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





*** Courts make rules depending on the species, and sometimes depending on the area as well.

Pierson v. Post (1805) – must (I) maintain pursuit, (II) mortally wound, and (III) make the physical taking almost inevitable

Liesner v. Wanie (1914) – the instant a wild animal is brought under the control of someone so ownership/possession is inevitable, another cannot intervene and take it as his own by killing it

Dapson v Daly – Dapson shot deer, but it kept running along and Daly killed it and carried it away. Dapson was not licensed to hunt.


· No property interests on animal will be created by pursuit alone, even if there is wounding; Plaintiff must reduce animal to occupation (actual possession)

· If unlicensed, hunting out of season, in violation of game laws, or if animal is simply not subject to capture under state game laws, then hunter (Plaintiff) not entitled to the rights of a huntsman

Buster v Newkirk (1822) – 6 mile wounded deer

RULE: No property interest on deer because wounding not mortal and pursuit abandoned overnight. Deer was not deprived of natural liberty.

State v. Shaw (1902) – fishermen had 730 lbs. of fish in nets; ruled in their possession because absolute security against the possibility of escape is not required. It is enough that he has confined the animal within his own private enclosure where they are subjected to his use, and that he maintains reasonable precautions to prevent escape. While fish could conceivably escape, it was practically impossible.

Whaling cases:

· Ghen v. Rich – Rule: When a whale is taken captive and anchored, with marks on it, it belongs to those captors even if others find it still anchored. Trade usage doesn’t require Pierson rule of pursuit.

Protection during capture:

· Keeble v. Hickeringill (1701) – def acted w/malice when he interrupted ¶ hunting on decoy pond; for ¶; torts case that protects against tortious interference of a business activity (not aimed at ownership of fowl like Pierson)

o Where a violent of malicious act is done to a man’s occupation, profession, or way of getting a livelihood, there an action lies in all cases. But if a man causes damaged by using the same employment (as if D had set up another pond next to P’s but in his own land), no action would lie because he had as much liberty to make and use a decoy as the P.

Private rights to use nature:

· State v Stasso (1977) – American Indian killing a deer out of season on open and unclaimed land

o RULE: A land remains “open and unclaimed” as long as it hasn’t passed into private hands. A national forest isn’t considered passed into private hands.


· McKeen v US Forest Service (2010) – case about the power of federal government to curtail rights of permits to graze animals on federal owned land

o The duration of these use rights is 10 years with rights of renewal, which requires that you be in compliance with the lease and that the federal government doesn’t plan to divert the purpose of the land.

Marincovich v Tarabochia (1990) – Fishing rights in drift; held that P does not possess a basic legal right to exclude others from fishing the cleared drifts.


Appropriated use of water is not analogous to the recognition of drift rights for fishing (Prior appropriation/Ophir Silver Mining).

This is simply a first in time argument, which they assume should give them a property right in this area. This is more radical than a prescriptive easement. The court is not seeking to make a radical change to the law of prior appropriation.

Having a permit by the Dept of Fisheries for snag removal does not imply a permit for fishing in areas cleared by snags.

Navigable waters are open to public fishing, and no person can claim exclusive rights in them, no matter how long the use.

Anti-monopoly reasoning aligned with the economic liberalism which reflected the notion, that is, that the law should maximize economic opportunities by undercutting attempts to gain monopoly control over resources.


***Very little riparian litigation because it’s expensive and complex

Riparian rights = water rights that attach to land

· Don’t really have these in the West; there water rights are allocated separately

Use rights = individual water users gain these; limits as to how to use water and where


· Labor scarcity and weather are reasons that may allow interruptions in the work because they are outside of D’s control. Sickness and lack of money are personal issues that can’t be used as excuses.

Ophir Silver Mining Co. v. Carpenter – held ¶ gets the rights because it was an unlawful diversion of the water; to get rights to water must:

· Must physically divert the water from the river

o Relation back doctrine applies

· Apply it to a beneficial use

· Today you will also need a permit

Stratton v. Mt. Hermon Boys’ School – for ¶ Stratton; school diverted water off the tract and it affected flow of water to ¶‘s land;


1. On the tract and on watershed: you can make reasonable use

2. Off the tract and outside the watershed: cannot cause harm to downstream riparian’s present or anticipated use. Diversion alone, without damages, does not warrant the imposition of even nominal damages.

