Acquisition by Possession

2. Acquisition by Possession


2.1 Possession Generally


2.1.1. Wild Animals


Pierson v. Post,

3 Cai. R. 175 (NY 1805)




Argument of Counsel




Mr. Sanford, for the now plaintiff. It is firmly settled that animals, feroe naturoe, belong not to anyone. If, then, Post had not acquired any property in the fox, when it was killed by Pierson, he had no right in it which could be the subject of injury. As, however, a property may be gained in such an animal, it will be necessary to advert to the facts set forth, to see whether they are such as could give a legal interest in the creature, that was the cause of the suit below. Finding, hunting, and pursuit, are all that the plaint enumerates. To create a title to an animal feroe naturor, occupancy is indispensable. It is the only mode recognized by our system. 2 Black. Com. 403. The reason of the thing shows it to be so. For whatever is not appropriated by positive institutions, can be exclusively possessed by natural law alone. Occupancy is the sole method this code acknowledges. Authorities are not wanting to this effect. Just. lib. 2, tit. 1, sec. 12. “Feroe igitur bestioe, simul atque ab aliiquo captoe fuerint jure gentium statim illius esse incipiunt.” There must be a taking; and even that is not in all cases sufficient, for in the same section he observes, “Quicquid autem corum ceperis, eo usque tuum esse intelligitur, donec tua custodia coercetur; cum vero tuam evaserit custodiam, et in libertatem naturalem sese receperit, tuam esse desinit, et rursus occumpantis fit.” It is added also that this natural liberty may be regained even if in sight of the pursuer, “ita sit, ut difficilis sit ejus persecutio.” In section 13, it is laid down, that even wounding will not give a right of property in an animal that is unreclaimed. For, notwithstanding the wound, “multa accidere soleant ut eam non capias,” and “non aliter tuam esse quam si eam ceperis.” Fleta (b. 3, p. 175) and Bracton (b. 2, ch. 1, p. 86) are in unison with the Roman law-giver. It is manifest, then, from the record, that there was no title in Post, and the action, therefore, not maintainable.




Mr. Colden, contra. I admit, with Fleta, that pursuit alone does not give a right of property in animals feroe naturoe, and I admit also that occupancy is to give a title to them. But, then, what kind of occupancy? And here I shall contend it is not such as is derived from manucaption alone. In Puffendorf’s Law of Nature and of Nations (b. 4, ch. 4, sec. 5, n. 6, by Barbeyrac), notice is taken of this principle of taking possession. It is there combatted, nay, disproved; and in b. 4, ch. 6, sec. 2, n. 2. lbid. sec. 7, n. 2, demonstrated that manucaption is only one of many means to declare the intention of exclusively appropriating that which was before in a state of nature. Any continued act which does this, is equivalent to occupancy. Pursuit, therefore, by a person who starts a wild animal, gives an exclusive right whilst it is followed. It is all the possession the nature of the subject admits; it declares the intention of acquiring dominion, and is as much to be respected as manucaption itself. The contrary idea, requiring actual taking, proceeds, as Mr. Barbeyrac observes, in Puffendorf (b. 4, ch. 6, sec. 10), on a “false notion of possession.”




Mr. Sanford, in reply. The only authority relied on is that of an annotator. On the question now before the court, we have taken our principles from the civil code, and nothing has been urged to impeach those quoted from the authors referred to.




Tompkins, J. delivered the opinion of the court.


This cause comes before us on a return to a certiorari directed to one of the justices of Queens county.


The question submitted by the counsel in this cause for our determination is, whether Lodowick Post, by the pursuit with his hounds in the manner alleged in his declaration, acquired such a right to, or property in, the fox, as will sustain an action against Pierson for killing and taking him away?


The cause was argued with much ability by the counsel on both sides, and presents for our decision a novel and nice question. It is admitted that a fox is an animal ferae naturae, and that property in such animals is acquired by occupancy only. These admissions narrow the discussion to the simple question of what acts amount to occupancy, applied to acquiring right to wild animals?


If we have recourse to the ancient writers upon general principles of law, the judgment below is obviously erroneous. Justinian’s Institutes, lib. 2. tit. 1. s. 13. and Fleta, lib. 3. c. 2. p. 175. adopt the principle, that pursuit alone vests no property or right in the huntsman; and that even pursuit, accompanied with wounding, is equally ineffectual for that purpose, unless the animal be actually taken. The same principle is recognised by Bracton, lib. 2. c. 1. p. 8.


Puffendorf, lib. 4. c. 6. s. 2. and 10, defines occupancy of beasts ferae naturae, to be the actual corporal possession of them, and Bynkershoek is cited as coinciding in this definition. It is indeed with hesitation that Puffendorf affirms that a wild beast mortally wounded, or greatly maimed, cannot be fairly intercepted by another, whilst the pursuit of the person inflicting the wound continues. The foregoing authorities are decisive to show that mere pursuit gave Post no legal right to the fox, but that he became the property of Pierson, who intercepted and killed him.


It therefore only remains to inquire whether there are any contrary principles, or authorities, to be found in other books, which ought to induce a different decision. Most of the cases which have occurred in England, relating to property in wild animals, have either been discussed and decided upon the principles of their positive statute regulations, or have arisen between the huntsman and the owner of the land upon which beasts ferae naturae have been apprehended; the former claiming them by title of occupancy, and the latter ratione soli.Little satisfactory aid can, therefore, be derived from the English reporters.


Barbeyrac, in his notes on Puffendorf, does not accede to the definition of occupancy by the latter, but, on the contrary, affirms, that actual bodily seizure is not, in all cases, necessary to constitute possession of wild animals. He does not, however, describe the acts which, according to his ideas, will amount to an appropriation of such animals to private use, so as to exclude the claims of all other persons, by title of occupancy, to the same animals; and he is far from averring that pursuit alone is sufficient for that purpose. To a certain extent, and as far as Barbeyrac appears to me to go, his objections to Puffendorf’s definition of occupancy are reasonable and correct. That is to say, that actual bodily seizure is not indispensable to acquire right to, or possession of, wild beasts; but that, on the contrary, the mortal wounding of such beasts, by one not abandoning his pursuit, may, with the utmost propriety, be deemed possession of him; since, thereby, the pursuer manifests an unequivocal intention of appropriating the animal to his individual use, has deprived him of his natural liberty, and brought him within his certain control. So also, encompassing and securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their natural liberty, and render escape impossible, may justly be deemed to give possession of them to those persons who, by their industry and labour, have used such means of apprehending them. Barbeyrac seems to have adopted, and had in view in his notes, the more accurate opinion of Grotius, with respect to occupancy. That celebrated author, lib. 2. c. 8. s. 3. p. 309. speaking of occupancy, proceeds thus: “Requiritur autem corporalis quaedam possessio ad dominium adipiscendum; atque ideo, vulnerasse non sufficit.” But in the following section he explains and qualifies this definition of occupancy: “Sed possessio illa potest non solis manibus, sed instrumentis, ut decipulis, retibus, laqueis dum duo adsint: primum ut ipsa instrumenta sint in nostra potestate, deinde ut fera, ita inclusa sit, ut exire inde nequeat.” This qualification embraces the full extent of Barbeyrac’s objection to Puffendorf’s definition, and allows as great a latitude to acquiring property by occupancy, as can reasonably be inferred from the words or ideas expressed by Barbeyrac in his notes. The case now under consideration is one of mere pursuit, and presents no circumstances or acts which can bring it within the definition of occupancy by Puffendorf, or Grotius, or the ideas of Barbeyrac upon that subject.


The case cited from 11 Mod. 74–130. I think clearly distinguishable from the present; inasmuch as there the action was for maliciously hindering and disturbing the plaintiff in the exercise and enjoyment of a private franchise; and in the report of the same case, 3 Salk. 9. Holt, Ch. J. states, that the ducks were in the plaintiff’s decoy pond, and so in his possession, from which it is obvious the court laid much stress in their opinion upon the plaintiff’s possession of the ducks, ratione soli.


We are the more readily inclined to confine possession or occupancy of beasts ferae naturae, within the limits prescribed by the learned authors above cited, for the sake of certainty, and preserving peace and order in society. If the first seeing, starting, or pursuing such animals, without having so wounded, circumvented or ensnared them, so as to deprive them of their natural liberty, and subject them to the control of their pursuer, should afford the basis of actions against others for intercepting and killing them, it would prove a fertile source of quarrels and litigation.


However uncourteous or unkind the conduct of Pierson towards Post, in this instance, may have been, yet his act was productive of no injury or damage for which a legal remedy can be applied. We are of opinion the judgment below was erroneous, and ought to be reversed.




Livingston, J.


My opinion differs from that of the court. Of six exceptions, taken to the proceedings below, all are abandoned except the third, which reduces the controversy to a single question.


Whether a person who, with his own hounds, starts and hunts a fox on waste and uninhabited ground, and is on the point of seizing his prey, acquires such an interest in the animal, as to have a right of action against another, who in view of the huntsman and his dogs in full pursuit, and with knowledge of the chase, shall kill and carry him away?


This is a knotty point, and should have been submitted to the arbitration of sportsmen, without poring over Justinian, Fleta, Bracton, Puffendorf, Locke, Barbeyrac, or Blackstone, all of whom have been cited; they would have had no difficulty in coming to a prompt and correct conclusion. In a court thus constituted, the skin and carcass of poor reynard would have been properly disposed of, and a precedent set, interfering with no usage or custom which the experience of ages has sanctioned, and which must be so well known to every votary of Diana.But the parties have referred the question to our judgment, and we must dispose of it as well as we can, from the partial lights we possess, leaving to a higher tribunal, the correction of any mistake which we may be so unfortunate as to make. By the pleadings it is admitted that a fox is a “wild and noxious beast.” Both parties have regarded him, as the law of nations does a pirate, “hostem humani generis,” and although “de mortuis nil nisi bonum,” be a maxim of our profession, the memory of the deceased has not been spared. His depredations on farmers and on barn yards, have not been forgotten; and to put him to death wherever found, is allowed to be meritorious, and of public benefit. Hence it follows, that our decision should have in view the greatest possible encouragement to the destruction of an animal, so cunning and ruthless in his career. But who would keep a pack of hounds; or what gentleman, at the sound of the horn, and at peep of day, would mount his steed, and for hours together, “sub jove frigido,” or a vertical sun, pursue the windings of this wily quadruped, if, just as night came on, and his stratagems and strength were nearly exhausted, a saucy intruder, who had not shared in the honours or labours of the chase, were permitted to come in at the death, and bear away in triumph the object of pursuit? Whatever Justinian may have thought of the matter, it must be recollected that his code was compiled many hundred years ago, and it would be very hard indeed, at the distance of so many centuries, not to have a right to establish a rule for ourselves. In his day, we read of no order of men who made it a business, in the language of the declaration in this cause, “with hounds and dogs to find, start, pursue, hunt, and chase,” these animals, and that, too, without any other motive than the preservation of Roman poultry; if this diversion had been then in fashion, the lawyers who composed his institutes, would have taken care not to pass it by, without suitable encouragement. If any thing, therefore, in the digests or pandects shall appear to militate against the defendant in error, who, on this occasion, was the foxhunter, we have only to say tempora mutantur; and if men themselves change with the times, why should not laws also undergo an alteration?


It may be expected, however, by the learned counsel, that more particular notice be taken of their authorities. I have examined them all, and feel great difficulty in determining, whether to acquire dominion over a thing, before in common, it be sufficient that we barely see it, or know where it is, or wish for it, or make a declaration of our will respecting it; or whether, in the case of wild beasts, setting a trap, or lying in wait, or starting, or pursuing, be enough; or if an actual wounding, or killing, or bodily tact and occupation be necessary. Writers on general law, who have favoured us with their speculations on these points, differ on them all; but, great as is the diversity of sentiment among them, some conclusion must be adopted on the question immediately before us. After mature deliberation, I embrace that of Barbeyrac, as the most rational, and least liable to objection. If at liberty, we might imitate the courtesy of a certain emperor, who, to avoid giving offence to the advocates of any of these different doctrines, adopted a middle course, and by ingenious distinctions, rendered it difficult to say (as often happens after a fierce and angry contest) to whom the palm of victory belonged. He ordained, that if a beast be followed with large dogs and hounds, he shall belong to the hunter, not to the chance occupant; and in like manner, if he be killed or wounded with a lance or sword; but if chased with beagles only, then he passed to the captor, not to the first pursuer. If slain with a dart, a sling, or a bow, he fell to the hunter, if still in chase, and not to him who might afterwards find and seize him.


