Professor Eric Freyfogle
Property Spring 2012
n Acre = 43,560 sq feet (10 sq chains)
o 4 rods = 1 chain = 66ft
n In Western states, a person must obtain a usage right separate from the ownership of the land
o To acquire a water right, one must:
1. Divert the water from the river
2. Apply it to a beneficial use
a. Policy: because water is scarce
b. Actual pattern of beneficial use is what you are limited toà regardless of paper rightsà until then, you’re merely preparing it
n Wildlife must be acquired separately
n If you capture an animal, it is yours until it escapes and get backs into its natural habitat
1) First-in-time – the first person to claim it, has property rights to it
a) Pierson v. Post – Pursuit alone not enough; Occupancy is for sure ok; Mortal wounding probably ok; Traps probably ok
i) Post was in pursuit of a fox
ii) Pierson killed the fox and carried it off, aware that the fox was being hunted
iii) General Rule: property of animals ferae naturae is acquired by occupancy only
(1) Occupancy: “The actual corporeal possession of them.”
iv) “[A]ctual bodily seizure is not indispensable to acquire right to, or possession of, wild beasts; but that, on the contrary, the mortal wounding of such beasts, by one not abandoning his pursuit, may, with the utmost propriety, be deemed possession of him; since thereby, the pursuer manifests an unequivocal intention of appropriating the animal to his individual use.”
v) “Also encompassing and securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their natural liberty, and render escape impossible, may justly be deemed to give possession of them to those persons who by their industry and labour have used such means of apprehending them.”
vi) Easy application of a rule clear and certain
(1) Minimizes unnecessary litigation
vii) Dissent: [Counterintuitive] Livingston criticizes majority for not thinking like sportsmen – interruption of the hunt (sporting argument); and foxes need to die (killing argument) = don’t mesh because he claims people will stop hunting, which only works for the sporting argument
b) Leisner v. Wanie – Mortal wounding; Pursuit/intent to capture; Animal basically down = Property Rights
i) Wanie mortally wounded wolf and it was almost in his possession
ii) Leisner came upon it in a hole and killed it
iii) “The instant a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another's intervening and killing it”
iv) Don’t want to discourage hunting
c) Buster – Serious wounding and overnight delay = no ownership
i) Compare to Haslem and the 24 hour seaweed grace period.
d) Dapson v. Daily – No license = no property; Deer not reduced to inevitable capture = also not good
i) P shot deer, unclear as to whether it went down, but galloped away
ii) D shot the deer, carried it away
iii) P wasn’t licensed to hunt and therefore cannot claim the rights of a huntsman
iv) evidence does not establish that the animal “was so wounded by the plaintiff that it was about to be deprived of its natural liberty.”
e) State v. Shaw – Fish in trap = property of trap setter
i) Dude had a boat with a net, fish could get out of net
ii) D took some of the fish from the net
iii) Because escape was practically impossible, fish were owned by owner of net
(1) “To acquire property rights in animals ferae naturae, the pursuer must bring them into his power and control, and so maintain his control as to show that he does not intend to abandon them again to the world at large.”
iv) “The law does not require absolute security against the possibility of escape”
v) Compare to Hickeringill and the performance of a lawful economically beneficial activity / profession
f) Ghen v. Rich – Whale killed, no marks, customary practice = ownership rights
i) P shoots and kills whale with bomb-lance
ii) D is sold whale and tries out the oil
iii) “Although local usages of a particular port ought not to be allowed to set aside the general maritime law, this objection did not apply to a custom which (1) embraced an entire business, and had been concurred in for a (2) long time by everyone engaged in the trade.”
iv) “If the fishermen does all that is possible to do to make the animal his own, that would seem to be sufficient.”
v) “Unless tradition is sustained, this branch of industry must necessarily cease, for no person would engage in it if the fruits of his labor could be appropriated by any chance finder.”
vi) Compare to Marincovich and the decision of the courts to go against custom that supports the industry
g) Taber v. Jenny – Marked = obvious ownership
i) Whale killed and marked
ii) “it became the property of the owners of that ship, and all was done which was then practicable in order to secure it.”
iii) Notice
h) Bartlett v. Budd – Markings fall off = still ownership
i) Killed whale, attached waif, waif came off
ii) Second party found without markings
iii) “But when such possession has become firm and complete, the right of property is clear, and has all the characteristics of property.”
i) Swift v. Gifford – Whale possibly alive; harpoon attached = property rights
i) Whale maybe not dead; but harpoon attached
ii) Court sticks with custom: “iron holds the whale” = reasonable and valid
j) Ophir Silver Mining Co. v. Carpenter
i) D built a ditch to divert water from a river
ii) P later diverted some water from the river
iii) D then expands water usage, claiming that this expansion relates back to the original ditch
iv) “[P]riority of appropriation gives the superior right. When any work is necessary to be done to complete the appropria
the surface thereof but everything within the soil.”
§ Treasure Trove – very few states recognize (AR)
o Money, gold, or silver found concealed in earth or in a house or other private place, but not lying on the ground
o Hidden or concealed so long as to indicate that the owner is probably dead or unknown.
o Awarded to the finder
o Encourages trespassing
§ To mitigate, some courts have stated that trespassers can’t be finders and property goes to land owner
§ If you are invited on to the land, cannot be a finder of something in a private part of their house
§ Goes to employer if employee finds
§ At the moment it is found, you must categorize it, but it can change it’s status (i.e. Franks – at the time of status change, it was in the possession of the hotel owners, so they get to keep it)
Policy Forum
– Incentivize people to be more careful where they put their shit (lost)
– Promote recovery of property for true owner
– Might dissuade individuals from reporting lost items
a) Bridges v. Hawkesworth- Lost, No exception to general rule of finders keepers
i) Plaintiff finds something on floor of D’s shop
ii) Gives it to D, who advertised for it in the paper
iii) Three years later (argue abandonment?), P asked D to give them to him; P refused
iv) D never had property rights: “The notes never were in the custody of the defendant, nor within the protection of his house, before they were found, as they would have been had they been intentionally deposited there.”
(1) Therefore, “The finder of a lost article is entitled to it as against all persons, except the real owner.”
v) Easy application of rule
vi) CA: The true owner is more likely to locater their lost item if the law awards possession to the owner of the place where item was found
b) Haslem v. Lockwood- Shit, enhance value,
i) P put shit (property with marginal value) into heaps
ii) P left for night to get means to pick up shit piles
iii) D took shit piles
iv) Court decides increases value by labor and expense
(1) Seaweed Statute: Gives the party who heaps it upon a public beach twenty-four hours in which to remove it
(2) “If he leaves the property at the place where it was discovered, and does nothing whatsoever to enhance its value or change its nature, his right by occupancy is unquestionably gone.”
