* DEFINING PROPERTY (CH.1) -Private Ownership of Natural Resources

Question 1

Wild Animals: Pierson v. Post

Answer 1

NY (1805) “Fox chase”
o F: P was chasing fox on public land; D shoots, kills, claims fox
o H: killing the fox establishes ownership, so D prevails – pursuit is not enough for ownership
o Ferra naturae: inherently wild animal, thus inherently free
 Domestic animals – traditional property rights attach, even if the animal runs away
o Principles of Pierson re-emerge in oil and gas law because the resource is constantly “in motion”
o Note – neither owned the land on which the fox was killed; would be different outcome if this were on private property

Question 2

Wild Animals: Ghen v. Rich

Answer 2

MA (1881) “Whaling”
o F: lanced whale in MA Bay, can tell from the carcass who actually killed the whale
o H: Use of custom – the person who lanced the whale is the owner (finder cannot be the owner – instead can only recover the finder’s fee)
 Protecting interest in efficient trade/commerce
o Recall “fast fish / loose fish”

Question 3

Water: Evans v. Merriweather

Answer 3

IL (1842) “Mills”
o F: P sues b/c D obstructs stream and diverts water; P relied on stream to run his mills
o H: For P – naturally flowing river cannot be diverted; cannot injure any other user of the water b/c of usufructory rights
 No one owns the rive when it’s flowing (Natural Flow – UK Doctrine)
 If the water is captured (e.g. take from the river, put in a barrel), then it can be owned
• Modern doctrine has looked to reasonable use rule – right to participate in common benefit, none can have exclusive enjoyment

Question 4

Underground water:

Answer 4

o If the water can be pumped out, owner of the surface land owns the water beneath
o Traditionally this right was absolute (unrestricted)
o Modern – courts have imposed some reasonable use constraints (cannot transport water from very distant aquifers)
• Development of American west – prior appropriation rule
o First user assigned a legal right to the amount of water they were already using, so long as it was being put to a beneficial (e.g. reasonable) use
• Land beneath navigable waterways cannot be owned – instead belongs to public trust

Question 5

Oil & Gas: • Barnard v. Monongahela Natural Gas Co.

Answer 5

PA (1907) “Well on Property Line”
o F: P and D own adjacent land, both drill for natural gas; D adds new well very near to property line; P sues claiming that D is pumping P’s gas
o H: For D; applies the underground water capture rule – D is allowed to drill anywhere on his property
• Modern: doctrine of correlative rights – each owner has a right to a fair and equitable share of the oil and gas under his land as well as right to protection from negligent damage to the producing formation
• Note – internationally, sovereign retains the ownership of subsurface minerals, which compromises the private right to exclude since sovereign can come onto the property to extract the resource at any time

Question 6

Land: Three parties in property –

Answer 6

o True owner
o Current possessor
o Prior possessor
• In land, the lineage/chain of ownership runs back to the sovereign

Question 7

Land: Plume v. Seward & Thompson

Answer 7

CA (1854) “Gold Rush!”
o F: Ds are current possessors, P sues to eject them from the land
o H: For P – has a superior property right because he purchased the land from the prior possessor
 Chain of possession here: Sutter (Homestead Grant), to Cordura, to Covillaud (19 yr lease), who ultimately sells to P
 Covillaud was prior possessor b/c he had installed the man-made fence (claimed the land through enclosure); the larger parcel had “natural boundaries”
• Covillaud dug ditches; there was also cultivation and a corral, which is indication of possession
• Covillaud split up the large parcel into lots and sold them off–> indicia of possession
• Most states favor claims of prior possessor without legal title over a subsequent occupier of the land, so long as shown that the land had not been abandoned and that subsequent occupier did not possess legal title
• Possession – “must correspond, in a reasonable degree, with the size of the tract, its condition and appropriate use, and must be such as usually accompany the ownership of land similarly situated

Question 8

Slavery: Commonwealth v. Aves

Answer 8

MA (1836) “Free State”
o Issue: what happens when slave owner brings slave to a place where slavery has been abolished?
 Traditionally, slave would be emancipated if trip was long enough; but simply setting foot in a free state did not change slave status
 Ct. here rejects traditional rule – slavery can only exist where it has support of positive law
• Property rights are constitutionally protected, but the state can define what is property
o Nuisance/harmful – some things can’t be property because they’re too harmful to the public
o Slavery case demonstrates that nothing is inherently property