Now, as we are without any municipal regulations of our own, and the pursuit here, for aught that appears on the case, being with dogs and hounds of imperial stature, we are at liberty to adopt one of the provisions just cited, which comports also with the learned conclusion of Barbeyrac, that property in animals ferae naturae may be acquired without bodily touch or manucaption, provided the pursuer be within reach, or have a reasonable prospect (which certainly existed here) of taking, what he has thus discovered an intention of converting to his own use.


When we reflect also that the interest of our husbandmen, the most useful of men in any community, will be advanced by the destruction of a beast so pernicious and incorrigible, we cannot greatly err, in saying, that a pursuit like the present, through waste and unoccupied lands, and which must inevitably and speedily have terminated in corporal possession, or bodily seisin, confers such a right to the object of it, as to make any one a wrongdoer, who shall interfere and shoulder the spoil. The justice’s judgment ought, therefore, in my opinion, to be affirmed.



Ghen v. Rich,

8 F. 159 (D. Mass. 1881)




H. M. Knowlton, for libellant.


H. P. Harriman, for respondent.




Nelson, D. J.


This is a libel to recover the value of a fin-back whale. The libellant lives in Provincetown and the respondent in Wellfleet. The facts, as they appeared at the hearing, are as follows:



In the early spring months the easterly part of Massachusetts bay is frequented by the species of whale known as the fin-back whale. Fishermen from Provincetown pursue them in open boats from the shore, and shoot them with bomb-lances fired from guns made expressly for the purpose. When killed they sink at once to the bottom, but in the course of from one to three days they rise and float on the surface. Some of them are picked up by vessels and towed into Provincetown. Some float ashore at high water and are left stranded on the beach as the tide recedes. Others float out to sea and are never recovered. The person who happens to find them on the beach usually sends word to Provincetown, and the owner comes to the spot and removes the blubber. The finder usually receives a small salvage for his services. Try-works are established in Provincetown for trying out the oil. The business is of considerable extent, but, since it requires skill and experience, as well as some outlay of capital, and is attended with great exposure and hardship, few persons engage in it. The average yield of oil is about 20 barrels to a whale. It swims with great swiftness, and for that reason cannot be taken by the harpoon and line. Each boat’s crew engaged in the business has its peculiar mark or device on its lances, and in this way it is known by whom a whale is killed.


The usage on Cape Cod, for many years, has been that the person who kills a whale in the manner and under the circumstances described, owns it, and this right has never been disputed until this case. The libellant has been engaged in this business for ten years past. On the morning of April 9, 1880, in Massachusetts bay, near the end of Cape Cod, he shot and instantly killed with a bomb-lance the whale in question. It sunk immediately, and on the morning of the 12th was found stranded on the beach in Brewster, within the ebb and flow of the tide, by one Ellis, 17 Miles from the spot where it was killed. Instead of sending word to Provincetown, as is customary, Ellis advertised the whale for sale at auction, and sold it ot the respondent, who shipped off the blubber and tried out the oil. The libellant heard of the finding of the whale on the morning of the 15th, and immediately sent one of his boat’s crew to the place and claimed it. Neither the respondent nor Ellis knew the whale had been killed by the libellant, but they knew or might have known, if they had wished, that it had been shot and killed with a bomb-lance, by some person engaged in this species of business.





The libellant claims title to the whale under this usage. The respondent insists that this usage is invalid. It was decided by Judge Sprague, in Taber v. Jenny, 1 Sprague, 315, that when a whale has been killed, and is anchored and left with marks of appropriation, it is the property of the captors; and if it is afterwards found, still anchored, by another ship, there is no usage or principle of law by which the property of the original captors is diverted, even though the whale may have dragged from its anchorage. The learned judge says:



When the whale had been killed and taken possession of by the boat of the Hillman, (the first taker,) it became the property of the owners of that ship, and all was done which was the practicable in order to secure it. They left it anchored, with unequivocal marks of appropriation.





In Bartlett v. Budd, 1 Low. 223, the facts were these: The first officer of the libellant’s ship killed a whale in the Okhotsk sea, anchored it, attached a waif to the body, and then left it and went ashore at some distance for the night. The next morning the boats of the respondent’s ship found the whale adrift, the anchor not holding, the cable coiled round the body, and no waif or irons attached to it. Judge Lowell held that, as the libellants had killed and taken actual possession of the whale, the ownership vested in them. In his opinion the learned judge says:



A whale, being ferae naturae, does not become property until a firm possession has been established by the taker. But when such possession has become firm and complete, the right of property is clear, and has all the characteristics of property.





He doubted whether a usage set up but not proved by the respondents, that a whale found adrift in the ocean is the property of the finder, unless the first taker should appear and claim it before it is cut in, would be valid, and remarked that “there would be great difficulty in upholding a custom that should take the property of A. and give it to B., under so very short and uncertain a substitute for the statute of limitations, and one so open to fraud and deceit.” Both the cases cited were decided without reference to usage, upon the ground that the property had been acquired by the first taker by actual possession and appropriation.


In Swift v. Gifford, 1 Low, 110, Judge Lowell decided that a custom among whalemen in the Arctic seas, that the iron holds the whale was reasonable and valid. In that case a boat’s crew from the resondent’s ship pursued and struck a whale in the Arctic ocean, and the harpoon and the line attached to it remained in the whale, but did not remain fast to the boat. A boat’s crew from the libellant’s ship continued the pursuit and captured the whale, and the master of the respondent’s ship claimed it on the spot. It was held by the learned judge that the whale belonged to the respondents. It was said by Judge Sprague, in Bourne v. Ashley, an unprinted case referred to by Judge Lowell in Swift v. Gifford, that the usage for the first iron, whether attached to the boat or not, to hold the whale was fully established; and he added that, although local usages of a particular port ought not to be allowed to set aside the general maritime law, this objection did not apply to a custom which embraced an entire business, and had been concurred in for a long time by every one engaged in the trade.


In Swift v. Gifford, Judge Lowell also said:



The rule of law invoked in this case is one of very limited application. The whale fishery is the only branch of industry of any importance in which it is likely to be much used, and if a usage is found to prevail generally in that business, it will not be open to the objection that it is likely to disturb the general understanding of mankind by the interposition of an arbitrary exception.





I see no reason why the usage proved in this case is not as reasonable as that sustained in the cases cited. Its application must necessarily be extremely limited, and can affect but a few persons. It has been recognized and acquiesced in for many years. It requires in the first taker the only act of appropriation that is possible in the nature of the case. Unless it is sustained, this branch of industry must necessarily cease, for no person would engage in it if the fruits of his labor could be appropriated by any chance finder. It gives reasonable salvage for securing or reporting the property. That the rule works well in practice is shown by the extent of the industry which has grown up under it, and the general acquiescence of a whole community interested to dispute it. It is by means clear that without regard to usage the common law would not reach the same result. That seems to be the effect of the decisions in Taber v. Jenny and Bartlett v. Budd. If the fisherman does all that is possible to do to make the animal his own, that would seem to be sufficient. Such a rule might well be applied in the interest of trade, there being no usage or custom to the contrary. Holmes, Com. Law, 217. But be that as it may, I hold the usage to be valid, and that the property in the whale was in the libelant.


The rule of damages is the market value of the oil obtained from the whale, less the cost of trying it out and preparing it for the market, with interest on the amount so ascertained from the date of conversion. As the question is new and important, and the suit is contested on both sides, more for the purpose of having it settled than for the amount involved, I shall give no costs.


Decree for libellant for $71.05, without costs.



From Herman Melville, Moby Dick






Fast-Fish and Loose-Fish




The allusion to the waifs and waif-poles in the last chapter but one, necessitates some account of the laws and regulations of the whale fishery, of which the waif may be deemed the grand symbol and badge.


It frequently happens that when several ships are cruising in company, a whale may be struck by one vessel, then escape, and be finally killed and captured by another vessel; and herein are indirectly comprised many minor contingencies, all partaking of this one grand feature. For example,–after a weary and perilous chase and capture of a whale, the body may get loose from the ship by reason of a violent storm; and drifting far away to leeward, be retaken by a second whaler, who, in a calm, snugly tows it alongside, without risk of life or line. Thus the most vexatious and violent disputes would often arise between the fishermen, were there not some written or unwritten, universal, undisputed law applicable to all cases.


Perhaps the only formal whaling code authorized by legislative enactment, was that of Holland. It was decreed by the States-General in A.D. 1695. But though no other nation has ever had any written whaling law, yet the American fishermen have been their own legislators and lawyers in this matter. They have provided a system which for terse comprehensiveness surpasses Justinian’s Pandects and the By-laws of the Chinese Society for the Suppression of Meddling with other People’s Business. Yes; these laws might be engraven on a Queen Anne’s farthing, or the barb of a harpoon, and worn round the neck, so small are they.


I. A Fast-Fish belongs to the party fast to it.


II. A Loose-Fish is fair game for anybody who can soonest catch it.


But what plays the mischief with this masterly code is the admirable brevity of it, which necessitates a vast volume of commentaries to expound it.


First: What is a Fast-Fish? Alive or dead a fish is technically fast, when it is connected with an occupied ship or boat, by any medium at all controllable by the occupant or occupants,–a mast, an oar, a nine-inch cable, a telegraph wire, or a strand of cobweb, it is all the same. Likewise a fish is technically fast when it bears a waif, or any other recognized symbol of possession; so long as the party wailing it plainly evince their ability at any time to take it alongside, as well as their intention so to do.


These are scientific commentaries; but the commentaries of the whalemen themselves sometimes consist in hard words and harder knocks– the Coke-upon-Littleton of the fist. True, among the more upright and honorable whalemen allowances are always made for peculiar cases, where it would be an outrageous moral injustice for one party to claim possession of a whale previously chased or killed by another party. But others are by no means so scrupulous.


Some fifty years ago there was a curious case of whale-trover litigated in England, wherein the plaintiffs set forth that after a hard chase of a whale in the Northern seas; and when indeed they (the plaintiffs) had succeeded in harpooning the fish; they were at last, through peril of their lives, obliged to forsake not only their lines, but their boat itself. Ultimately the defendants (the crew of another ship) came up with the whale, struck, killed, seized, and finally appropriated it before the very eyes of the plaintiffs. And when those defendants were remonstrated with, their captain snapped his fingers in the plaintiffs’ teeth, and assured them that by way of doxology to the deed he had done, he would now retain their line, harpoons, and boat, which had remained attached to the whale at the time of the seizure. Wherefore the plaintiffs now sued for the recovery of the value of their whale, line, harpoons, and boat.


Mr. Erskine was counsel for the defendants; Lord Ellenborough was the judge. In the course of the defence, the witty Erskine went on to illustrate his position, by alluding to a recent crim. con. case, wherein a gentleman, after in vain trying to bridle his wife’s viciousness, had at last abandoned her upon the seas of life; but in the course of years, repenting of that step, he instituted an action to recover possession of her. Erskine was on the other side; and he then supported it by saying, that though the gentleman had originally harpooned the lady, and had once had her fast, and only by reason of the great stress of her plunging viciousness, had at last abandoned her; yet abandon her he did, so that she became a loose-fish; and therefore when a subsequent gentleman re-harpooned her, the lady then became that subsequent gentleman’s property, along with whatever harpoon might have been found sticking in her.


Now in the present case Erskine contended that the examples of the whale and the lady were reciprocally illustrative of each other.


These pleadings, and the counter pleadings, being duly heard, the very learned Judge in set terms decided, to wit,– That as for the boat, he awarded it to the plaintiffs, because they had merely abandoned it to save their lives; but that with regard to the controverted whale, harpoons, and line, they belonged to the defendants; the whale, because it was a Loose-Fish at the time of the final capture; and the harpoons and line because when the fish made off with them, it (the fish) acquired a property in those articles; and hence anybody who afterwards took the fish had a right to them. Now the defendants afterwards took the fish; ergo, the aforesaid articles were theirs.