3. Reasonable use of Restatement:

· Purpose of use (Domestic Use is highest priority)

· Suitability of the use to the watercourse

· Social value of the use

· Extent and amount of the harm it causes

· Practicality of avoiding the harm by adjusting the use or method of use of one proprietor or the other

· Practicality of adjusting the quantity of water used by each proprietor

· Protection of existing values of water uses, land, investments and enterprises and

· Justice of requiring the user causing harm to bear the loss

· First-in-time can be a factor, but not dispositive not in Restatement

4. Natural flow Rule

a. Can use water only for domestic purposes, all other uses “artificial” and can only be used if it causes no alteration to the water’s natural flow

i. CA: Doesn’t allow intensive water use (industrialization)

State Ex Rel. Cary v Cochran (1940) – Officers of the state prevent water from flowing downstream to senior appropriators because they think that it will evaporate by the time it gets there, thus allowing junior users upstream to use more of it.

RULE: The doctrine of reasonable use does not extend so far as to authorize the administrator of the waters of the stream to refrain from delivering a suable quantity of water to a senior appropriator because it might appear to him that excessive losses would result.

Delivery of a usable quantity of water can still be made, although the losses suffered in so doing are great

Upstream appropriators knew about the rights of the lower stream appropriators when they applied for a priority and downstream appropriators knew that other appropriators would obtain inferior rights above them that would have to be recognized.

Maddocks v Giles – D pumps out water from land adjacent to D, who was thinking of putting the water underneath his land to a future use.


1. Absolute dominion rule

a. Minority rule

b. “Groundwater is the absolute property of the owner of the land, just like the rocks and soil that compose it”

c. Have to use it on the overlying tract! Can’t use elsewhere if it would cause harm to another groundwater pumper who is using it on the overlying tract

2. Reasonable use rule

a. Majority rule

b. Doesn’t look at economic effici

ing, swimming, boating

o Public can use the bed of the river if it is incidental to another lawful activity

o Trapping trespasses because trap needs to be attached to the bed or bank.


thread of the stream = “deepest grove or trench in the bed of a river channel, the last part of the bed to run dry” (p. 153)

avulsion = “sudden and perceptible loss of or addition to land by the action of water, or a sudden change in the bed or course of a stream” (p. 153)

· has no effect on the boundary

· boundary remains at the center of the old channel

accretion/reliction = process of gradual and imperceptible addition/removal of solid material which changes the shoreline

· boundary follows the channel if accretion occurs

· boundary at the center of the channel

Babel v. Schmidt (2009) – Schmidt had burden of proving change occurred by avulsion; failed to meet burden, so boundary would be at the center of the channel


surface water = “water from rains, springs, or melting snows which lies or flows on the surface of the earth but does not form part of a well defined body of water or a natural watercourse” (p. 206)

GENERAL RULE: Nearly all states are prior appropriation

Rules for surface water disputes:

1. common-enemy doctrine = surface water was a common enemy, so a person could do whatever he wanted to get rid of it without having to deal with the consequences to others

2. civil law rule / natural flow = owner of the lower land must accept the surface water that naturally drains onto his land but the upper owner may do nothing to increase the flow

3. rule of reasonable use = property owner’s liability turns on a determination of the reasonableness of his actions

a. Is there reasonable necessity for such drainage

b. Has reasonable care been taken to avoid unnecessary injury to the land receiving the water?

c. Does the benefit accruing to the land drained reasonably outweigh the resulting harm?

d. When practicable, is the diversion accomplished by reasonably improving the normal and natural system of drainage, or is such a procedure is not practicable, has a reasonable and feasible artificial system been installed?

Butler v. Bruno (1975) – Bruno deflected surface water onto Butler’s property; uses “reasonable use rule” to determine if Bruno is liable


*Mineral rights holder is dominant to surface owner

Hunt Oil Co. v. Kerbaugh (1979) – The owner of the mineral rights can reasonably enter, occupy, remove the minerals


1. The mineral lessee’s rights are dominant to the extent that the lessee needs to use the surface for mining purpose, at least so long as the lessee’s use of the surface is reasonably necessary.

a. Reasonably necessary is determined by the custom of the industry.

i. Decision of FACT (jury decides), rather than decision of LAW (judge)

1. Some courts have treated this as an issue of law to be found by the court with the aim to bring clarity or to keep the jury from siding with the local owner