Miller-Property-_Fall09.doc
Introductory Concepts (Chapters 1& 2)
Acquisition of Property by Capture
Acquisition by Creation
Acquisition by Find
Acquisition by Adverse Possession
Acquisition of Property by Capture (first possession)
Pierson v. Post (DP) FIRST IN TIME RULE
Facts: Post was riding a horse with hounds and chasing a fox. Pierson came upon the chase and killed the fox, then took it. Post sued Pierson for taking what he considered to by his property.
Issue: Whether a hunter has rights to an animal ferai naturae by virtue of pursuit or by virtue of its capture.
Holding: Mere pursuit is not grounds for possession, only actual possession and capture.
Reasoning: Though Pierson’s actions were reprehensible, they are do not have legal remedy.
Actual possession of the animal is not always necessary, provided that the person has mortally wounded the animal, i.e. deprived it of its natural liberty. Other theories/scholarly interpretations and formalistic reasoning:
§ Puffendorf → occupancy of beasts is in Ferae naturae – wild animals (rule that they cannot be claimed except by capture and actual corporal possession)
· Bynkershoek agrees
· pursuit gives no legal right but intercept and killing did
§ Barbeyrac → affirms that actual bodily seizure NOT needed to constitute possession of wild animals but he doesn’t say that pursuit alone is sufficient for title (Ct says the objections of B to Puff are correct) but mortal wounding MAY be deemed sufficient for possession b/c as such pursuer is manifesting unequivocal intention of appropriating animal to individual use
§ BUT ct says this case is of ‘mere pursuit’ and so Puff, Grotius, Barbeyrac definitions of occupancy are irrelevant
Support for verdict:
§ Majority cites formalistic reasoning of historical writers. (Justinian supports only actual possession, not mortal wounding, is grounds for ownership)
§ BUT other interests support best outcome for society:
· better chance that animal will end up being killed → incentivizes labor/productivity of killing foxes generally.
· efficient outcome occurring if two chase it rather than just one
· certainty, clarity, peace, order → know what rule is. If you bag it, it’s yours.
· the act here involved no injury/damage for which legal remedy can be applied**
opposition to verdict:
§ may discourage hunting efforts if can’t be sure that your efforts/expense in initial chase will be protected and paid out to in the end
Cites Keeble v. Hickeringhill p31
§ distinguishable b/c it was malicious hindering/disturbance of private franchise and ducks were in P’s possession ratione soli = constructive possession. Foxes NOT on anyone’s land so can’t have constructive possession.
· NOT true distinction → Keeble wasn’t based on rationae soli but on the idea of interference with trade.
Policy: main policies arising from this:
§ Certainty, clarity, peace, order: Allowing Pierson to have possession of the fox would lead to frustrating legal complications, as it would lead to an “I saw it first” attitude towards property, which is difficult to prove and execute.
§ Efficiency: The main point of Pierson v. Post is TO GET RID OF FOXES, as they are considered ‘noxious beasts.’ (better if two chase than one)
Dissenting opinion: Justice Livingston first stated that the court should have first turned to industry standards, not ancient philosophers. In this case, Post would have won, as the regional hunters believed that pursuit gave rights.
He believed that the best way to get rid of such noxious beasts was to encourage noblemen to invest in horses and hounds to capture them. Thus, he agreed with the rest of the court, but believed that instead that the court should distinguish the size of the hounds with which the animal was being chased. If the dog were a hound, rather than a beagle, then the hunter should be considered to have the animal regardless of actual or constructive possession. (i.e. large dogs constitute constructive possession)
Constructive possession: Possession based on a legal conclusion even though she does not have actual possession of the property as an observable fact.
Important Because: Established first in time rule
QUESTIONS:
Would have been different if they had been on hunter’s land
General rule: an escaped wild animal that returns to the state of nature belongs to the next possessor
Ghen v. Rich 1881 District Court of Massachusetts (p. 26)
One guy harpooned a whale, another found it and collected $ from the sale of its blubber. Held for party that killed whale originally.
Cited theories:
Judge Sprague, Taber v. Jenny: when a whale has been killed and is anchored and left with marks of appropriation, it is the property of the killer. If it is found afterwards, still anchored, to another ship, there is no reason why the second ship should get it. It became the property of the killers all was done that was practicable to secure it.
Judge Lowell, Bartlett v. Budd, “as libellants had killed and taken actual possession of the whale, the ownership vested in them”. “A whale, being ferae naturae, does not become property until a firm possession has been established by the taker. But when such possession has become firm and complete, the right of property is clear, and has all the characteristics of property”.
