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Property I
University of Illinois School of Law
Freyfogle, Eric T.

1. Wildlife Law
A. Types of personal property actions
i. Trespass (chattels)–Money damages. Ex. Car stolen, returned after a month. Distinguish from trespass to land.
->Trespass on the case–not in physical possession
B. Replevin–Property recovery
C. Trover and conversion–allowed to get full value of the property. If you get full value, the other party does get property rights.
B. Pierson v. Post (67): Depending on what public policy rationale you adopt, rules differ:
i. Majority–Tompkins believes property goes to captor. Promote peace and order. And that it’s more clear who has property by means of who actually has the possession in his hands. Mere pursuit is insufficient, needs capture or at least moral wounding.
ii. Dissent–Livingston believes hot pursuit does give property rights, if you have reasonable chance to catching and have intention to catch and use.
->Harder to apply. More messy and more variables/gray area.
->Policy reasons that it’s unfair simply as hunting norms for one guy to steal another’s kill. Hunters would agree that Post should have the fox by way of fairness.

Tradeoff between two sides. Note that Tompkins is clear/easy and fewer litigation, but that Livingston’s may be more fair but cause more litigation and gray area.
C. Application of Pierson v. Post rule
i. Liesner v. Wanie
1. Wild Animal mortally wounded.
2. No occupancy, but decided belongs to the pursuer who wounded
3. What does mortal wounding mean? What about wounds that will cause death a longer time from now?
ii. State v. Shaw
1. Fishing case. Shaw lifted nets that belonged to someone else. Fish could have gotten out of nets by swimming out the way they came, but they usually don’t.
2. Trial court summary judgment for defendants because fish had some possibility of escape.
a. Aren’t fish captured when in net?
3. This case sort of introduces a new rule–If you capture wild animal and keep into captivity, and it escapes back to wild without you in hot pursuit, you’ve lost your property interest.

C. Ghen v. Rich
i. Whaling case. During these times, whalers killed whales with harpoon and then left to wait for whale to surface up dead. Usually, someone else would look at emblem on harpoon and then return whale to company that presumably killed them.
ii. Ghen killed whale. Ellis instead of following custom auctioned off to Rich.
iii. When whale is killed and anchored with marks, it goes to the killer of the whale.
iv. Custom is not law. However, if custom is consistent through the entire trade, perhaps may be a good idea to take it up as law.
v. Stolen property can be claimed at all times, even if bought by someone else who had no clue. E.g. stolen artworks from WWII

D. Gillet v. Mason
i. Mason marks tree with beehive with initials on Gillet father’s property (recently deceased). Gillet cuts down tree and takes it away later.

B. Issue whether Mason’s marking stakes a claim to the bees/honey.

3. Bees which swarm upon a tree are not private property until hived. He who first encloses them in a hive becomes proprietor.
->If its a case of hived, then it seems that they are indeed already hived.

4. This alleged capture took place on privately-owned land. Does Mason even have a right to hive them?

5. Did Mason lose b/c he didn’t capture the bees, or did he lose because he couldn’t go on other’s property in trespass, or the honey is part of the tree?
1. No capture
2. Belonged to landowner
i. Belonged to landowner b/c only landowner can cut down the tree
ii. Bees/honey are part of the land/tree already

6. Rule that finally emerged is that animal goes to landowner unless violation of gaming law (in where it’ll go to the state). This favors landowners a lot.

D. Continued issues in animal rights
Difference in animal laws for different species.

Animals on landowner property belong to landowner? Why so?

Today, animal on land belongs to landowner is used as a deterrant for trespass.

E. Animal Cruelty
1. Bilda v. McLeod
a. Bilida rescued a raccoon. Kept it in her house without permit. Police came and saw raccoon. Next time came without warrant and seized it. Tested for rabies and killed.
b. You cannot have property interest in something that it is illegal to own, “per se contraband.” As such, it wasn’t unlawful for officers to seize it.
c. Is this inconsistent with previous cases? In old times, there would have been no question that Bilida owned Mia through her rescue. But now there is a specific law a permit is required.
2. Boushehry v. State
a. Cruelty to animals at main issue on A person who intentionally or knowingly tortures, mutilates, or beats verterbare resulting in serious injury or death.

