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Property I
University of Toledo School of Law
Kennedy, Bruce M.

Property I – Outline
I                Acquisition by Capture
A       Rule: 
1       A person who captures resources is entitled to the resources
B        Capture of Wild Animals
1       If wild animals are captured (ferae naturae), they belong to the captor
a       Pierson v. Post
2       Mere chase does not constitute possession (Although minority view says it does)
3       Rationale:
a       To give incentives for COMPETITION à wanted people to kill the “fox”
b       Easier rule to administer than that of pursuit
C       Wounded or Trapped Animals
1       General Rule
a       If an animal has been mortally wounded or trapped, the animal is treated as captured à if the animal is still in the process of being “trapped” it has not been captured
2       Cage Not Escape Proof 
a       Animal must be captured in an “escape proof” enclosure à capture must use reasonable precautions against escape
3       Competition
a       society wants competition, but wants it to be “fair” 
4       Interference by Non-Competitor
a       A competitor can interfere w/ capture, but a non-competitor can not
i        duck case
5       Custom
a       custom of a trade may dictate possessory rights prior to capture when it is economically efficient
i        whale case
6       Wild Animals w/ Habit of Return 
a       Captured wild animals who develop a habit of return still belong to the captor when they roam
7       Escaped NON-native Wild Animals 
a       if non-native animal escapes, the animal is still the possession of the prior possessor if the hunter should have reasonably been “put on notice”  
i        Ex. elephant in PA woods
8       Landowner
a       landowner has constructive ownership over all wild animals on his property
i        Prior possession rule
9       Governmental Protection of Animals
a       Government owns animals, but takes no responsibility for damages they cause
D      Water Law
1       Three Types of Water
a       Bodies of Water = (Lakes and Streams à above and below ground)
i        Riparian rights (eastern states)
(i)          Riparian owner has rights to swimming, fishing, transportation, and use of water on riparian land à
(a)     *land adjacent to a river or lake
(ii)         Riparian landà (littoral)
(a)     Land adjacent to body of water
(b)    Water riparian rights run with the land (can NOT transferred or sold)
(c)     Water can only be used on riparian lands
(d)    If land is severed (ex. mountains) riparian water can’t be used on it à “once severed, always severed
(iii)       Natural Flow v. Reasonable Use doctrines
(a)     Natural Flow
a.       riparian owners are entitled to natural flow of water (can not materially diminish flow)
b.      Can be used for domestic needs (NATURAL)AND commercial needs (ARTIFICAL) if this does not infringe on other owners
i.        Domestic uses includeà bathing, drinking, gardening, farm animals
(b)    Reasonable Use
a.       riparian owners are entitled to reasonable use of

(i)          Common Enemy doctrine: 
(a)     surface water is the enemy, and land owners can divert surface water w/ impunity
a.       Other jurisdictions have modified rule that says they can not unreasonably interfere w/ neighbors or at least not negligently
(ii)         Natural Servitude doctrine:
(a)     States that lower land is servant to the natural flow of surface water, and owner of higher land can not obstruct the path if others will be harmed
E       Oil and Mineral Rights
1       The owner of land owns everything below the soil up to the sky
2       Some courts treat (oil and gas) under the capture rule b/c its tendency to move under the soil à owners can drill and take as much as they can
a       Can not negligently consume the oil (by fire)
II             Acquisition by Find
A       Rule 
1       finders have claim of right to thing found “above all others except for the true owner” CONSTUCTIVE POSSESSION
a       Must acquire “physical possession” and have “intent to assume dominion over it”
B        Prior Possessor Rule
1       Protects owner
a       usually owners do not have title to all property à possession is easier to prove than ownership
2       Bailment