§ “there would be a great difficulty in upholding a custom that should take the property of A and give it to B under so very short and uncertain a substitute for the statute of limitations, and on so opn to fraud and deceit”.
§ Support for trade usage/custom in determining who owns property in whale that has been killed by A and since washed up on shore → B can’t come steal the whale away and sell the blubber for oil
· Decision could affect other industries that try to argue by analogy.
Judge Lowell, Swift v. Gifford; decided that a custom among whalemen in the Artic seas that the iron hold the whale was reasonable and valid, even if the iron did not hold the whale to the boat. Said that it was hard to object to a custom “which was embraced by an entire business and had been concurred in for a very long time by everyone engaged in the trade”. ***time and trade usage***
Reasons set by the judge to give the whale to the killer:
§ Time: it has been recognized for many years
§ Context: “it requires in the first taker the only act of appropriation that is possible in he nature of the case”
§ Market: unless it is sustained, this branch of industry would necessarily cease, for no person would engage in it if the fruits of his labor could be appropriated by any chance finder
§ It gives reasonable salvage for securing or reporting the property
§ The rule works, as the industry has practiced it for a long time
§ Trade: states that is in not necessarily because this is the custom that this was adopted
§ clarity/productivity
· no surprise to anyone b/c the industry knows the rules
· more people will hunt whales if know they don’t have to drag them out right away which is expensive or impossible
o but does this protect lazy whalers?
· but what if you’re new to town? Have to find out custom on your own?
§ Instrumental goal → keeping whaling industry going. Although it could incentivize finding better ways to kill/capture whales if didn’t allow this harpoon rule.
NOTES AND QUESTIONS
1) Would Pierson rule have sufficed here or is custom/usage needed for libellant to win?
2) Relationship between formal law and informal norms.
Ellickson said that all supposed and actual whaling norms boil down to essentially three
§ Fast-fish/loose-fish distinction: a claimant owned a whale, dead or alive, so long as the whale was fastened by the line or otherwise to the claimant’s boat or ship
§ Iron holds the whale: confers an exclusive right to
ed under her land?
What if B had the resources and A wanted to drill but didn’t have the resources and A had a deeper well on her side? I would say grant an easement or a profit. Very expensive and perhaps both would benefit. But what is the law? Difficult to figure out.
Hammonds v. Central Kentucky Gas Co. 1934
Kentucky Gas injected gas under Hammond’s land. Hammonds sued to recover damages for the use an occupation of land. Court said that Kentucky was not liable because under the rule of capture, the gas no longer belonged to Kentucky.
Critiqued because it denied society at large the benefits of underground storage
Eventually Hammonds was overruled
Boom presumes that reinjection does not ordinarily give rise to liability for use and occupation of parts of a reservoir under other peoples land, even though the ownership is still intact.
Hornbook notes: The rule of capture is seldom used today and instead tends to be subject to state and federal regulation, largely because this mentality leads to a sort of frenzy to get the resources first. If you don’t get it your neighbor will at your expense.
Water
Rule of capture played formative rule here as well
Groundwater was governed by rule of absolute ownership, which allowed each landowner to draw water freely without regard to effects on neighbors (English rule)
American rule: reasonable use: modified rule of capture where wasteful uses of water, if they harmed neighbors, were considered unreasonable and unlawful. Today it is governed by legislative and administrative programs.
Surface waters: governed according to first in time too, called prior appropriation.
Basic principle: the person who first appropriates water and puts it to reasonable and beneficial use has a right superior to later appropriators. Developed as a direct consequence of scarcity of water in the west.
In east:riparian rights. Each owner of land along a water source has a right to use the water, subject to the rights of other riparians
This looks like it isn’t first in time but it is, as the land was appropriated by first in time rules
Problem of riparian rights: poor means to allocate water, and takes little account of the relative productivity of the land the water services, and encouraged bowling-alley parcels to get at the water, which is hard to make efficient use of if the water was scarce to begin with (like a stream)
Problems of prior appropriation: encourages premature development and excessive diversion of water. Also poorly rations when supplies get low.
Harold Demetz, Toward a Theory of Property Rights (41)
Property rights: convey the right to benefit or harm oneself or others
Specify how persons may be benefited and harmed, and, therefore, who must pay whom to modify the actions taken by persons
Primary function: guiding incentives to achieve a greater internalization of beneficial and harmful effects
New property rights thus often have to do with new benefits and harms
Externality: Harmful or beneficial effects are turned into externalities is that the cost of brining the effect to bear on the decisions of one or more of the interacting persons is too high to make it worthwhile.