A common man looking at this decision of the very learned Judge, might possibly object to it. But ploughed up to the primary rock of the matter, the two great principles laid down in the twin whaling laws previously quoted, and applied and elucidated by Lord Ellenborough in the above cited case; these two laws touching Fast-Fish and Loose-Fish, I say, will on reflection, be found the fundamentals of all human jurisprudence; For notwithstanding its complicated tracery of sculpture, the Temple of the Law, like the Temple of the Philistines, has but two props to stand on.


Is it not a saying in every one’s mouth, Possession is half of the law: that is, regardless of how the thing came into possession? But often possession is the whole of the law. What are the sinews and souls of Russian serfs and Republican slaves but Fast-Fish, whereof possession is the whole of the law? What to the rapacious landlord is the widow’s last mite but a Fast-Fish? What is yonder undetected villain’s marble mansion with a doorplate for a waif; what is that but a Fast-Fish? What is the ruinous discount which Mordecai, the broker, gets from the poor Woebegone, the bankrupt, on a loan to keep Woebegone’s family from starvation; what is that ruinous discount but a Fast-Fish? What is the Archbishop of Savesoul’s income of 100,000 pounds seized from the scant bread and cheese of hundreds of thousands of broken-backed laborers (all sure of heaven without any of Savesoul’s help) what is that globular 100,000 but a Fast-Fish. What are the Duke of Dunder’s hereditary towns and hamlets but Fast-Fish? What to that redoubted harpooneer, John Bull, is poor Ireland, but a Fast-Fish? What to that apostolic lancer, Brother Jonathan, is Texas but a Fast-Fish? And concerning all these, is not Possession the whole of the law?


But if the doctrine of Fast-Fish be pretty generally applicable, the kindred doctrine of Loose-Fish is still more widely so. That is internationally and universally applicable.


What was America in 1492 but a Loose-Fish, in which Columbus struck the Spanish standard by way of wailing it for his royal master and mistress? What was Poland to the Czar? What Greece to the Turk? What India to England? What at last will Mexico be to the United States? All Loose-Fish.


What are the Rights of Man and the Liberties of the World but Loose-Fish? What all men’s minds and opinions but Loose-Fish? What is the principle of religious belief in them but a Loose-Fish? What to the ostentatious smuggling verbalists are the thoughts of thinkers but Loose-Fish? What is the great globe itself but a Loose-Fish? And what are you, reader, but a Loose-Fish and a Fast-Fish, too?


2.1.2. Theory


From John Locke, The Second Treatise of Civil Government (1690)






Of Property.




Sec. 25. Whether we consider natural reason, which tells us, that men, being once born, have a right to their preservation, and consequently to meat and drink, and such other things as nature affords for their subsistence: or revelation, which gives us an account of those grants God made of the world to Adam, and to Noah, and his sons, it is very clear, that God, as king David says, Psal. cxv. 16. has given the earth to the children of men; given it to mankind in common. But this being supposed, it seems to some a very great difficulty, how any one should ever come to have a property in any thing: I will not content myself to answer, that if it be difficult to make out property, upon a supposition that God gave the world to Adam, and his posterity in common, it is impossible that any man, but one universal monarch, should have any property upon a supposition, that God gave the world to Adam, and his heirs in succession, exclusive of all the rest of his posterity. But I shall endeavour to shew, how men might come to have a property in several parts of that which God gave to mankind in common, and that without any express compact of all the commoners.


Sec. 26. God, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life, and convenience. The earth, and all that is therein, is given to men for the support and comfort of their being. And tho’ all the fruits it naturally produces, and beasts it feeds, belong to mankind in common, as they are produced by the spontaneous hand of nature; and no body has originally a private dominion, exclusive of the rest of mankind, in any of them, as they are thus in their natural state: yet being given for the use of men, there must of necessity be a means to appropriate them some way or other, before they can be of any use, or at all beneficial to any particular man. The fruit, or venison, which nourishes the wild Indian, who knows no enclosure, and is still a tenant in common, must be his, and so his, i.e. a part of him, that another can no longer have any right to it, before it can do him any good for the support of his life.


Sec. 27. Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.


Sec. 28. He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. No body can deny but the nourishment is his. I ask then, when did they begin to be his? when he digested? or when he eat? or when he boiled? or when he brought them home? or when he picked them up? and it is plain, if the first gathering made them not his, nothing else could. That labour put a distinction between them and common: that added something to them more than nature, the common mother of all, had done; and so they became his private right. And will any one say, he had no right to those acorns or apples, he thus appropriated, because he had not the consent of all mankind to make them his? Was it a robbery thus to assume to himself what belonged to all in common? If such a consent as that was necessary, man had starved, notwithstanding the plenty God had given him. We see in commons, which remain so by compact, that it is the taking any part of what is common, and removing it out of the state nature leaves it in, which begins the property; without which the common is of no use. And the taking of this or that part, does not depend on the express consent of all the commoners. Thus the grass my horse has bit; the turfs my servant has cut; and the ore I have digged in any place, where I have a right to them in common with others, become my property, without the assignation or consent of any body. The labour that was mine, removing them out of that common state they were in, hath fixed my property in them.


Sec. 29. By making an explicit consent of every commoner, necessary to any one’s appropriating to himself any part of what is given in common, children or servants could not cut the meat, which their father or master had provided for them in common, without assigning to every one his peculiar part. Though the water running in the fountain be every one’s, yet who can doubt, but that in the pitcher is his only who drew it out? His labour hath taken it out of the hands of nature, where it was common, and belonged equally to all her children, and hath thereby appropriated it to himself.


Sec. 30. Thus this law of reason makes the deer that Indian’s who hath killed it; it is allowed to be his goods, who hath bestowed his labour upon it, though before it was the common right of every one. And amongst those who are counted the civilized part of mankind, who have made and multiplied positive laws to determine property, this original law of nature, for the beginning of property, in what was before common, still takes place; and by virtue thereof, what fish any one catches in the ocean, that great and still remaining common of mankind; or what ambergrise any one takes up here, is by the labour that removes it out of that common state nature left it in, made his property, who takes that pains about it. And even amongst us, the hare that any one is hunting, is thought his who pursues her during the chase: for being a beast that is still looked upon as common, and no man’s private possession; whoever has employed so much labour about any of that kind, as to find and pursue her, has thereby removed her from the state of nature, wherein she was common, and hath begun a property.


Sec. 31. It will perhaps be objected to this, that if gathering the acorns, or other fruits of the earth, &c. makes a right to them, then any one may ingross as much as he will. To which I answer, Not so. The same law of nature, that does by this means give us property, does also bound that property too. God has given us all things richly, 1 Tim. vi. 12. is the voice of reason confirmed by inspiration. But how far has he given it us? To enjoy. As much as any one can make use of to any advantage of life before it spoils, so much he may by his Tabour fix a property in: whatever is beyond this, is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy. And thus, considering the plenty of natural provisions there was a long time in the world, and the few spenders; and to how small a part of that provision the industry of one man could extend itself, and ingross it to the prejudice of others; especially keeping within the bounds, set by reason, of what might serve for his use; there could be then little room for quarrels or contentions about property so established.


Sec. 32. But the chief matter of property being now not the fruits of the earth, and the beasts that subsist on it, but the earth itself; as that which takes in and carries with it all the rest; I think it is plain, that property in that too is acquired as the former. As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property. He by his labour does, as it were, inclose it from the common. Nor will it invalidate his right, to say every body else has an equal title to it; and therefore he cannot appropriate, he cannot inclose, without the consent of all his fellow-commoners, all mankind. God, when he gave the world in common to all mankind, commanded man also to labour, and the penury of his condition required it of him. God and his reason commanded him to subdue the earth, i.e. improve it for the benefit of life, and therein lay out something upon it that was his own, his labour. He that in obedience to this command of God, subdued, tilled and sowed any part of it, thereby annexed to it something that was his property, which another had no title to, nor could without injury take from him.


Sec. 33. Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there was still enough, and as good left; and more than the yet unprovided could use. So that, in effect, there was never the less left for others because of his enclosure for himself: for he that leaves as much as another can make use of, does as good as take nothing at all. No body could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst: and the case of land and water, where there is enough of both, is perfectly the same.


Sec. 34. God gave the world to men in common; but since he gave it them for their benefit, and the greatest conveniencies of life they were capable to draw from it, it cannot be supposed he meant it should always remain common and uncultivated. He gave it to the use of the industrious and rational, (and labour was to be his title to it;) not to the fancy or covetousness of the quarrelsome and contentious. He that had as good left for his improvement, as was already taken up, needed not complain, ought not to meddle with what was already improved by another’s labour: if he did, it is plain he desired the benefit of another’s pains, which he had no right to, and not the ground which God had given him in common with others to labour on, and whereof there was as good left, as that already possessed, and more than he knew what to do with, or his industry could reach to.


From Jeremy Bentham,Principles of the Civil Code




Part 1: Objects of the Civil Law.


Chapter 8: Of Property.




That we may more completely estimate the advantage of the law, let us endeavour to form a clear idea of property. We shall see that there is no natural property—that property is entirely the creature of law.


Property is only a foundation of expectation—the expectation of deriving certain advantages from the thing said to be possessed, in consequence of the relations in which one already stands to it.


There is no form, or colour, or visible trace, by which it is possible to express the relation which constitutes property. It belongs not to physics, but to metaphysics: it is altogether a creature of the mind.


To have the object in one’s hand—to keep it, to manufacture it, to sell it, to change its nature, to employ it—all these physical circumstances do not give the idea of property. A piece of cloth which is actually in the Indies may belong to me, whilst the dress which I have on may not be mine. The food which is incorporated with my own substance may belong to another, to whom I must account for its use.


The idea of property consists in an established expectation—in the persuasion of power to derive certain advantages from the object, according to the nature of the case.


But this expectation, this persuasion, can only be the work of the law. I can reckon upon the enjoyment of that which I regard as my own, only according to the promise of the law, which guarantees it to me. It is the law alone which allows me to forget my natural weakness: it is from the law alone that I can enclose a field and give myself to its cultivation, in the distant hope of the harvest.


But it may be said, What has served as a base to the law for the commencement of the operation, when it adopted the objects which it promised to protect under the name of property? In the primitive state, had not men a natural expectation of enjoying certain things—an expectation derived from sources anterior to the law?


Yes: they have had from the beginning, there have always been circumstances in which a man could secure by his own means the enjoyment of certain things- but the catalogue of these cases is very limited. The savage, who has hidden his prey, may hope to keep it for himself so long as his cave is not discovered; so long as he is awake to defend it; whilst he is stronger than his rivals: but this is all. How miserable and precarious is this method of possession!—Suppose, then, the slightest agreement among these savages reciprocally to respect each other’s booty: this is the introduction, of a principle, to which you can only give the name of law. A feeble and momentary expectation only results from time to time, from purely physical circumstances; a strong and permanent expectation results from law alone: that which was only a thread in a state of nature, becomes a cable, so to speak, in a state of society.


Property and law are born and must die together. Before the laws, there was no property: take away the laws, all property ceases. With respect to property, security consists in no shock or derangement being given to the expectation which has been founded on the laws, of enjoying a certain portion of good. The legislator owes the greatest respect to these expectations to which he has given birth: when he does not interfere with them, he does all that is essential to the happiness of society; when he injures them, he always produces a proportionate sum of evil.




Chapter 9: Answer to an Objection.




But perhaps the laws relating to property may be good for those who possess it, but oppressive to those who have none;—the poor are perchance more miserable than they would be without them.


