Property Outline
NEVER FORGET: YOU CAN’T SELL/TRANSFER WHAT YOU DON’T OWN!
[i.e. If you have the right to possession, you can only transfer the right to possession, you can’t transfer ownership!]
(A) Possession – it’s nine-tenths of the law!
I. Wild Animals
a) Pierson v. Post – Post and his hounds hunt a fox all day (through un-owned land), and, in the middle of Post’s pursuit, Pierson steps in at the last minute and deliberately kills the fox for himself, knowing Post was in pursuit! T/C held that Post had an interest in the fox – App ct. reversed saying that mere pursuit gave Post no prop rts.
– Occupancy – actual possession, giving a property right. Will vary based on circumstances. This was the traditional rule for creating a property interest in a creature ferae naturae. Pursuit alone gives no legal right to a wild animal. Must have possession of it.
– However, court modifies the RULE: occupancy of a wild animal may be through the mortal wounding, with continued pursuit, which unequivocally reveals the intent to appropriate the animal to one’s individual use.
– Intent – key to occupancy. The wounding or capturing of the fox would signify intent.
– Conversion – civil term for theft. If Post’s pursuit alone was enough to give him a property interest in the fox, Pierson’s actions would be constituted conversion.
– The fox, as a wild animal, is a legal determination, not a fact.
– Rules:
– (1) Law of Capture: grants property rights to the first person to occupy the wild animal. *Foxes are wild animals and property in such animals is acquired only by occupancy.
– (2) What is occupancy? Puffendorf and Barbeyrae define occupancy to be actual corporal possession, though P allows that mortal wounding with continued pursuit is enough to give a property right.
– (3) Certain exceptions to actual corporal possession include: (a) mortal wounding w/ continued pursuit manifesting an intention of appropriating the animal, (b) encompassing and securing with nets and toils or depriving of liberty, and (c) wounding so as to deprive them of their natural liberty.
II. Oil and Gas
a) Elliff v. Texon Drilling Co. – Both parties had adjoining property over a common pool/reservoir of gas. Texon’s negligent drilling cratered the land, released all of the gas, and damaged Elliff’s property. P sues to recover in damages. P wins in t/c, overturned based on absolute law of capture, then reversed on final appeal.
– Ct says that the LA/fox rule which is the pure law of capture (no prop rts attach until captured) does not apply to migratory stuff like oil and gas. ÞThus, the type of prop rts that attach depend on what the thing is.
– Capture = occupancy. Original rule of capture (absolute capture) dates to 1923 in TX – owner of a well owns all of the oil or gas which he produces on his land, though some of the oil or gas may have migrated from adjoining lands. Restated, landowner has absolute title to the oil and gas in place beneath his/her land, subject only to the rule of capture (anyone else with the legal right to capture may do so, i.e. neighbor who owns adjoining land above the reservoir has correlative rights in the gas).
– Absolute capture leads to waste because there is no incentive to produce oil or gas in a conservative manner – the only incentive is to capture as much as possible as quickly as possible.
– Court creates an exception – capture is not to b
off their property through pipes and drainage systems that may cause flooding or other water damage to neighboring property. Damage may also occur b/c development of property naturally changes drainage patterns may cause increased runoff of surface water even if no drainage system is installed. Lower prop owners object to intentional or unintentional flooding of their property by development elsewhere.
– Three rules for Surface Water disputes:
1. Common enemy rule (no liability rule)– treats all surface water as a nuisance and gives you the right to expel it however you want, even if it negatively effects your neighbor. You may even flood or otherwise damage your neighbor’s land, and he/she has no legal remedy. [Allows prop owners absolute freedom to develop their property w/o liability for any resulting damage to neighbors caused by increased runoff of surface water.]
2. Reasonableness test (MAJ)– this rule requires the decision maker to determine in specific cases whether the Δ’s conduct caused unreasonable interference w/ the neighbor’s use of their land. This determination involves balancing the social benefit derived from the development of the Δ’s property, the availability of a cost-effective means to avoid or mitigate the harm, and the gravity of the harm to the Π’s property; most states have adopted this middle ground. Liability if Δ was unrsb.
