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


Acquiring Property

First in Time (page 2)

Wild Animals

1. Pierson v. Post—Acquiring rights in unowned wild animals

· Facts: Post was hunting a fox with dogs and Pierson came in and shot the fox and took it

· Holding (Majority- Tompkins): Court holds that Pierson owns the fox; Post has no property rights to the fox at the time of capture by Pierson.

· Rule: Post did not have a viable claim to property rights over the fox until he had killed the fox and taken it into his possession; when Pierson killed the fox and took possession it was still unowned wild property.

· Policy Rationale: The policy rationale is that there will be endless litigation is people are able to claim property rights over animals they simply see, or intend to hunt. Having a rule where you have to kill and then take possession of the animal is much cleaner and easier to administer

· Dissent (Livingston):

– Post should have had ownership rights over the fox because he had a reasonable prospect of taking the fox and he also had the intention to continue the hunt and capture the animal.

– Livingston also believes that sportsmen should mediate such disputes, instead of the courts, because the sportsmen know what is going on with hunting more so than the courts

– The policy rationale for Livingston’s argument is that we want to encourage people to hunt foxes, as they are nuisance animals, but if you cannot gain property rights in the fox until you kill it, then there is a lack of incentive to invest in the capture of the fox

Mortal Wounding Exception

2. Leisner v. Wanie—Mortal wounding as an alternative to actual occupancy (action in replevin)

· Facts: Plaintiff mortally wounded the wolf and had so followed up their attack on the animal as to substantially have it in their possession. They had it where and in such condition and circumstances that escape was improbable, if not possible. Then the defendant came upon the scene and interfered by delivering a shot which finally ended the animal’s life. He took the body as his property and retained it to the damage of plaintiffs.

· Holding: The court held that the person who mortally wounded the wolf had property rights

· Rule:

– If the escape of an animal is unlikely, and there is persistent pursuit, then you have rights to the animal.

– Vigorous pursuit is an indication of the party’s intention to keep up the pursuit

– 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.

3. Dapson v. Daly—not enough pursuit and license

· Facts: There was a dispute over who actually killed a deer that was shot at by both individuals; one shot it first, and then the second person shot it later and probably killed it.

· Holding: The court held that the original shooter did not have possessory rights over the deer.

· Reasoning:

– The pursuit was not sufficient; he stopped to put away his gun.

– First shooter did not have a license, and in order to have a legal right to a hunted animal, you need to have a license (when the legal regime is set up such that licenses are required for hunting).

Animal Trapping

4. State v. Shaw—possession does not need absolute constraint

· Facts: This case was a dispute over fish in a net that were taken by someone else. The fish has already been caught. The fisherman just caught them and left them there. The issue is whether he lost ownership when he put them in a place where the fish could just go away.

· Holding: The court held that the fish were already owned by the person who constructed the fencing when Shaw came and took the fish.

· Rule:

– To acquire property rights you need to bring the animals into your power and control, maintain your control, and not intend to abandon them back into the wild.

– The court said the important thing here was that the chance of escape for the fish was very slim, thereby they and been put under the power and control of the owner of the nets.

– Need to figure out where to draw the line about when the possibility of escape is too great for the animals to count as captured


5. Ghen v. Rich—the role of custom

· Facts: this case involves property rights over silverback whales, which were killed by shooting them with exploding harpoons and then 3 days later they would surface. Someone found a whale that had been killed by a group of hunters, and they decided to sell the whale and those who killed it sued to recover damages.

· Holding: The court held that the person who shot and killed the whale owned the whale.

· Reasoning:

– the custom for this industry was to give rights to

under land ownership

§ Prior Appropriation

§ Old English Common Law

o If you own land along a river, surface body of water

§ Common law approach

· Common law approach

o Own land, can use water underneath

· In the west where water is scarce

o Allocate water in a first in time basis

§ First to do things to acquire a water right

6. Ophir Silver Mining Co. v. Carpenter—over a claim to water rights

Facts: Defendant contends that they have a claim to their full quantity of water, through the expansion of their ditch, which increased the quantity of water received. Defendant’s predecessor established the first ditch in 1858/9 and completed it in 1865. Plaintiff’s predecessor established their ditch in 1859/60.

· Holding: The plaintiff’s use could continue because the second ditch dug by the first user was not prosecuted with diligence, so it was not part of the first use, and therefore it was dated to when it was completed, which was in 1865, which made it subservient to the plaintiff’s predecessor’s use.

· Rule:

1. How do you date a diversion of water?

Relation-Back Doctrine

Diversions are dated at the start of the work done to complete them, so long as the work on them is done consistently and diligently.

o When it takes a period of time to attain a water right under some circumstances

o General rule: Water right dated back to the first step—adjust prioritization accordingly.

o Must exercise reasonable due-diligence

– Constancy or steadiness or purpose or labor which is usually with men engaged in like enterprises, who desire a speedy accomplishment of their designs. (avoids hoarding and encourages people to use a valuable resource)

o Otherwise/Exception

– “Work not prosecuted with diligence, the right does not so relate, but generally dates from the time when the work is completed or the appropriation is fully perfected.”