The laws, in creating property, have created wealth; but with respect to poverty, it is not the work of the laws—it is the primitive condition of the human race. The man who lives only from day to day, is precisely the man in a state of nature. The savage, the poor in society, I acknowledge, obtain nothing but by painful labour; but in a state of nature, what could he obtain but at the price of his toil? Has not hunting its fatigues, fishing its dangers, war its uncertainties? And if man appear to love this adventurous life—if he have an instinct greedy of these kinds of perils—if the savage rejoice in the delights of an idleness so dearly purchased—ought it to be concluded that he is more happy than our day labourers? No: the labour of these is more uniform, but the reward is more certain ; the lot of the woman is more gentle, infancy and old age have more resources; the species multiplies in a proportion a thousand times greater, and this alone would suffice to show on which side is the superiority of happiness. Hence the laws, in creating property, have been benefactors to those who remain in their original poverty. They participate more or less in the pleasures, advantages, and resources of civilized society: their industry and labour place them among the candidates for fortune: they enjoy the pleasures of acquisition: hope mingles with their labours. The security which the law gives them, is this of little importance? Those who look from above at the inferior ranks, see all objects less than they really are; but at the base of the pyramid, it is the summit which disappears in its turn. So far from making these comparisons, they dream not of them; they are not tormented with impossibilities: so, that all things considered, the protection of the laws contributes as much to the happiness of the cottage, as to the security of the palace. It is surprising that so judicious a writer as Beccaria should have inserted, in a work dictated by the soundest philosophy, a doubt subversive of the social order. The right of property, says he, is a terrible right, and may not perhaps be necessary. Upon this right, tyrannical and sanguinary laws have been founded. It has been most frightfully abused; but the right itself presents only ideas of pleasure, of abundance, and of security. It is this right which has overcome the natural aversion, to labour which has bestowed on man the empire of the earth—which has led nations to give up their wandering habits—which has created a love of country and of posterity. To enjoy quickly—to enjoy without punishment,—this is the universal desire of man; this is the desire which is terrible, since it arms all those who possess nothing, against those who possess any thing. But the law, which restrains this desire, is the most splendid triumph of humanity over itself.




Chapter 10: Analysis of the Evils Resulting from Attacks upon Property.




We have already seen, that subsistence depends upon the laws, which secure to the labourers the products of their labour; but it would be proper more exactly to analyze the evils which result from violations of property. They may be reduced to four heads:—


1. Evil of Non-possession.—If the acquisition of a portion of riches be a good, the non-possession of it must be an evil; though a negative evil, and nothing more. Hence, although men in the condition of primitive poverty may not have felt the special privation of wealth, which was unknown to them, it is clear that they at least had not all the happiness which results from it, and of which we are in the enjoyment.


The loss of a portion of good, should it even remain always unknown, would yet be a loss. If by calumny you prevent my friend from conferring a benefit upon me which I did not expect, do you not do me an injury? In what consists this injury? In the negative evil which results to me, of not possessing what I otherwise should have possessed but for your calumny.


2. Pain of Loss.—Every thing which I actually possess, or which I ought to possess, I consider in my imagination as about to belong to me for ever: I make it the foundation of my expectation—of the expectation of those who depend upon me, and the support of my plan of life. Each part of my property may possess, in my estimation, besides its intrinsic value, a value in affection—as the inheritance of my ancestors, the reward of my labours, or the future benefit of my heirs. Every thing may recall to me that portion of myself which I have spent there—my cares, my industry, my economy—which put aside present pleasures, in order to extend them over the future; so that our property may become, as it were, part of ourselves, and cannot be taken from us without wounding us to the quick.


3. Fear of Loss.—To regret for what is lost, uneasiness respecting what is possessed joins itself, and even for what it is possible to acquire; for most of the objects which are necessary for subsistence and abundance, being perishable matters, future acquisitions form a necessary supplement to present possessions.


When insecurity reaches a certain point, the fear of loss hinders the enjoyment of what is possessed. The care of preserving condemns us to a thousand sad and painful precautions, always liable to fail. Treasures fly away, or are buried: enjoyment becomes sombre, stealthy, and solitary: it fears, by the exhibition of itself, to direct cupidity to its prey.


4. Destruction of Industry.—If I despair of enjoying the fruits of my labour, I shall only think of living from day to day: I shall not undertake labours which will only benefit my enemies. But besides this, in order to the existence of labour, the will alone is not sufficient: instruments are wanting: whilst these are being provided, subsistence is necessary. A single loss may render me unable to act, without depriving me of the disposition to labour—without having paralyzed my will. Hence the three first of these evils affect the passive faculties of the individual, whilst the fourth extends to his active faculties, and strikes them with numbness.


It is perceived in this analysis, that the two first of these evils do not extend beyond the individual injured; but the two latter expand themselves, and occupy an indefinite space in society. An attack made upon the property of one individual spreads alarm among the other proprietors: this feeling is communicated from one to another, and the contagion may at last spread over the whole body of the state.


For the development of industry, the union of power and will is required. Will depends upon encouragement—power upon means.—These means are called, in the language of political economy, productive capital.—With regard to a single individual, his capital may be destroyed, without his industrious disposition being destroyed, or even weakened. With regard to a nation, the destruction of its productive capital is impossible: but long before this fatal term arrives, the mischief would have reached the will; and the spirit of industry would fall under a terrible marasmus, in the midst of the natural resources presented by a rich and fertile soil. The will, however, is excited by so many stimulants, that it resists a multitude of discouragements and losses: a passing calamity, how great soever it may be, does not destroy the spirit of industry. This has been seen springing up again after destructive wars, which have impoverished nations, like a robust oak, which in a few years repairs the injuries, inflicted by the tempest, and covers itself with new branches. Nothing less is requisite for freezing up industry, than the operation of a permanent domestic cause, such as a tyrannical government, a bad legislation, an intolerant religion which repels men from each other, or a minute superstition which terrifies them.


The first act of violence will produce a certain degree of apprehension—there are already some timid minds discouraged: a second outrage, quickly succeeding, will spread a more considerable alarm. The most prudent will begin to contract their enterprises, and by degrees to abandon an uncertain career. In proportion as these attacks are repeated, and the system of oppression assumes an habitual character, the dispersion augments: those who have fled are not replaced; those who remain fall into a state of langour. It is thus that, after a time, the field of industry being beaten down by storms, becomes at last a desert.


Asia Minor, Greece, Egypt, the coasts of Africa, so rich in agriculture, commerce, and population, whilst the Roman Empire flourished—what have they become under the absurd despotism of the Turk? The palaces are changed into cabins, and the cities into small towns: this government, hateful to all persons of reflection, has never understood that a state can never become rich but by an inviolable respect for property. It has possessed only two secrets for governing—to drain and to brutify its subjects. Hence the finest countries in the world, wasted, barren, or almost abandoned, can scarcely be recognised in the hands of their barbarous conquerors. For these evils need not be attributed to remote causes: civil wars, invasions, the scourges of nature—these might have dissipated the wealth, put the arts to flight, and swallowed up the cities; but the ports which have been filled up, would have been reopened, the communications re-established, the manufactures revived, the towns rebuilt, and all these ravages repaired in time, if the men had continued to be men. But they are not so, in these unhappy countries: despair, the slow but fatal effect of long-continued insecurity, has destroyed all the active powers of their souls.


If we trace the history of this contagion, we shall see that its first attacks fall upon the richest part of society. Wealth was the first object of depredation. Superfluity vanished by little and little: absolute necessity must still be provided for, notwithstanding obstacles—man must live; but when he limits his efforts to mere existence, the state languishes, and the torch of industry furnishes but a few dying sparks. Besides, abundance is never so distinct from subsistence, that the one can be injured without a dangerous attack upon the other: whilst some lose only what is superfluous, others lose what is necessary. From the infinitely complicated system of economical relations, the wealth of one part of the citizens is uniformly the source from which a more numerous party derives its subsistence.


But another, and more smiling picture, may be traced, and not less instructive, of the progress of security, and prosperity, its inseparable companion. North America presents the most striking contrast of these two states: savage nature is there placed by the side of civilization. The interior of this immense region presents only a frightful solitude: impenetrable forests or barren tracts, standing waters, noxious exhalations, venomous reptiles,—such is the land left to itself. The barbarous hordes who traverse these deserts, without fixed habitation, always occupied in the pursuit of their prey, and always filled with implacable rivalry, only meet to attack and to destroy each other; so that the wild beasts are not so dangerous to man, as man himself. But upon the borders of these solitudes, what a different prospect presents itself! One could almost believe that one saw, at one view, the two empires of good and evil. The forests have given place to cultivated fields; the morass is dried up; the land has become solid—is covered with meadows, pastures, domestic animals, smiling and healthy habitations; cities have risen upon regular plans; wide roads are traced between them: every thing shows that men are seeking the means of drawing near to one another; they no longer dread, or seek to murder each other. The seaports are filled with vessels receiving all the productions of the earth, and serving to exchange its riches. A countless multitude, living in peace and abundance upon the fruits of their labours, has succeeded to the nations of hunters who were always struggling between war and famine. What has produced these wonders? what has renovated the surface of the earth? what has given to man this dominion over embellished, fruitful, and perfectionated nature? The benevolent genius is Security. It is security which has wrought out this great metamorphosis. How rapid have been its operations! It is scarcely two centuries since William Penn reached these savage wilds with a colony of true conquerors; for they were men of peace, who sullied not their establishment by force, and who made themselves respected only by acts of benevolence and justice.


Carol M. Rose, Possession as the Origin of Property, 52 U. Chi. L. Rev. 73 (1985)




How do things come to be owned? This is a fundamental puzzle for anyone who thinks about property. One buys things from other owners, to be sure, but how did the other owners get those things? Any chain of ownership or title must have a first link. Someone had to do something to anchor that link. The law tells us what steps we must follow to obtain ownership of things, but we need a theory that tells us why these steps should do the job.


John Locke’s view, once described as “the standard bourgeois theory,” is probably the one most familiar to American students. Locke argued that an original owner is one who mixes his or her labor with a thing and, by commingling that labor with the thing, establishes ownership of it. This labor theory is appealing because it appears to rest on “desert,” but it has some problems. First, without a prior theory of ownership, it is not self-evident that one owns even the labor that is mixed with something else.1 Second, even if one does own the labor that one performs, the labor theory provides no guidance in determining the scope of the right that one establishes by mixing one’s labor with something else. Robert Nozick illustrates this problem with a clever hypothetical. Suppose I pour a can of tomato juice into the ocean: do I now own the seas?2


A number of thinkers more or less contemporary to Locke proposed another theory of the basis of ownership. According to this theory, the original owner got title through the consent of the rest of humanity (who were, taken together, the first recipients from God, the genuine original owner). Locke himself identified the problems with this theory; they involve what modern law-and-economics writers would call “administrative costs.” How does everyone get together to consent to the division of things among individuals?


The common law has a third approach, which shares some characteristics with the labor and consent theories but is distinct enough to warrant a different label. For the common law, possession or “occupancy” is the origin of property. This notion runs through a number of fascinating old cases with which teachers of property law love to challenge their students. Such inquiries into the acquisition of title to wild animals and abandoned treasure may seem purely academic; how often, after all, do we expect to get into disputes about the ownership of wild pigs or long-buried pieces of eight? These cases are not entirely silly, though. People still do find treasure-laden vessels, and statesmen do have to consider whether someone’s acts might support a claim to own the moon, for example, or the mineral nodes at the bottom of the sea. Moreover, analogies to the capture of wild animals show up time and again when courts have to deal on a nonstatutory basis with some “fugitive” resource that is being reduced to property for the first time, such as oil, gas, groundwater, or space on the spectrum of radio frequencies.


With these more serious claims in mind, then, I turn to the maxim of the common law: first possession is the root of title. Merely to state the proposition is to raise two critical questions: what counts as possession, and why is it the basis for a claim to title? In exploring the quaint old cases’ answers to these questions, we hit on some fundamental views about the nature and purposes of a property regime.


Consider Pierson v. Post, a classic wild-animal case from the early nineteenth century. Post was hunting a fox one day on an abandoned beach and almost had the beast in his gunsight when an interloper appeared, killed the fox, and ran off with the carcass. The indignant Post sued the interloper for the value of the fox on the theory that his pursuit of the fox had established his property right to it.


The court disagreed. It cited a long list of learned authorities to the effect that “occupancy” or “possession” went to the one who killed the animal, or who at least wounded it mortally or caught it in a net. These acts brought the animal within the “certain control” that gives rise to possession and hence a claim to ownership.


