/ Exploring the opinions.

· Reasons for the Majority Rule: more urban minded because theres a brightline rule. Capitalism/ cut throat, order and certainty

· Reasons for the rule the dissent prefers: more suburban minded

· Why do the Majority and Dissent Differ?

What is Property

¡ What are this court’s assumptions about property? About how people come to own property? About the relations that ought to exist between people and animals.

¡ What social/political/economic aims are served by these assumptions?

These two justices argued over who possessed the fox. Nobody suggested in the case mentioned that maybe that isn’t the correct issue at hand. What are some of the assumptions in this case. One assumption is that it was noone’s property before hand and that.. What if neither of them gained ownership of the fox? Beyond foxes, it is the job of the government to protect peoples rights.

Where did the 2 justices find their sources? Thomkins looked at Roman/ latin Texts and sources. Livingstone went with one o the treatise writing? He got the reasonable prospect rule from the customs of hunters … custom and uses was used.. but keep in mind that this is the Dissent.

Question: What if instead of this rule that no one can ever own a wild animal. What kind of society would that create? How different would it be today?

Public Policy behind the capture rule because our society views wild animals as dangerous and worthless so we encourage the killing and capture of these animals. In order to successfully carry this out is consistent with the holding of the capture rule and killing the animal. It wouldn’t be enough to merely chase the animal without killing it because than people won’t have an incentive to spend time chasing animals without killing them.