Capture Flashcards
What is the rule for capture
Actual Possession which would render escape impossible - killing, mortally wounding, or trapping an animal
What are the 4 elements to the capture rule?
- first in possession is first in right
- if an animal escapes, no possessory rights remain
- if you train an animal to return, you have no rights
- if you import a non-native species, you have possessory rights over it.
How does possession work when there is no competition for it (exception to capture rule)?
if there is no competition for possession, an interpretation possession more broadly
What is it called when someone does all they could possibly do to possess but they still don’t (exception to capture rule)?
This is called constructive possession, which gives possessory rights (i.e. when a whale gets away after spearing)
Pierson v. Post
FIRST ACQUISITION OF PROPERTY - CAPTURE
Property possession of wild animals is acquired by mortally wounding, capturing from a distance and physical possession.
only actual possession will suffice
Does pursuit of a wild animal vest property rights in the pursuer?
No, mere pursuit of a wild animal does not vest property rights in the pursuer. Only actual possession will suffice.
When does someone establish property rights over a whale?
When he takes possession of the carcass and practical measures to secure it
Does the custom that the finder of a whale notify the whaler of his discovery validly confer a property interest in the whale by the original whaler?
Yes, anchoring a whale with the intent to appropriate were enough to establish a possessory right to the whale – even though the whale may drift.
Thus, the custom compelling the finder of a dead whale to contact the original whaler established the whaler’s property claim in that whale, and the blubber and oil therein.
Otherwise the industry would suffer if whalers could so easily lose the fruits of their efforts.
Keeble v. Hickeringill
FIRST ACQUISITION OF PROPERTY - CAPTURE
A property owner has a right to make lawful use of his property for profit without malicious interference of others.
Does a remedy exist for a property owner whose use of his property for profit is frustrated by the malicious acts of another?
Yes, where a landowner uses his property for a profit-making venture, it constitutes a trade and interfering with a person’s livelihood constitutes an award of damages.
Is using a decoy to capture animals legal?
Yes, using decoys (like duck ponds) to capture wildfowl is legal and makes lawful use of one’s own property to make a profit if they so wish.
If a person interferes with another’s right to capture animals via decoys (especially when its for profit) from their own land - is the interfering party held liable?
Yes, where a landowner uses his property for a profit-making venture, it constitutes a trade and interfering with a person’s livelihood constitutes an award of damages
The person interfering would have been free to set up their own/competing decoys - thus diverting the animals if they so wished.