Possession thus means a clear act, whereby all the world understands that the pursuer has “an unequivocal intention of appropriating the animal to his individual use.” A clear rule of this sort should be applied, said the court, because it prevents confusion and quarreling among hunters (and coincidentally makes the judges’ task easier when hunters do get into quarrels).


The dissenting judge commented that the best way to handle this matter would be to leave it to a panel of sportsmen, who presumably would have ruled against the interloper. In any event, he noted that the majority’s rule would discourage the useful activity of fox hunting: who would bother to go to all the trouble of keeping dogs and chasing foxes if the reward were up for grabs to any “saucy intruder”? If we really want to see that foxes don’t overrun the countryside, we will allocate a property right-and thus the ultimate reward-to the hunter at an earlier moment, so that he will undertake the useful investment in keeping hounds and the useful labor in flushing the fox.


The problem with assigning “possession” prior to the kill is, of course, that we need a principle to tell us when to assign it. Shall we assign it when the hunt begins? When the hunter assembles his dogs for the hunt? When the hunter buys his dogs?


Pierson thus presents two great principles, seemingly at odds, for defining possession: (1) notice to the world through a clear act, and (2) reward to useful labor. The latter principle, of course, suggests a labor theory of property. The owner gets the prize when he “mixes in his labor” by hunting. On the other hand, the former principle suggests at least a weak form of the consent theory: the community requires clear acts so that it has the opportunity to dispute claims, but may be thought to acquiesce in individual ownership where the claim is clear and no objection is made.


On closer examination, however, the two positions do not seem so far apart. In Pierson, each side acknowledged the importance of the other’s principle. Although the majority decided in favor of a clear rule, it tacitly conceded the value of rewarding useful labor. Its rule for possession would in fact reward the original hunter most of the time, unless we suppose that the woods are thick with “saucy intruders.” On the other side, the dissenting judge also wanted some definiteness in the rule of possession. He was simply insisting that the acts that sufficed to give notice should be prescribed by the relevant community, namely hunters or “sportsmen.” Perhaps, then, there is some way to reconcile the clear-act and reward-to-labor principles.


The clear-act principle suggests that the common law defines acts of possession as some kind of statement. As Blackstone said, the acts must be a declaration of one’s intent to appropriate.


[Rose canvasses a few areas involving possession of land and argues they involve a search for effective communication of one’s claim.] … .


Possession as the basis of property ownership, then, seems to amount to something like yelling loudly enough to all who may be interested. The first to say, “This is mine,” in a way that the public understands, gets the prize, and the law will help him keep it against someone else who says, “No, it is mine.” But if the original communicator dallies too long and allows the public to believe the interloper, he will find that the interloper has stepped into his shoes and has become the owner.


Similar ideas of the importance of communication, or as it is more commonly called, “notice,” are implicit in our recording statutes and in a variety of other devices that force a property claimant to make a public record of her claims on pain of losing them altogether. Indeed, notice plays a part in the most mundane property-like claims to things that the law does not even recognize as capable of being reduced to ownership. “Would you please save my place?” one says to one’s neighbor in the movie line, in order to ensure that others in line know that one is coming back and not relinquishing one’s claim. In my home town of Chicago, one may choose to shovel the snow from a parking place on the street, but in order to establish a claim to it one must put a chair or some other object in the cleared space. The useful act of shoveling snow does not speak as unambiguously as the presence of an object that blocks entry.


Why, then, is it so important that property owners make and keep their communications clear? Economists have an answer: clear titles facilitate trade and minimize resource-wasting conflict. If I am careless about who comes on to a corner of my property, I invite others to make mistakes and to waste their labor on improvements to what I have allowed them to think is theirs. I thus invite a free-for-all over my ambiguously held claims, and I encourage contention, insecurity, and litigation-all of which waste everyone’s time and energy and may result in overuse or underuse of resources. But if I keep my property claims clear, others will know that they should deal with me directly if they want to use my property. We can bargain rather than fight; through trade, all items will come to rest in the hands of those who value them most. If property lines are clear, then, anyone who can make better use of my property than I can will buy or rent it from me and turn the property to his better use. In short, we will all be richer when property claims are unequivocal, because that unequivocal status enables property to be traded and used at its highest value.


Thus, it turns out that the common law of first possession, in rewarding the one who communicates a claim, does reward useful labor; the useful labor is the very act of speaking clearly and distinctly about one’s claims to property. Naturally, this must be in a language that is understood, and the acts of “possession” that communicate a claim will vary according to the audience. Thus, returning to Pierson v. Post, the dissenting judge may well have thought that fox hunters were the only relevant audience for a claim to the fox; they are the only ones who have regular contact with the subject matter. By the same token, the mid-nineteenthcentury California courts gave much deference to the mining-camp customs in adjudicating various Gold Rush claims; the Forty-Niners themselves, as those most closely involved with the subject, could best communicate and interpret the signs of property claims and would be particularly well served by a stable system of symbols that would enable them to avoid disputes.3


The point, then, is that “acts of possession” are, in the now fashionable term, a “text,” and that the common law rewards the author of that text. But, as students of hermeneutics know, the clearest text may have ambiguous subtexts. In connection with the text of first possession, there are several subtexts that are especially worthy of note. One is the implication that the text will be “read” by the relevant audience at the appropriate time. It is not always easy to establish a symbolic structure in which the text of first possession can be “published” at such a time as to be useful to anyone. Once again, Pierson v. Post illustrates the problem that occurs when a clear sign (killing the fox) comes only relatively late in the game, after the relevant parties may have already expended overlapping efforts and embroiled themselves in a dispute. Very similar problems occurred in the whaling industry in the nineteenth century: the courts expended a considerable amount of mental energy in finding signs of “possession” that were comprehensible to whalers from their own customs and that at the same time came early enough in the chase to allow the parties to avoid wasted efforts and the ensuing mutual recriminations.


Some objects of property claims do seem inherently incapable of clear demarcation-ideas, for example. In order to establish ownership of such disembodied items we find it necessary to translate the property claims into sets of secondary symbols that our culture understands. In patent and copyright law, for example, one establishes an entitlement to the expression of an idea by translating it into a written document and going through a registration process-though the unending litigation over ownership of these expressions, and over which expressions can even be subject to patent or copyright, might lead us to conclude that these particular secondary symbolic systems do not always yield widely understood “markings.”4 We also make up secondary symbols for physical objects that would seem to be much easier to mark out than ideas; even property claims in land, that most tangible of things, are now at their most authoritative in the form of written records.


It is expensive to establish and maintain these elaborate structures of secondary symbols, as indeed it may be expensive to establish a structure of primary symbols of possession. The economists have once again performed a useful service in pointing out that there are costs entailed in establishing any property system. These costs might prevent the development of any system at all for some objects, where our need for secure investment and trade is not as great as the cost of creating the necessary symbols of possession.


There is a second and perhaps even more important subtext to the “text” of first possession: the tacit supposition that there is such a thing as a “clear act,” unequivocally proclaiming to the universe one’s appropriation-that there are in fact unequivocal acts of possession, which any relevant audience will naturally and easily interpret as property claims. Literary theorists have recently written a great deal about the relativity of texts. They have written too much for us to accept uncritically the idea that a “text” about property has a natural meaning independent of some audience constituting an “interpretive community”or independent of a range of other “texts” and cultural artifacts that together form a symbolic system in which a given text must be read. It is not enough, then, for the property claimant to say simply, “It’s mine” through some act or gesture; in order for the “statement” to have any force, some relevant world must understand the claim it makes and take that claim seriously.


Thus, in defining the acts of possession that make up a claim to property, the law not only rewards the author of the “text”; it also puts an imprimatur on a particular symbolic system and on the audience that uses this system. Audiences that do not understand or accept the symbols are out of luck. For Pierson’s dissenting judge, who would have made the definition of first possession depend on a decision of hunters, the rule of first possession would have put the force of law behind the mores of a particular subgroup. The majority’s “clear act” rule undoubtedly referred to a wider audience and a more widely shared set of symbols. But even under the majority’s rule, the definition of first possession depended on a particular audience and its chosen symbolic context; some audiences win, others lose.


[Rose discusses the case of Johnson v. M’Intosh, which we will cover later in the course.]


But perhaps the deepest aspect of the common law text of possession lies in the attitude that this text strikes with respect to the relationship between human beings and nature. At least some Indians professed bewilderment at the concept of owning the land. Indeed they prided themselves on not marking the land but rather on moving lightly through it, living with the land and with its creatures as members of the same family rather than as strangers who visited only to conquer the objects of nature. The doctrine of first possession, quite to the contrary, reflects the attitude that human beings are outsiders to nature. It gives the earth and its creatures over to those who mark them so clearly as to transform them, so that no one else will mistake them for unsubdued nature.


We may admire nature and enjoy wildness, but those sentiments find little resonance in the doctrine of first possession. Its texts are those of cultivation, manufacture, and development. We cannot have our fish both loose and fast, as Melville might have said,5 and the common law of first possession makes a choice. The common law gives preference to those who convince the world that they have caught the fish and hold it fast. This may be a reward to useful labor, but it is more precisely the articulation of a specific vocabulary within a structure of symbols approved and understood by a commercial people. It is this commonly understood and shared set of symbols that gives significance and form to what might seem the quintessentially individualistic act: the claim that one has, by “possession,” separated for oneself property from the great commons of unowned things.


  1. Locke’s assertion that one owns one’s labor is quite cryptic and appears to rest on the equally cryptic assertion that one owns one’s body and thus the products of the body’s exertions. See J. LOCKE, supra note 2, s 27, at 329, s 28, at 330. Richard Epstein argues that for Locke, the reason one owns one’s body is that one occupies or possesses it; thus, this labor theory of property rests on a right established by first possession. See Epstein, Possession as the Root of Title, 13 GA. L. REV. 1221, 1227-28 (1979). But Locke himself did not argue that ownership of the body and its labors rests on possession. Indeed, the view that one owns one’s body would be equally compatible with the theory that ownership of one’s body or labor rests on the consent of mankind. Locke himself did reject the idea that property was based on the express consent of humanity. See J. LOCKE, supra note 2, s 25, at 327, s 29, at 331. For a discussion of the consent theory, see infra notes 6-7 and accompanying text.


  1. ROBERT NOZICK, ANARCHY, STATE AND UTOPIA 175 (1974). The example rests on the argument that Locke’s labor theory of property means that one acquires property by mixing what one owns (one’s labor) with what one does not own. Nozick substitutes the can of tomato juice for one’s labor.


  1. See McCurdy, Stephen J. Field and Public Land Law Development in California, 1850-1866: A Case Study of Judicial Resource Allocation in Nineteenth-Century America, 10 LAW & SOC’Y REV. 235, 239-41 (1976). McCurdy also notes, however, that there were implicit conflicts between first arrivals and latecomers to the mining areas and that the courts had to devise rules for deciding cases where one or the other group attempted to change mining-district rules to its own advantage. Id. at 242-46; cf. Umbeck, A Theory of Contract Choice and the California Gold Rush, 20 J.L. & ECON. 421, 422-28 (1977) (economic analysis of the types of claim agreements made by miners).


  1. For an extreme example of the failure of the copyright system to give clear notice of ownership of songs, see Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946), in which the court, in an opinion by Judge Frank, held that the author of “The Lord Is My Shepherd” was entitled to a trial on the merits of whether Cole Porter’s “Begin the Beguine” infringed his copyright! Cf. Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983), cert. dismissed, 104 S. Ct. 690 (1984) (computer operating system software may be copyrighted). In the case of computer software, it has been suggested that the invention might better have been handled as a patent, except that the lead time for patents is so long that it would make the “property” right useless in such a rapidly changing field-hence the choice of the more rapid copyright system. See Sanger, The Gavel Comes Down on Computer Copycats, N.Y. Times, Oct. 23, 1983, s 3, at 8, col. 1. The Apple Computer analysis further suggests that secondary systems for establishing rights in “uncatchable” property may not be immune from the disputes and overlapping use that often accompany unclear property claims. See supra note 39 and accompanying text.


