PART 1: FUNDAMENTALS
I. First Possession
A. Acquisition of Property by Discovery
Cases: Johnson
Johnson v. M’Intosh (1823) pg. 3 suing for ejectment
-Rule: Whoever first “possesses” the land, owns it. What is possessing?
(first in time)
-App: Possessing means that you’re exploiting the land, making the most of it, enclosing it, growing crops, and cattle on it, dominating the land etc. The American Indians did not possess it. They were only occupying it. The Europeans, on the other hand, exploited the land. You can acquire possession of land by discovery and by possessing it.
-Policy: it was what was expected; exploitation an profitable use are promoted.
poweràpossessionàpropertyàpower
-Other Notes: All land has been discovered, to this case law not too relevant anymore. Conquest, under international law, is illegal.
B. Acquisition of Property by Capture
Occupation (hunting animals)
Pierson v. Post New York (1805) pg. 17
-Rule: “Actual capture rule” “A property right in an animal ferae naturae can be acquired only by occupancy/possession.” What is occupancy-possession? Occupancy/possession requires actual capture of the wild animal or at least a mortal wounding. Supposed to be a bright line rule
-Rationale: Need for a bright line rule. More so an Economic rationale: More competition among hunters to rid of public nuisances such as foxes by rewarding capture.
-court’s rule: pursuit alone does not give property rights, but this goes against the custom of fox hunters in New York
-Dissent says should have followed custom of the hunters. Not really bright line.
-hypo: if Post were hunting on his land: rationale soli (reason from the soil), on his soil, then it is his property
-hypo: fox hunting business together: not Post’s property
-In some cases, mortally wounding/depriving of liberty a wild animal could possibly maybe be enough.
Ghen v. Rich Massachusetts (1881) pg. 23
-whalers; custom; action for damages (libel); trade (as opposed to Pierson);
-custom is enforced here but not in Pierson; economic rationale again
-Rule: The underlying rule being applied seems to be very similar to that applied in Pierson: Property is not acquired in animals ferae naturae until “firm possession” has been established. (Firm Possession: Ghen did everything anyone could think of to capture the whale.)
-Policy: maintaining trade; fairness; small exception to “actual capture”
Keeble v. Hickeringill England per se (1707) pg. 27
-duck decoy pond; action for damages for “damnifying me in my vivary”
-Rule: Malicious interference with the use of one’s property for
ources**caves, oil, water; property to whomever finds or captures first in time
“Capture Doctrine”àreasonable use doctrine
What used to be the rule for caves? THEN: “capture”/discovered, then own entire even if under someone else’s property; NOW: constructive (pretend) possession meaning owner of a piece of real estate owns everything below the ground.
–Minerals such as Oil and Gas: CL: “capture”; STATUTORY (now): There is a limit on the number of wells/digs. What can be taken is that for “reasonable use.” (scarce resource)
Water: Rules depend on what kind of water is at issue (3 KINDS). Eastern states with lots of water tend to follow English rules. Western states with scarce water tend to have their own ruels. (not tested on water in this class)
-Percolating/ground water:
Eastern: “capture”: Take as much as you want. There’s plenty.
Western: reasonable use: But landowner typically can still use all s/he needs for own purposes. Just can’t divert water to noncontiguous pieces of land if other owners in water basin will be harmed.
