Macdonnell
Nat.Res.Law
Fall 2010
Pierson v. Post
1. Holding/Rule:
· Pursuit alone vests no property or right in the huntsman; and that even pursuit, accompanied with wounding, is equally ineffectual for that purpose, unless the animal be actually taken.
· Ownership of wild animals is determined to be the actual corporal possession of them.
· In order to constitute such an occupancy, it is sufficient if the animal is deprived of his natural liberty, by wounding or otherwise, so that he is brought within the power and control of the pursuer.
Common Property: Access is limited to a defined group of people; can exclude non-owners
· They have the duty to maintain the property through constraints placed on use.
· Example: shared aquifers in CA; lakes in eastern states; open lands in western states.
Private Property: assigns ownership to named individuals, guaranteeing to those owners control of access and the right to a bundle of socially acceptable uses.
· Requires of the owners that they avoid specified uses which are deemed socially unacceptable.
State Property: owned by citizens of a political unit who assign rule-making authority to a public agency.
· Duty to ensure that rules promote social objectives.
Open Property: Has no ownership assigned, and is property open to all.
Three Categories of Property Rights:
· (1) Rights to use an asset-user rights. Right to transform physically or even destroy an asset.
· (2) right to earn income from an asset and contract over the terms with other individuals.
· (3) right to transfer permanently to another party ownership rights over an asset.
Elements of absolute property rights:
· Held by single individual
· In perpetuity
· To everything within it boundaries, including from heavens to depths
· To the exclusion of all others
· To its use without limitation
· To is alienation without limitation.
Why use property rights for natural resources?
· Empower individuals to make productive use of resources in furtherance of self/group interest
· Provide security
· Encourage a long-term perspective (continued ownership)
What we lose?
· Fragmented management and development.
· Concern only with owner’s interests, not broader societal concerns
· Potential for increased conflicts between owners.
· What does it mean to “own” nature?
State v. Johnson
1. Facts:
· Johnson wanted to fill parts of his land with “fill”, dirt, so it could be developed but the part that he wanted to fill was a “wet-land” that the state wanted to protect.
2. Issue:
· Whether the limit and injunction of Johnson to use his land is a “taking” of his property without the constitutional due process and just compensation?
3. Holding/Rule:
· To leave appellants with commercially valueless land in upholding the restriction presently imposed, is to change them with more than their just share of the cost of this state-wide conservation program.
· Their compensation by sharing in the benefits which this restriction is intended to secure is so disproportionate to their deprivation of reasonable use that such exercise of the state’s police power is unreasonable.
· The application of the Wetlands restriction in the terms of the denial of appellants’ pr
to whether, under all the facts and circumstances of that particular case, the interfering use shall be declared unreasonable and as such enjoined, or whether a reasonable and equitable adjustment should be made, having due regard to the reasonable rights of each.
4. Notes:
· Reasonable Use Theory: based on the necessity and desirability of deriving greater benefits from the use of our abundant supply of water. It recognizes that there is no sound reason for maintaining our lakes and streams at a normal level when the water can be beneficially used without causing unreasonable damage to other riparian owners.
· Natural Flow Theory: A riparian owner can take water for domestic purposes only, such as water for the family, live stock, and gardening, and he is entitles to have the water in the stream or lake upon which he borders kept at the normal level.
· Riparian Doctrine: based on the old common law which gave to the owners of land bordering on streams the right to use the water there from for certain purposes, and this right was considered an incident to the ownership of land.
· The rights of riparian proprietors on both navigable and unnavigable streams are to a great extent mutual, common, or correlative. The use of the stream or water by each proprietor is therefore limited to what is reasonable, having due regard for the rights of others above, below, or on the opposite shore.