  1. HERMAN MELVILLE, MOBY DICK ch. 89 (“Fast-Fish and Loose-Fish”) (1st ed. London 1851). This chapter describes some litigation over ownership of a whale that had been harpooned but got away, harpoon and all, only to be harpooned and taken by a second crew. The legal question involved the point at which the whale stopped being a “loose-fish” and became a “fast-fish”-that is, the point at which the whale became someone’s property. Melville goes on to describe a number of items (including serfs and mortgages) as “fast-fish” and a number of other items (America at Columbus’ arrival, ideas, the rights of man) as “loose-fish.”



2.1.3. Sunken Ships, Baseballs, and Artifacts


Eads v. Brazelton,

22 Ark. 499 (1861)




Appeal from Mississippi Circuit Court in Chancery. Hon. George W. Beazley, Circuit Judge.


Fowler & Stillwell, for the appellant.


Watkins & Gallagher, for appellee.




Fairchild, J.


When things that become property from being appropriated are the property of nobody, are in a state of negative community, the first finder may reduce them to possession, which is a good claim, and under the name of title by occupancy is regarded as the foundation of all property. 2 Blk’s Com. 3, 258; 1 Bouv. Am. L. 194, No. 491; Pothier Droit De Propriete, Nos. 20, 21; La. Civil Code, Art’s 3375, 3376.


Hence, wild animals, that are not property in their natural condition, may be captured, will belong to the first taker by occupancy, and will so belong while in the keeping of the taker, or person claiming under him, or while in domestication. 2 Kent. 348; Coop. Just. Lib. II, Tit. I. sec. 12; 1 Bouv. Am. L. 194, No. 492; La. Civil Code, Art. 3379.


So, the finder of things that have never been appropriated, or that have been abandoned by a former occupant, may take them into his possession as his own property; and the finder of anything casually lost is its rightful occupant against all but the real owner.


… .


From what is before us it may be taken as shown in the case that, in November, 1827, the boat named sank in the Mississippi river, within the limits of Mississippi county; that, of her cargo, shot and bundles of bar lead of an unascertained quantity, and lead in pigs to about the number of three thousand, remained in the river, wholly abandoned by the owners; that Brazelton, having information of the place where the boat sank, proceeded, in December, 1854, to ascertain its exact locality in the bed of the river, with the view of raising the sunken lead; that, in January, 1855, he arrived at the vicinity of the wreck, with his diving boat, to carry out his intention, and fastened a buoy to a weight that rested upon the wreck, with the expectation of putting his boat over it the next day, but that he was detained by other business, and by the difficulties and dangers of the work in the existing state of water, with boats like his, and by the necessity for making repairs upon his boat, and apparatus for raising the cargo, till the defendants, upon the 28th of September, 1855, caused one of their boats to stop at the shore near the wreck, to search for and find it, to place their boat over it, and to commence raising the lead.


The quantity of lead raised by the defendants was stated in their answer, and applying the price thereto, as shown by the evidence, its value was found to be four thousand, five hundred and seven dollars and ninety-six cents, for which sum the court below gave a decree, perpetuated the preliminary injunction which was granted at the beginning of the suit, and which arrested the defendants in their labor upon the lead.


After the injunction had been served, and the defendants, in obedience there-to, had withdrawn their boat from the wreck, and while the plaintiff in his turn, was engaged in bringing up the lead left by the defendants, they brought their boat back near to the plaintiff’s boat and anchored, thereby obstructing his operations, for which two of the defendants that were within the jurisdiction of the court, were brought before it for contempt in disobeying the injunction, and were fined one thousand dollars, which was, by order of the court, paid to the plaintiff for his damages from the obstruction.


… .


When Brazelton found the wreck he traced lines to it from different points on the Arkansas side of the river, so that their intersection would show the situation of the wreck, and the lines were indicated by marks upon the trees. It was upon the return of Brazelton from St. Louis with his bell boat that a float or buoy was placed by Brazelton over the wreck, and this was done with the intention of signifying the place to which the diving boat was to be dropped the next morning. It was not to be expected that such objects would remain permanent fixtures, as the wreck was in the main channel of the river, and it is evident that Brazelton considered them as guides to the situation of the wreck, as the marked trees were, as he stated to Seth Daniel, in the presence of Reese Bowen, that it would make no difference if they should be washed away, as he could find the wreck from the ranges of his lines. Brazelton does not pretend to have put his boat over the wreck, or to have had any claim to the wreck but by occupancy, which depended upon his finding it, upon his providing means for easy approaches to it by landmarks, and floats upon water, and upon his being in the neighborhood of the wreck from January to the last of September, without any other appropriation of the wreck, but with a continual assertion of his claim, and with the intention of making it good by future action. This, doubtless, he would have done in the winter of 1855, had not the sinking of the steamboat Eliza afforded the opportunity of other work to which he confined himself till June. Then he would have applied himself to the America, but the periodical rise of the river at that season prevented him from so doing, and when he was nearly ready, with his boat and machinery in order for effective labor, with favorable water for work, safe from rafts and flat and coal boats, the Submarine, No. 4, belonging to the defendants, passed him on the 28th of September, and within two days was placed over the wreck, and thenceforward the defendants were its occupants in fact, and claimed to be so by right.


… .


Neither the sinking of the America nor its locality seems to have been so obscurely remembered as the bill supposes. Captain Eads, one of the defendants, told the witness, Cunningham in 1843, according to his recollection that the America was under the tow head often mentioned in the case, which the witness afterwards was satisfied to have been the fact, from his acquaintance with the wreck after the tow head and island were washed away, and the wreck was left in the main river. Cunningham, in 1853, sounded for the wreck, and found it as he believed. Captain Swan, who was upon the America when she sunk, and who had been familiar with the river at the place of the sinking from that time, in 1827, till 1854, and who communicated to Brazelton his information of the situation of the wreck, deposed that the bank has in all the time mentioned changed but very little, though the bars have been continually changing, and that from marks upon the bank he knew where the America was, and after the island which had covered the wreck about twenty years, was washed away, he is of the impression that, from the break of water where he supposed the America to be, he could upon a clear bright day have pointed out the situation of the wreck. From the description of the place given by Captain Swan to Brazelton, he was able to find the wreck, as he afterwards told Swan that his supposition that the break in the water was caused by the wreck, had been verified. And Captain Swan further said that the pilots of the present time were as well advised, as a matter of news, of the loss of the America in the vicinity where the wreck lay, as the pilots were when she sunk.


[Several others testified that they too were able to locate the wreck based solely on information other than Brazelton’s marks.]


From these facts, and from everything in the case, we think there could have been but little difficulty in finding the wreck after the island that had so long concealed it, was washed away, and the labor or good fortune of Brazelton in ascertaining its locality affords no reason for assigning it to him as his property, aside from the legal consequences of its possession, even if courts had the power of such assignment, which we disclaim, and which we do not understand Brazelton to claim but by implication.


With reference to the tree marks of Brazelton it may be said that there is no satisfactory evidence that they were used on the part of the defendants in finding the wreck.


… .


Notwithstanding the point made by the defendant, that Brazelton had no right to the lead which the law would protect, it being the property of the original owners of the cargo, there is no room for doubt that the lead was abandoned by its owners; and even without the positive testimony of an owner of the boat and cargo in affirmation of the fact, the law would so imply from the term of the loss, and from the fact of its having been covered by an island formed upon it, which sustained trees grown to the height of thirty or forty feet. All reasonable hope of acquiring the property must have been given up from the nature of the case; and the evidence shows that during the two years that intervened between the sinking of the boat and its being covered by the tow head and island, no effort was made or design entertained to save the part of the cargo that was abandoned when the high water interrupted the labor of saving it, that was prosecuted for two weeks after the loss of the boat, save that an excluded deposition mentions that one hundred and sixteen pigs of lead were afterwards got out by residents of the neighborhood. Having saved the specie that was on board belonging to the United States, the furs and one-half of the six hundred pigs of lead, and a part of the shot, with which articles the boat was laden, and the boilers and machinery of the boat, the owners of the America seem to have contented themselves therewith; and to have wholly abandoned the remaining shot and lead.


Unlike The Barefoot, 1 Eng. Law & Eq. Rep. 664, which was the loss of lead and iron in smacks, in which Dr. Lushington held, that the property was left but not abandoned, because the place of the property was well known, and because the property was unmovable until recovered by human skill, this case, from the length of time that had passed, from the shifting nature of the bars and channel of the river in Plumb Point bend, as well as from the testimony of Captain Swan and Sellers, of William H. Johnson, and of Mr. Ruble, an owner of the boat, shows not only that the lead in the wreck was left, but that it was abandoned. But whether the property when saved would have been the property of Brazelton, or of an occupant, or of the owner, would not give right to the defendants to resist the suit of Brazelton: for if he were a finder of the wreck, as such he would be entitled to the property as owner, or to its possession as salvor; and would be protected from the interference of the defendants or other persons. And for this reason decisions in admiralty upon the conflicting claims of salvors to the possession of deserted property are authorities to be considered in the settlement of the pending controversy.


Property is said to be abandoned when it is thrown away, or its possession is voluntarily forsaken by the owner, in which case it will become the property of the first occupant; or when it is involuntarily lost or left without the hope and expectation of again acquiring it, and then it becomes the property of the finder, subject to the superior claim of the owner; except that in salvage cases, by the admiralty law, the finder may hold possession until he is paid his compensation, or till the property is submitted to legal jurisdiction for the ascertainment of the compensation. 2 Blk. Com. 9; 1 Bouv. Am. L. 195, No. 494; Coop. Just. Lib. 11, Tit. I. S. 46; Abbott on Shipping 555, Am. note; Woolrych on Waters 15; Rowe v. Berg, 1 Mass. 373; Lewis v. The Elizabeth & Jane, Ware’s Rep. 43; The Bee, Id. 344, 345; The St. Petre, Bee’s adm. 82; The Mary, 2 Whea. 126 and note (A.); Steamboat J. P. Leathers and cargo, Newb. A. D. 325; Marvin on Wreck and Salvage, s. 124, 125.


Some authorities refer to things found at sea as belonging to the finder, in distinction from wreck, that is, goods lost at sea and floated to land, or in general terms excluding the sense of derelict as used in maritime cases, or as distinguished from custom and statutory law, and in extreme cases property wholly derelict and abandoned has been held to belong to the finder against the former owner. Woolrych on Waters 14; Constable’s Case, 5 Coke 108, b; Marvin on Wreck and Salvage, sec. 131, note; 1 Bouv. Am. L. 196, No. 496; Wyman v. Hurlburt, 12 Ohio 87.


The occupation or possession of property lost, abandoned or without an owner, must depend upon an actual taking of the property and with the intent to reduce it to possession. The intent may not be that this possession shall be absolute or perpetual appropriation of the property to the use of the finder, it may be subject to the claim of the real owner, the possession may be taken for his exclusive good, or it may be taken as a means of subsistence or accumulation, according to the course of business of the parties to this suit. But in this case title by occupancy must rest upon intentional actual possession of the thing occupied.


Such is the meaning of the commentaries, from which are the following extracts:



The acquisition of things tangible by occupancy must be made corpore et animo, that is, by an outward act signifying an intention to possess. The necessity of an outward act to commence holding a thing in dominion is founded on the principle that a will or intention can not have legal effect without an outward act declaring that intention; and on the other hand, no man can be said to have the dominion over a thing which he has no intention of possessing as his. Therefore a man can not deprive others of their right to take possession of vacant property by merely considering it as his, without actually appropriating it to himself; and if he possesses it without any will of appropriating it to himself, as in the case of an idiot, it can not be considered as having ceased to be res nullius. The outward act or possession need not, however, be manual; for any species of possession, or as the ancients expressed it, custodia, is in general a sufficient appropriation.



1 Bouv. Am. L. No. 495. Possession in the civil law



implies three things; a just cause of possessing as master, the intention to possess in this quality, and detention * * without the intention there is no possession * * * *. Without the detention the intention is useless, and does not make the possession.



