I. Personal Property
A. Wild Animals
Property in wild animals only exists in occupancy. What matters for establishing occupancy is not merely taking physical possession of a wild animal, but rather, bringing the animal under control/killing it. Bringing the animal under control/killing it freezes the property rights. All the criteria for possession look to the actions and intentions of the parties at the time that the animal is being deprived of its natural liberties.
According to Blackstone, an animal which regains its liberty is not owned by anyone, unless there is animum revertendi (an animal trained to return to its master), in which case they remain the property of their owner unless they leave without his knowledge or stay away for a long time. The right of property in a tamed wild animal is defeasible, since the owner may lose it should the animal run away.
The plaintiff must show the validity of his own title. He cannot rely upon the (in)validity of the defendant’s title.
According to Dapson, ownership of an animal seems to require both a valid license and occupancy.
If the case rests upon custom, it does not need common-law support. But note that the case of the “first iron” shows that custom and common-law can play well together. The closer common-law is to custom, the easier it is for courts to enforce.
How do you establish the existence of a custom? The law has established a number of tests:
1) It must be widespread within the relevant community.
2) It has to have existed for a long time. The traditional test is, “time out of mind” i.e. as long as anyone can remember.
3) It must be uninterrupted.
4) It must be reasonable.
PIERSON v POST (1)
FACTS: Post was hunting a fox on land that belonged to nobody. Pierson killed and carried off the fox to keep Post from getting it.
PROCEDURAL POSTURE: The plaintiff (Post) won in trial court, and the defendant appealed.
ISSUE(S): Who owned the fox?
RULE(S): Ordinarily occupancy is the rule for determining who owns wild animals. Furthermore, according to ancient law, pursuit (and even wounding) an animal vest no property rights in the hunter. Only control of an animal (either trapping it or mortally wounding it so that it cannot escape) establish ownership.
HOLDING: For the defendant. The earlier verdict was reversed.
REASONING: According to the ancient principles, Post had not done enough to claim ownership of the fox.
DISSENT: Livingston said that the Barbeyrac rule (which states that hunters must have a reasonably good chance of catching an animal in order to claim ownership, “within reach or reasonable prospect”) is the most rational. It rewards hunters for destroying dangerous and delicious animals.
BUSTER v NEWKIRK (6)
FACTS: Newkirk was hunting a deer. He wounded it, but it ran six miles before being killed by Buster. Buster was willing to share the venison, but Newkirk sued for the skin.
PROCEDURAL POSTURE: The first court found for the plaintiff (Newkirk). The defendant then appealed.
ISSUE(S): Who owned the deer?
RULE(S): Pierson v Post.
HOLDING: For the defendan
t was possible (albeit unlikely) for fish to swim out of the nets, be freed from the nets by storms, or escape over the top of the nets.
PROCEDURAL POSTURE: Defendants were indicted in Lake County, Ohio on the charge of grand larceny, and tried before a Court of Common Pleas (which had original jurisdiction). Thomas made a motion to arrest the testimony the jury had heard. The court found him not guilty on directions from the trial judge, and the state excepted to a higher court.
ISSUE(S) In order to establish occupancy, is it necessary that a wild animal be completely under the control of the would-be owner, so that there is no possibility of escape?
RULE(S): According to the legal commentaries of Russel and Bishop, fish secured in nets were adequately secured.
HOLDING: The exception was sustained. The Court held that the slight imperfection of the nets did not negate Grow and Hough’s occupancy rights.
REASONING: The Court reasoned that under ordinary circumstances, few of the fish would have escaped. Since the owners of the nets had captured the fish, they had acquired a legal property right.
Is this contrary to Pierson? (If fish returned to natural liberty, property would be lost. That possibility exists here, however remote)
