Acquisition by 1st Possession Flashcards
Pierson v. Post Facts
Post used large dogs on uninhabited, unpossessed land to hunt for a fox. While chasing fox with large dogs, Pierson killed it and carried it away.
Pierson v. Post Holding
Def gets fox, P gets nothing.
Pierson v. Post Reasoning
Property in wild animals (ferae naturae) may only be acquired by occupancy, pursuit alone is not enough. Requires actual bodily seizure or control. Fox part of commons until act of occupancy created ownership
Policy concern here that w/o a rule of capture, vagueness would increase litigation.
Pierson v. Post Rules
- One possesses wild animal by actually capturing it orJudge Tompkins says by substitute by having certain control by mortally wounding or trapping it, or rendering escape impossible.
- Rule of capture: 1st in time, 1st in right.
- Efficiency theory: We should reward property rights to the most efficient person. Idea of maximizing utility and fashioning legal rules to reward people who will operate most effectively.
Ghen v. Rich Facts
Ghen, a commercial whaler, killed a whale using a lance and allowed it to sink with the lance until it was found later. Local custom was to let a dead whale sink w/ marker and then float to shore for later use. Ellis found the whale, did not know who killed it and sold it to D.
Ghen v. Rich Holding
Court found for Ghen and awarded him the value of the blubber.
Ghen v. Rich Reasoning
The Court considered the wide adherence to the lancing custom within the whaling industry. The custom is r’able since it properly incentivizes investment of time and effort in killing the whales, and society cannot let chance finders appropriate the whale’s value later. The usages or customs here served as informal property rights and should be upheld to save the industry.
Ghen v. Rich Rules
- Usage or custom applies when r’able and widely recognized in a given community. Industry custom should be applied when it (1) embraces the entire industry (2) is limited in application (3) is necessary for the industry to function successfully.
- In the context of a whale or something where immediate possession is physically unattainable, if the fisherman does all that is possible to do to make the animal his own, that’s sufficient.
Judge Livingston Dissent in Post
If u discover ferae naturae in sporting contest, u pursue it and get within reach of it w intent to capture and u have reasonable prospect of getting it, u should get 1st possession.
Tragedy of the Commons
A collective action problem. It is an individual’s interest to exploit a collective resource, but it is in the community’s interest that the collective resource be managed sustainably.
Externalities
- Whenever some person makes a decision about how to use resourses w/o taking full account of the effects of the decision.
- Resources tend to be misused or misallocated in 1 way when another would make society better off as a whole
- the purpose of private property rights is to enhance social welfare by maximizing the value of scarce resources.
- When transaction costs become sufficiently high, the external effects of using resources are unlikely to be taken into account through any sort of bargaining process, and the resources likely to be misused.
Malicious Interference with Trade:
Keeble v. Hickeringill
Facts
Plaintiff operated a decoy pond on his land to capture wildfowl using ducks, nets, machines and engines to attract and ultimately capture them. Defendant set up guns at the head of the pond to scare off the wildfowl with the noise and smell but had no intent to capture.
Elements of malicious interference with trade
Malice
Interference
Trade
Keeble v. Hickeringill Holding
In favor of Plaintiff
Keeble v. Hickeringill Reasoning
Def liable for maliciously interfering w P’s trade w/o purpose of competition. If he had lured away the fowl by creating a pond of his own then no liability. P was paid for Ds disturbance not the prop value of the ducks to put him back in the position he was in b4
