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Property I
University of Kansas School of Law
McKenzie, Sandra Craig





a. Acquisition by Capture

i. Wild animals

1. Pierson v. Post tells us that pursuit of a wild animal does not = possession.

2. Suggests possession of a wild animal comes either from:

a. Killing it

b. Mortally wounding it and continuing pursuit

3. ROL: Capture is required to vest title

ii. Capture and Escape

1. If you capture a wild animal and it escapes – do you still have title?

a. No.

b. The wild animal’s natural liberties have been restored.

2. What about domesticated animals? If they escape do you still have title?

a. Yes.

b. Law looks to the domesticated animals in a different light because they have intent to return.

iii. Custom

1. These rules may change in re custom

2. Where custom embraces an entire industry, judge-made law may not be appropriate.

a. See Ghen v. Rich

i. Custom was compelling to sustain title to capture when:

1. Custom affected few people

2. Custom has been relied upon for many years

3. Custom required the hunter to perform all that was possible given the circumstances (of hunting whale in Cape Cod)

4. Without the custom – the industry might die because people wouldn’t engage in it if their labors could be appropriated to by-chance finders.

iv. Capture of wild animals on another’s land:

1. A trespasser who captures a wild animal on the land of another probably won’t have any rights to the animal when compared to the landowner – even though the landowner never had physical possession of the wild animal and the trespasser does.

2. Doctrine of Ratione Soli:

a. Asserts that an owner of land has constructive possession of the wild animals while they are on his land

b. Cases

i. Pierson v. Post

1. Facts:

a. Post discovered a fox on wild and uninhabited land.

b. In an attempt to capture it, Post began to hint and pursue the fox with dogs

c. Pierson knew that Post was hunting the fox, but he killed the fox and took possession of it

2. Legal Argument:

a. Post argues that he acquired title to the fox because he was the first to start hunting it

b. Pierson argues that he acquired title to the fox because he killed it

3. Issue:

a. Does mere pursuit of a wild animal vest title in the pursuer? / What qualifies as “possession”?

i. Held: No.

b. Black Letter Rule: A hunter must either trap or mortally wound a wild animal in order to acquire title to it.

4. Court’s Decision and Rationale:

a. Property rights to a wild animal can only be obtained by “occupying” it.

b. Differences in authorities:

i. Some authorities feel that a hunter can only occupy an animal if he traps it

ii. Other authorities feel that a hunter can occupy an animal if he mortally wounds it and remains in pursuit

c. But all authorities agree that mere pursuit is insufficient to vest title in the hunter

i. If otherwise, it would be difficult to establish who was the first to pursue.

ii. Ghen v. Rich

1. Facts:

a. Ghen shot and killed a whale which sank to the bottom of the sea but later shored.

i. (In killing the whale, Ghen followed the local custom by leaving a unique bomb-lance on the whale)

ii. (When the finder finds the whale, he looks to the bomb-lance and sends word to the killer)

b. Ellis found the shored whale and sold it to Rich

2. Legal Argument:

a. Ghen argues that title may be acquired when the hunter apprehends a beast in accordance with custom

b. Rich argues that custom does not govern the acquisition of title

3. Issue:

a. Is title to a wild animal acquired when a hunter apprehends the beast in accordance with custom?

i. Held: Yes.

b. Black Letter Rule: Title to a wild animal is acquired when a hunter apprehends the beast in accordance with custom.

4. Court’s Decision and Rationale:

a. When a custom embraces an industry (such as whale hunting) there is no need for the court to make a new rule.

i. The custom is good enough

b. Custom here is sufficient:

i. It affects relatively few people (only a few whale hunters in Cape Cod)

ii. It has been relied on for many years

iii. It requires the hunter to perform all that is possible given the circumstances of whale hunting in Cape Code

iv. It gives a reasonable fee to the finder

v. (And without this custom – the industry would die because no person would engage in the industry if his labor could be appropriated to a by-chance finder.)

c. Holding:

i. Ghen had title when he captured the whale (in accordance with custom).

iii. Keeble v. Hickeringill

1. Facts:

a. Keeble owned a pond and lawfully placed decoys near the pond to lure and catch wildfowl

b. Keeble hunted the wild animals in pursuit of his trade

c. Hickeringill, with the purpose of frightening away the wildfowl, fired a gun 3X near the pond

i. The wildfowl were permanently frightened away

2. Issue:

a. May a landowner, in pursuit of his trade, lawfully capture wildfowl free of the malicious interference of another?

i. Held: Yes.

b. Black Letter Rule: A person may not maliciously prevent another from capturing wile animals in the pursuit of their trade.

3. Court’s Decision and Rationale:

a. 2 public policy rationales for allowing a landowner to capture wildfowl in pursuit of his trade without malicious interference:

i. Every man should be able to enjoy the use of his land as he sees fit so long as the use is lawful

ii. The capture of wildfowl in pursuit of a trade is profitable – it creates wealth for society

iii. Want people to engage in occupations and protect their efforts

b. There are cases where an individual may interfere with another in the pursuit of hi

cting prior possession:

1. Encourage finders to make productive use of their finds rather than hide them;

2. Provide a cheap, easy means of establishing presumptive title

iii. Exceptions:

1. If an employee finds a lost article on the employer’s premises, the property goes to the owner

a. Because the employee is acting on behalf of the owner

b. Criticism here – it discourages finders from reporting their findings (find it = lose it)

2. Lost property found under the soil or embedded in the soil belongs to the landowner

a. Owners of land expect that they own not just the surface, but all that lies underneath.

b. This also discourages trespassers from coming onto land in search of treasure.

iv. Note: Should courts be more willing to grant replevin to the prior possessor than to grant money damages?

1. In re real property – grant replevin

2. In re personal property – grant money damages

b. Bailment

i. Bailment is the legitimate possession of personal property by someone who is not the owner of the property

1. Bailments can be created voluntarily or involuntarily

ii. Bailee

1. One who has the duty of care with regard to the object; the non-owner of the property

iii. Bailor

1. The person who owns the property

c. Abandoned, Lost and Mislaid Property

i. (Note: professor suggests that legislative action is probably the best way to handle these questions)

ii. General rules:

1. A finder’s title is good against the whole world except the true owner, prior finders and (sometimes) the owner of the land

2. Lost property goes to the finder, while mislaid property goes to the shop owner:

a. Lost Property:

i. Ex. That which slipped out of your pocket

ii. Lost property goes to the finder

b. Mislaid Property:

i. Property that the true owner placed somewhere with intention of returning for it, but which cannot now be located.

ii. Mislaid property goes to the shop owner

c. Policy reasons behind this:

i. Promote the return of lost property to its true owner

ii. If property is mislaid, the true owner will likely retrace his steps and return to the shop where he mislaid it

iii. Thus, the rule that places mislaid property in the hand of the shop owner will more efficiently return mislaid property to the true owner