Acquiring initial property rights Flashcards
Pierson v. Post (fox hunt)
This rule of capture case represents the importance of possesion, as in first in time as the governing principle.
Where the pursuer brings a wild animal within his own control, by continuing the pursuit after having mortally wounded the beast, or encompassing it with nets and toils, or otherwise intercepting it, so as to deprive it of its natural liberty, and render escape impossible, he manifests such an intention to appropriate it to his own use as will support his right of property therein.
Johnson v. M’intosh
• Sup Ct., 1823-P got the land from Indian tribe, D got the same land from the govt. Court held D had superior title because Tribes only have a right of occupancy so they can’t convey property in FSA. Only the US govt. could convey title because they held it in FS as a result of conquest, and even then it was subject to the Indians’ right of occupancy (until the govt. extinguished this right).
Rule of capture
Mere chasing is not enough. (Though custom, it’s a dick move to steal a catch)
Communication of intent to capture
Illustrate intent moral wounding, trapping, through customary practices (rules of fox hunting and whale hunting)
Communication of ownership
First in time possession to physically posses/occupy to constructive possession (wounding, fencing off an animal)
Capture occurs when you have physical of constructive possession of an animal by depriving it of natural liberty;
1. intent to capture
2. actual control
3. occupation: deprivation of natural liberty (don’t abandon)
Ghen v. Rich (Whale case)
US Dist. Ct, 1881- Fin back whales were hunted near Massachusetts. A person would normally shoot the whale with an identifiable lance and the whale would float to the surface or appear on a beach in a few days. Libellant shot and killed a whale and days later Ellis found the dead whale 17 miles away and sold it.
• If whale ownership is based on first possession this branch of industry would cease, because the fruits of your labor (killing the whale) could be taken by the any chance finder of the whale days later
• An exception to natural property common law can be permitted if the regular custom has the general acquiescence of the community
found local custom was constructive possesion because the whaler did everything he could to bring the whale into his possesion
Keeble v. Hickeringill (duck decoy) ITS DUCK SEASON
- Queen’s Bench, 1707- Plaintiff had constructed a decoy pond in order to catch large quantities of wildfowl for food. The defendant shot six guns in order to scare the birds away
- A person has a right to catch wild fowl on his/her property, therefore, anyone who interferes with this is liable
- If the defendant had set up his own decoy pond to lure ducks that would be okay, but it’s not okay to cause a disturbance to deprive the plaintiff of his livelihood
- There was a malicious interference with trade
Ratione sole (constructive possession)
- Landowners are regarded as the prior possessors of any animals ferae naturae on their land until the animals take off
- Doesn’t seem to be the case in Keeble, because Holt relied on interference with trade
- Reasonable effort to deprive the thing of liberty
- Animals are owned if they are domesticated
- Domesticated means they return to the owner.
Oil and gas
- Courts initially reasoned it should be compared to wild animal rule of capture
- Resources belong to the owner of the land, so long as they are under his control
- If a person drills and it comes under his control, it is his.
- A person should recover what’s on their land or file an injunction against excessive drilling from another
- Should be treated like a fugitive resource or wild animal, if it’s on your property and you catch it, it’s yours
Water rights
- Prior appropriation (West method)
- The first person who appropriates water and puts it to a reasonable and beneficial use has a right superior to later appropriators
- Riparian rights (East method)
- Each owner of land along a water source has a right to use the water, subject to the rights of other riparians
- Built on the fact that people had to be first in time to get land on the water, in order to get the water rights
Acquisition by discovery in general
Capture occurs when you have physical or constructive first possession of a fugitive resource by depriving it of natural liberty through wounding or trapping, or have communicated your intention to capture through socially recognized customary practice. Land owners have the additional right to capture fugitive resources upon their land without malicious interference to trade or acquisition by unauthorized trespass so long as the resources are under the owner’s control.
Conquest Rule
- US govt. has absolute title while natives have occupancy
- applies to conquered indians
- “title by conquest is acquired and maintained force”
How to catch a wild animal
Needs to bring the animal within their control, and not abandon it
title is lost if the animal escapes(qualified title)
Constructive Possesion
Mortally wounding an animal is enough
owner of land has Possesion of animals on his land see. keeble
Animus revertendi
if a wild animal has a habit of returning to your land, it is domesticated and their rightful owner is the property owner.
(rule of increase) offspring belongs to owner of the mother absent an agreement
Justinian
Pursuit is not enough; animal must be taken
puffendorf
actual corporal possesion equals property right