1 Domat’s Civil Law, by Cushing 859, No. 2, 161.



The possession of the things which we acquire by their falling into our hands, such as that which we find * * * * is acquired by the bare fact of our laying our hands upon them”



Id. No. 2,162. “Found-means, not merely discovered, but taken up.” Notes to Coop. Just. 458. “Treasures naturally belong to the finder; that is to him who moves them from the place where they are, and secures them.” Id 461.


The law is happily stated in the code of Louisiana thus: “To be able to acquire possession of a property, two distinct things are requisite: 1. The intention of possessing as owner; 2. The corporeal possession of the thing.” La. Civil Code, Art. 3399.


Pothier, with his characteristic accuracy and perspicuity, has fully stated the law upon this subject, and the rule as stated by him is to this effect; that to acquire possession of a thing there must be a desire to possess it, joined to a prehension of the thing. See in full Nos. 39 to 42 & No. 55 of his Traite De La. Possession, and Nos. 63 & 64 of his Traite Du Droit De Propriete; Marvin on Wreck & Salvage s. 127.


Such are the doctrines of the Louisiana code, of the commentators upon the Common, Roman, French and Admiralty law, and applying them to the facts of this case, we hold that Brazelton never attained to the possession of the wreck of the America, that he therefore had no title to it by occupancy, had no right upon which judicial protection could operate, none which the court below should have recognized. He had considered the wreck as his as its finder, but had not actually appropriated it to himself; his intention to possess was useless without detention of the property; he had not found the lead in the required sense of discovering it, and taking it up; he was not a finder, in that he had not moved the wrecked property, or secured it; he had the intention of possessing it as owner, but did not acquire its corporeal possession; to his desire to possess there was not joined a prehension of the thing.


Brazelton’s act of possession need not have been manual, he was not obliged to take the wreck or the lead between his hands, he might take such possession of them as their nature and situation permitted; but that his circumstances should give a legal character to his acts, making that to be possession which the law declares not to be possession, assume more than a court can sanction. Marking trees that extended across the wreck, affixing temporary buoys to it were not acts of possession; they only indicated Brazelton’s desire or intention to appropriate the property. Placing his boat over the wreck, with the means to raise its valuables, and with persistent efforts directed to raising the lead, would have been keeping the only effectual guard over it, would have been the only warning that intruders, that is, other longing occupants would be obliged to regard, would have been such acts of possession as the law would notice and protect. If Brazelton in the winter of 1855, deferred raising the lead to wreck the steamboat Eliza, he was free to do so, but must abide the legal consequences of his choice. If afterwards he could not work in the main channel of the river, owing to high water, strong wind, or to damaged boats and rigging, his ill fortune could not bend the law to his circumstances, nor could he with right warn off the defendants from the occupancy of the America, when they were as willing and more able than himself to raise the lead in her hold.


The following adjudged cases may have a bearing upon this case, and illustrate the general principles of the last cited authorities:


In Pierson v. Post, 3 Caines Rep., the plaintiff was pursuing a fox and had not got it within his control; and the defendant was held not to be liable for killing it. The plaintiff had established no claim by occupancy. His intention against the fox was unmistakable, but his act of possession was incomplete.


Marking a bee-tree was a more emphatic claim against the bees than Brazelton’s marks were upon the wreck, but was not sufficient to vest a right in the finder. Gillet v. Mason, 7 Jhs. 17.


And when one had found bees and had got leave of the owner of the tree in which they were to cut it, and take the bees, he acquired no property in the bees, he had not taken possession of them. Ferguson v. Miller, 1 Cow. 244.


It is not trespass to take wild bees or honey. Wallace v. Mease, 3 Binn. 553.


A deer had been wounded and followed with dogs for six miles, and the pursuit was given over for the night by the plaintiff, though his dogs continued the chase; the defendant and the plaintiff seized the deer together, but, because this did not show an occupancy of the deer by the plaintiff, he could not recover the skin and venison of the defendant, who killed the deer. Buster v. Newkirk, 20 Jhs. 75.


The next authority is from an accomplished admiralty judge, several of whose decisions are cited in this opinion:



The title which is acquired to property by finding, is a species of occupation; and it is laid down as a rule of law, by the civilians, that the mere discovery and sight of the thing, is not sufficient to vest in the finder a right of property in the thing found. Pothier, Traite de la Propriete No. 63. This title is acquired by possession, and this must be an actual possession. He cannot take and keep possession by an act of the will, oculis et affectu, as he may when property is transferred by consent and the possession given by a symbolical delivery. To consummate his title there must be a corporeal prehension of the thing.



The Amethyst, Davies Rep. 23.


From the foregoing quotation may be seen the inapplicability of the citation from Parson’s Merc. Laws, in the argument for Brazelton, as it relates to the delivery of bulky articles, the right of which is passed by sale.


The reference to the next case, except the extract from the opinion of the chancellor, is taken from the printed brief furnished for the defendant.


The case of Deklyn v. Davis is like the present case. About the year 1781, the British frigate “The Hussar” sank in the East river in sixty or seventy feet of water.


The bill averred that she “was abandoned and derelict,” and that “with much labor and expense” the complainants, in the summer of 1823, had discovered the “precise situation of the ship-had fastened chains around her, which they secured to floating timbers, and raised her about ten feet from her bed, and perfectly occupied the vessel, and continued their occupancy, by which she became their property. That at the approach of winter they desisted from their labors, by reason of the weather, designing to resume the work in the following season. That the occupancy of the complainants continued until the defendants, with knowledge of complainant’s rights, on the twenty-second of March, with vessel, etc., moored and anchored over and around the sunken ship. “An injunction was granted, restraining the defendants “from the further interruption of the complainants” and also enjoining them “forthwith to remove the sloops.”


“The defendants set up that the property was not abandoned or derelict when complainants took possession in 1823; that defendants, at great cost, had made preparation to raise the vessel; that they had ascertained the precise situation and position of said frigate, took possession thereof, and to occupy the same, made their marks and ranges on the adjoining shore so as to identify the spot and enable them to commence their operations thereupon at the opening of the following season.” That the complainants, “in the absence of the defendants and their men, fraudulently and forcibly took possession of the frigate;” and afterwards Davis, in the absence of Deklyn and his men, took possession of the frigate by anchoring sloops over her and surrounding her with machinery. “The right claimed by each of the contending parties is the right of occupancy. Both parties have prepared means and have taken measures to raise the sunken frigate; neither party has yet effected that object; and such being the state of the facts, the court says: Neither party has yet obtained an actual or exclusive possession of the derelict subject. * * * The complainants allege in their bill that their acts of occupancy have obtained for them a title; and the defendants, by their answer, insist that their acts preparatory to an actual possession, have been such as to give them a prior and superior right.”


But if the acts of the complainant Deklyn did not constitute any “actual or exclusive occupancy,” and if the acts of the defendant Davis were merely ” prepatory to an actual possession,’ much less did the acts of Brazelton constitute such occupancy. Hopkins, Ch. Rep. 135.


The next two cases referred to, and from one of which a lengthy extract is given, were decided by Judge Betts of New York, a very high authority in the matters treated upon: “* * * but it is in consonance with the established principles of maritime law to hold those beginning a salvage service, and who are in the successful prosecution of it entitled to be regarded as the meritorious salvors of whatever is preserved, and entitled to the sole possession of the property.” The Brig John Gilpin, Olcott’s Rep. Adm. 86.



An impression seems to have obtained, that one who finds derelict property under water or afloat, acquires a right to it by discovery, which can be maintained by a kind of continued claim, without keeping it in possession or applying constant exertions for its preservation and rescue. There is no foundation for such notion. The right of a salvor results from the fact that he has held in actual possession, or has kept near what was lost or abandoned by the owner, or placed in a dangerous exposure to destruction, with the means at command to preserve and save it, and that he is actually employing those means to that end.


The finder thus becomes the legal possessor, and acquires a privilege against the property for his salvage services which takes precedence of all other title.



Lewis v. The Elizabeth & Jane, Ware, 41; The Bee, Ware, 332; The St. Peter, Bee, 82.



* * * The fact that property is found at sea or on the coast in peril, without the presence of anyone to protect it, gives the finder a right to take it in his possession; and the law connects with such right the obligation to use the means he has at control, and with all reasonable promptitude, to save it for the owner. He can therefore be no otherwise clothed with the character of salvor than whilst he is in the occupancy of the property, and employing the necessary means for saving it.


Notorious possession, with the avowal of the object of such possession, are cardinal requisites to the creation or maintenance of the privileges of a salvor; where they do not exist, any other person may take the property with all the advantages of the first finder.



The Schooner John Wurtz, Olcott Rep. Adm. 469-471. Marvin on Wreck and Salvage, s. 128.


No reasoning, no comment can make more imperative the action of this court than it is made by the foregoing cases and authorities, taken in connection with the facts of the case, or with the allegations of the bill alone.


The decree of the circuit court of Mississippi county sitting in chancery is reversed … .



Popov v. Hayashi,

No. 400545, 2002 WL 31833731 (Cal. Superior, Dec. 18, 2002)




McCarthy, J.










In 1927, Babe Ruth hit sixty home runs. That record stood for thirty four years until Roger Maris broke it in 1961 with sixty one home runs. Mark McGwire hit seventy in 1998. On October 7, 2001, at PacBell Park in San Francisco, Barry Bonds hit number seventy three. That accomplishment set a record which, in all probability, will remain unbroken for years into the future.


The event was widely anticipated and received a great deal of attention.


The ball that found itself at the receiving end of Mr. Bond’s bat garnered some of that attention. Baseball fans in general, and especially people at the game, understood the importance of the ball. It was worth a great deal of money 1 and whoever caught it would bask, for a brief period of time, in the reflected fame of Mr. Bonds.


With that in mind, many people who attended the game came prepared for the possibility that a record setting ball would be hit in their direction. Among this group were plaintiff Alex Popov and defendant Patrick Hayashi. They were unacquainted at the time. Both men brought baseball gloves, which they anticipated using if the ball came within their reach.


They, along with a number of others, positioned themselves in the arcade section of the ballpark. This is a standing room only area located near right field. It is in this general area that Barry Bonds hits the greatest number of home runs.2 The area was crowded with people on October 7, 2001 and access was restricted to those who held tickets for that section.


Barry Bonds came to bat in the first inning. With nobody on base and a full count, Bonds swung at a slow knuckleball. He connected. The ball sailed over the right-field fence and into the arcade.


Josh Keppel, a cameraman who was positioned in the arcade, captured the event on videotape. Keppel filmed much of what occurred from the time Bonds hit the ball until the commotion in the arcade had subsided. He was standing very near the spot where the ball landed and he recorded a significant amount of information critical to the disposition of this case.


In addition to the Keppel tape, seventeen percipient witnesses testified as to what they saw after the ball came into the stands. The testimony of these witnesses varied on many important points. Some of the witnesses had a good vantage point and some did not. Some appeared disinterested in the outcome of the litigation and others had a clear bias. Some remembered the events well and others did not. Some were encumbered by prior inconsistent statements which diminished their credibility.


The factual findings in this case are the result of an analysis of the testimony of all the witnesses as well as a detailed review of the Keppel tape. Those findings are as follows:


When the seventy-third home run ball went into the arcade, it landed in the upper portion of the webbing of a softball glove worn by Alex Popov. While the glove stopped the trajectory of the ball, it is not at all clear that the ball was secure. Popov had to reach for the ball and in doing so, may have lost his balance.


Even as the ball was going into his glove, a crowd of people began to engulf Mr. Popov.3 He was tackled and thrown to the ground while still in the process of attempting to complete the catch. Some people intentionally descended on him for the purpose of taking the ball away, while others were involuntarily forced to the ground by the momentum of the crowd.


Eventually, Mr. Popov was buried face down on the ground under several layers of people. At one point he had trouble breathing. Mr. Popov was grabbed, hit and kicked. People reached underneath him in the area of his glove. Neither the tape nor the testimony is sufficient to establish which individual members of the crowd were responsible for the assaults on Mr. Popov.


The videotape clearly establishes that this was an out of control mob, engaged in violent, illegal behavior. Although some witnesses testified in a manner inconsistent with this finding, their testimony is specifically rejected as being false on a material point.4


Mr. Popov intended at all times to establish and maintain possession of the ball. At some point the ball left his glove and ended up on the ground. It is impossible to establish the exact point in time that this occurred or what caused it to occur.


