Acquisition by Capture Cont d. Carol M. Rose, Possession as the Origin of Property, Perspectives, p. 180

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Acquisition by Capture Cont d Carol M. Rose, Possession as the Origin of Property Keeble v. Hickeringill Constructive Possession More on Wild Animals Fugitive Resources Carol M.

1 Acquisition by Capture Cont d Carol M. Rose, Possession as the Origin of Property Keeble v. Hickeringill Constructive Possession More on Wild Animals Fugitive Resources Carol M. Rose, Possession as the Origin of Property, Perspectives, p. 180 Theories (3) Lessons from Johnson v. M Intosh, Pierson v. Post, and Ghen v. Rich Texts and subtexts and cultural relativity Visual signals artificial systems 1

2 Keeble v. Hickeringill, Queen s Bench (1707), Casebook p. 27. Constructive possession Ratione soli Malicious interference with trade Benefits to the market Keeble v. Hickeringill Cont d Effect on Pierson v. Post? Instrumental end? 2

3 Keeble v. Hickeringill Cont d Keeble v. Hickeringill Cont d 3

4 Practical Implications of Coase Robert Cooter (Perspectives, p. 209) argues that The law should assign entitlements to the party who values them most, so that the costly process of exchanging entitlements is unnecessary. Alternatively, if the party who values the entitlement the most cannot be identified, the entitlement should be assigned to the party who can initiate an exchange at the lowest cost., Whalers, and Coase To whom should we assign the entitlement? Who values the entitlement the most? Who is more identifiable for the sake of negotiation? 4

5 , Whalers, and Other Considerations To whom should we assign the entitlement? Who is providing the more useful or valuable labor? What are the policies or instrumental ends behind the rule you choose? The Rule of Capture and Wild Animals Problem 1, p. 31 Relativity & Trespass T, a trespasser, captures a wild animal on the land of O, landowner, and carries it off to her own land where she confines it in a cage. T1 trespasses on T s land and takes away the animal. In a suit by T against T1, who should win? What if O went and took the animal from T and T sues O. Who should win? 5

6 The Rule of Capture and (Wild) Animals Problem 2, p. 32 Constructive Possession F, has established a herd of deer that she keeps for pleasure and an occasional roast of venison. The deer roam about on open government grazing land during the day, but are sufficiently tame and domesticated that they return to a large shelter on F s land in the evening. H, a hunter, shoots one of F s deer one day during the hunting season.. F sues H for return of the carcass. Who prevails? What policies might be served by holding for F? For H? The Rule of Capture and Wild Animals Problem 4, p Ownership F, a farmer, is bothered by wild migrating geese on her land and shoots them in violation of the fish and game laws. The government confiscates the carcasses, and F sues for their return. The government wins; the court explains that the government owns wild animals, may regulate their taking, and may confiscate animals taken in violation of regulations. 6

The Rule of Capture and Wild Animals Problem 4, p. 32 Ownership Cont d When the geese return the next year, F sues the government for damage to her field caused by the geese.

7 The Rule of Capture and Wild Animals Problem 4, p. 32 Ownership Cont d When the geese return the next year, F sues the government for damage to her field caused by the geese. The government wins again, the court holding that the government does not own wild animals and thus is not liable for any damage caused by them. Who Owns Wild Animals? p. 32, n.17 What if damage were caused by wildlife that the government reintroduced to the local environment? See Christy v. Hodel, 857 F.2d 1324, 1335 n.9 (9 th Cir. 1988), cert. denied, 490 U.S (1989). 7

8 Wolf Reintroduction ID, MT, WY, UT, AZ & NM Average Payment Per Year Average Payment Per Animal Total Number of Animals Killed By Wolves (1,196 sheep, 2,195 cattle, 100 other (llamas, guard dogs, horses, mules, pigs, chickens, etc.)) The Bailey Wildlife Foundation Wolf Compensation Trust Defenders of Wildlife Total Payments Number of Payments Learn more about the Bailey Wildlife Foundation Wolf Compensation Trust at $1,153, $52,428 $330 3,491 The Rule of Capture and Other Fugitive Resources: Oil and Gas There is a common pool of oil beneath A s and B s land. Does A have a remedy at all if B starts draining the pool? Suppose B s well starts on her land but angles down such that it bottoms underneath A s land. Does the rule of capture apply? 8

The Rule of Capture and Other Fugitive Resources: Oil and Gas Cont d There is a common pool of oil beneath A s and B s land. Suppose A reinjected oil that later moves under B s land.

9 The Rule of Capture and Other Fugitive Resources: Oil and Gas Cont d There is a common pool of oil beneath A s and B s land. Suppose A reinjected oil that later moves under B s land. B sues to recover damages for use and occupation of her land by A s oil. What result? The Rule of Capture and Other Fugitive Resources: Groundwater Rule of Capture English common law rule of absolute right (limited by doctrines against waste and malicious injury) Texas. American Rule reasonable use, usually measured by whether it is used on the land from which it is pumped. 9

The Rule of Capture and Other Fugitive Resources: Groundwater Cont d Correlative Rights fair and just proportion, favoring on-land use as the American

The Rule of Capture and Other Fugitive Resources: Surface Water Riparian/Natural Flow Eastern States reasonable use and not damaging others Colorado

10 The Rule of Capture and Other Fugitive Resources: Groundwater Cont d Correlative Rights fair and just proportion, favoring on-land use as the American Rule, but based on amount of land owned. Prior Appropriation First in time, first in right intentional diversion and beneficial use. The Rule of Capture and Other Fugitive Resources: Surface Water Riparian/Natural Flow Eastern States reasonable use and not damaging others Colorado Doctrine/Prior Appropriation Rocky Mountain States diversion and beneficial use California Doctrine/Mixed Riparian and Appropriative Rights Western States, including Texas 10

Acquisition by Discovery, Capture, and Creation

Acquisition by Discovery, Capture, and Creation Recap: Pierson v. Post and Ghen v. Rich First pursuit v. first possession Certainty Custom Constructive possession Ghen v. Rich Revisited Fin whales are