B. Argument that slitting throats is accepted form of ending suffering. However courts say that since the injury that was caused was unlawful by the two themselves, the cannot use the ‘end suffering’ as a defense.

c. Note the two portions of the statute. The first may be to protect the animal’s rights in general and not even allow the owner to treat their animals that way. The second is meant to protect property rights of the animal owners as in it disallows others from killing it without consent.

d. Why is there an exception to beating/torturing but not killing? Human temperment gives to suggest that torture is a barbaric practice in general and utilitarian argument that while death of animals may have uses to the general public, the torture has very little.

e. What if it was lawful to shoot the geese? Ending suffering would be a defense to mutilation, and then he would be allowed to use it since he didn’t unlawfully cause the suffering in the first place.

f. How does this coincide with hunting laws? This case hinges basically on the fact that the geese weren’t in season, and that if they were he would’ve been allowed to use the ending of suffering as defense.

a. Landowners are not responsible for wild animals on their land that hurts others. Rationale is that we don’t want to create too much incentive to hunt these animals down.

c. Keeble v. Huckeringill

a. Keeble owned a decoy pond to lure ducks and waterfowl. Huckeringill one day decides to scare them off with a rifle.

b. Did Keeble have property righst to the birds in his decoy pond even before enclosing them?
->Court says no because he has not had property et

c. Policy to favor constructive competition rather than destructive competition. Hypos of two rival schools luring students and it is not allowed to try to scare students by standing outside school.

d. Action for trespass of Huckeringill onto

g Union in Marinkovich made own system of drift rights, not recognized by gov’t. With ruling, essentially messed up entire Snag Union system.

How involved should courts be in clarifying these laws? Or should they simply leave it up to the legislature?

Vast majority of wildlife cases have involved fisheries.

When a state enters a union, they got all land beneath navigable waterways (both in fact and under tides). Anything under tidal influence is also part of state. Subject to public trust duties.
-State does have ability to take this land and turn over to private parties

Spanish land grant->US gained area from Spain and MS entered Union->person with land grant and proves he has valid title under Spanish law and gets patent- from US gov’t->
-You cannot patent something that you didn’t own to begin with

ii. Mining Claims
Marketability test is a way to get greater precision and objectiveness in order to define valuable. Used to have “reasonable-man” test to see if a reasonable man will stay there and mine the land
->Why does it matter? Because minerals that are not valuable now might become valuable later.
1. Discovery
2. Valuable mineral deposits
3. Locate and file

Unpatented mining claim–federally owned land but you have use right to mine and “associated activities.” Last forever as long as you keep mining.

Patented–You will be owner of land. All privileges of land. You don’t have to do mining anymore at all.

Benefit to public if people go out and mine. Allow people to mine on public lands and build their houses next to it for convenience.
Evolution: Must be valuable->Definition of valuable (prudent-man would make the effort)->

Hicks v. Bell
Statutes recognizes the validity of local custom to mining claims. However appellants claim that the land is public land of US, and that the statute of the state are invalid.
-The Fed. Govt’ actually does own this land in CA (during gold rush)

1827 act declares that all mines of gold and silver discovered is property of the people of the state. Thus, the US only acts as a private proprietor. Since states are sovereign, and since gold and silver are her property, the state has right to authorize them to others and make laws as to their regulations
Thus, state laws that allows local mining custom to dictate property of mining claims wins out.

C. Homesteaders
1. Stewart v. Penny
Stewart applied for homestand land in Nevada, 160 acres eventually came down to 120 acres. Have to submit evidence of cultivation. Land examiners said he didn’t get 1/8th cultivated (15 acres) nor developed water supply.

Question of Adequate Water