Mr. Hayashi was standing near Mr. Popov when the ball came into the stands. He, like Mr. Popov, was involuntarily forced to the ground. He committed no wrongful act.5 While on the ground he saw the loose ball. He picked it up, rose to his feet and put it in his pocket.


Although the crowd was still on top of Mr. Popov, security guards had begun the process of physically pulling people off. Some people resisted those efforts. One person argued with an official and another had to be pulled off by his hair.


Mr. Hayashi kept the ball hidden. He asked Mr. Keppel to point the camera at him. At first, Mr. Keppel did not comply and Mr. Hayashi continued to hide the ball. Finally after someone else in the crowd asked Mr. Keppel to point the camera at Mr. Hayashi, Mr. Keppel complied. It was only at that point that Mr. Hayashi held the ball in the air for others to see. Someone made a motion for the ball and Mr. Hayashi put it back in his glove. It is clear that Mr. Hayashi was concerned that someone would take the ball away from him and that he was unwilling to show it until he was on videotape. Although he testified to the contrary, that portion of his testimony is unconvincing.


Mr. Popov eventually got up from the ground. He made several statements while he was on the ground and shortly after he got up which are consistent with his claim that he had achieved some level of control over the ball and that he intended to keep it. Those statements can be heard on the audio portion of the tape. When he saw that Mr. Hayashi had the ball he expressed relief and grabbed for it. Mr. Hayashi pulled the ball away.6 Security guards then took Mr. Hayashi to a secure area of the stadium.7


It is important to point out what the evidence did not and could not show. Neither the camera nor the percipient witnesses were able to establish whether Mr. Popov retained control of the ball as he descended into the crowd. Mr. Popov’s testimony on this question is inconsistent on several important points, ambiguous on others and, on the whole, unconvincing. We do not know when or how Mr. Popov lost the ball.


Perhaps the most critical factual finding of all is one that cannot be made. We will never know if Mr. Popov would have been able to retain control of the ball had the crowd not interfered with his efforts to do so. Resolution of that question is the work of a psychic, not a judge










Plaintiff has pled causes of actions for conversion, trespass to chattel, injunctive relief and constructive trust.


Conversion is the wrongful exercise of dominion over the personal property of another.8 There must be actual interference with the plaintiff’s dominion.9 Wrongful withholding of property can constitute actual interference even where the defendant lawfully acquired the property. If a person entitled to possession of personal property demands its return, the unjustified refusal to give the property back is conversion.10


The act constituting conversion must be intentionally done. There is no requirement, however, that the defendant know that the property belongs to another or that the defendant intends to dispossess the true owner of its use and enjoyment. Wrongful purpose is not a component of conversion 11


The injured party may elect to seek either specific recovery of the property or monetary damages.12


Trespass to chattel, in contrast, exists where personal property has been damaged or where the defendant has interfered with the plaintiff’s use of the property. Actual dispossession is not an element of the tort of trespass to chattel.13


In the case at bar, Mr. Popov is not claiming that Mr. Hayashi damaged the ball or that he interfered with Mr. Popov’s use and enjoyment of the ball. He claims instead that Mr. Hayashi intentionally took it from him and refused to give it back. There is no trespass to chattel. If there was a wrong at all, it is conversion.


Conversion does not exist, however, unless the baseball rightfully belongs to Mr. Popov. One who has neither title nor possession, nor any right to possession, cannot sue for conversion.14 The deciding question in this case then, is whether Mr. Popov achieved possession or the right to possession as he attempted to catch and hold on to the ball.


The parties have agreed to a starting point for the legal analysis. Prior to the time the ball was hit, it was possessed and owned by Major League Baseball. At the time it was hit it became intentionally abandoned property.15 The first person who came in possession of the ball became its new owner. 16


The parties fundamentally disagree about the definition of possession. In order to assist the court in resolving this disagreement, four distinguished law professors participated in a forum to discuss the legal definition of possession.17 The professors also disagreed.


The disagreement is understandable. Although the term possession appears repeatedly throughout the law, its definition varies depending on the context in which it is used.18 Various courts have condemned the term as vague and meaningless.19


This level of criticism is probably unwarranted.


While there is a degree of ambiguity built into the term possession, that ambiguity exists for a purpose. Courts are often called upon to resolve conflicting claims of possession in the context of commercial disputes. A stable economic environment requires rules of conduct which are understandable and consistent with the fundamental customs and practices of the industry they regulate. Without that, rules will be difficult to enforce and economic instability will result. Because each industry has different customs and practices, a single definition of possession cannot be applied to different industries without creating havoc.


This does not mean that there are no central principles governing the law of possession. It is possible to identify certain fundamental concepts that are common to every definition of possession.


Professor Roger Bernhardt 20 has recognized that “[p]ossession requires both physical control over the item and an intent to control it or exclude others from it. But these generalizations function more as guidelines than as direct determinants of possession issues. Possession is a blurred question of law and fact.”21


Professor Brown argues that “[t]he orthodox view of possession regards it as a union of the two elements of the physical relation of the possessor to the thing, and of intent. This physical relation is the actual power over the thing in question, the ability to hold and make use of it. But a mere physical relation of the possessor to the thing in question is not enough. There must also be manifested an intent to control it.”22


The task of this court is to use these principles as a starting point to craft a definition of possession that applies to the unique circumstances of this case.


We start with the observation that possession is a process which culminates in an event. The event is the moment in time that possession is achieved. The process includes the acts and thoughts of the would be possessor which lead up to the moment of possession.


The focus of the analysis in this case is not on the thoughts or intent of the actor. Mr. Popov has clearly evidenced an intent to possess the baseball and has communicated that intent to the world.23 The question is whether he did enough to reduce the reduce the ball to his exclusive dominion and control. Were his acts sufficient to create a legally cognizable interest in the ball?


Mr. Hayashi argues that possession does not occur until the fan has complete control of the ball. Professor Brian Gray, suggests the following definition ” A person who catches a baseball that enters the stands is its owner. A ball is caught if the person has achieved complete control of the ball at the point in time that the momentum of the ball and the momentum of the fan while attempting to catch the ball ceases. A baseball, which is dislodged by incidental contact with an inanimate object or another person, before momentum has ceased, is not possessed. Incidental contact with another person is contact that is not intended by the other person. The first person to pick up a loose ball and secure it becomes its possessor.”24


Mr. Popov argues that this definition requires that a person seeking to establish possession must show unequivocal dominion and control, a standard rejected by several leading cases.25 Instead, he offers the perspectives of Professor Bernhardt and Professor Paul Finkelman 26 who suggest that possession occurs when an individual intends to take control of a ball and manifests that intent by stopping the forward momentum of the ball whether or not complete control is achieved.


Professors Finkelman and Bernhardt have correctly pointed out that some cases recognize possession even before absolute dominion and control is achieved. Those cases require the actor to be actively and ably engaged in efforts to establish complete control.27 Moreover, such efforts must be significant and they must be reasonably calculated to result in unequivocal dominion and control at some point in the near future.28


This rule is applied in cases involving the hunting or fishing of wild animals 29 or the salvage of sunken vessels.30 The hunting and fishing cases recognize that a mortally wounded animal may run for a distance before falling. The hunter acquires possession upon the act of wounding the animal not the eventual capture. Similarly, whalers acquire possession by landing a harpoon, not by subduing the animal.31


In the salvage cases, an individual may take possession of a wreck by exerting as much control “as its nature and situation permit”.32 Inadequate efforts, however, will not support a claim of possession. Thus, a “sailor cannot assert a claim merely by boarding a vessel and publishing a notice, unless such acts are coupled with a then present intention of conducting salvage operations, and he immediately thereafter proceeds with activity in the form of constructive steps to aid the distressed party.”33


These rules are contextual in nature. The are crafted in response to the unique nature of the conduct they seek to regulate. Moreover, they are influenced by the custom and practice of each industry. The reason that absolute dominion and control is not required to establish possession in the cases cited by Mr. Popov is that such a rule would be unworkable and unreasonable. The “nature and situation” of the property at issue does not immediately lend itself to unequivocal dominion and control. It is impossible to wrap ones arms around a whale, a fleeing fox or a sunken ship.


The opposite is true of a baseball hit into the stands of a stadium. Not only is it physically possible for a person to acquire unequivocal dominion and control of an abandoned baseball, but fans generally expect a claimant to have accomplished as much. The custom and practice of the stands creates a reasonable expectation that a person will achieve full control of a ball before claiming possession. There is no reason for the legal rule to be inconsistent with that expectation. Therefore Gray’s Rule is adopted as the definition of possession in this case.


The central tenant of Gray’s Rule is that the actor must retain control of the ball after incidental contact with people and things. Mr. Popov has not established by a preponderance of the evidence that he would have retained control of the ball after all momentum ceased and after any incidental contact with people or objects. Consequently, he did not achieve full possession.


That finding, however, does not resolve the case. The reason we do not know whether Mr. Popov would have retained control of the ball is not because of incidental contact. It is because he was attacked. His efforts to establish possession were interrupted by the collective assault of a band of wrongdoers. 34


A decision which ignored that fact would endorse the actions of the crowd by not repudiating them. Judicial rulings, particularly in cases that receive media attention, affect the way people conduct themselves. This case demands vindication of an important principle. We are a nation governed by law, not by brute force.35


As a matter of fundamental fairness, Mr. Popov should have had the opportunity to try to complete his catch unimpeded by unlawful activity. To hold otherwise would be to allow the result in this case to be dictated by violence. That will not happen.


For these reasons, the analysis cannot stop with the valid observation that Mr. Popov has not proved full possession.36


The legal question presented at this point is whether an action for conversion can proceed where the plaintiff has failed to establish possession or title. It can An action for conversion may be brought where the plaintiff has title, possession or the right to possession.37


Here Mr. Popov seeks, in effect, a declaratory judgment that he has either possession or the right to possession. In addition he seeks the remedies of injunctive relief and a constructive trust. These are all actions in equity. A court sitting in equity has the authority to fashion rules and remedies designed to achieve fundamental fairness.


Consistent with this principle, the court adopts the following rule. Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. That pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion.


Possession can be likened to a journey down a path. Mr. Popov began his journey unimpeded. He was fast approaching a fork in the road. A turn in one direction would lead to possession of the ball he would complete the catch. A turn in the other direction would result in a failure to achieve possession he would drop the ball. Our problem is that before Mr. Popov got to the point where the road forked, he was set upon by a gang of bandits, who dislodged the ball from his grasp.


Recognition of a legally protected pre-possessory interest, vests Mr. Popov with a qualified right to possession and enables him to advance a legitimate claim to the baseball based on a conversion theory. Moreover it addresses the harm done by the unlawful actions of the crowd.


It does not, however, address the interests of Mr. Hayashi. The court is required to balance the interests of all parties.


Mr. Hayashi was not a wrongdoer. He was a victim of the same bandits that attacked Mr. Popov. The difference is that he was able to extract himself from their assault and move to the side of the road. It was there that he discovered the loose ball. When he picked up and put it in his pocket he attained unequivocal dominion and control.


If Mr. Popov had achieved complete possession before Mr. Hayashi got the ball, those actions would not have divested Mr. Popov of any rights, nor would they have created any rights to which Mr. Hayashi could lay claim. Mr. Popov, however, was able to establish only a qualified pre-possessory interest in the ball. That interest does not establish a full right to possession that is protected from a subsequent legitimate claim.


On the other hand, while Mr. Hayashi appears on the surface to have done everything necessary to claim full possession of the ball, the ball itself is encumbered by the qualified pre-possessory interest of Mr. Popov. At the time Mr. Hayashi came into possession of the ball, it had, in effect, a cloud on its title.


An award of the ball to Mr. Popov would be unfair to Mr. Hayashi. It would be premised on the assumption that Mr. Popov would have caught the ball. That assumption is not supported by the facts. An award of the ball to Mr. Hayashi would unfairly penalize Mr. Popov. It would be based on the assumption that Mr. Popov would have dropped the ball. That conclusion is also unsupported by the facts.


Both men have a superior claim to the ball as against all the world. Each man has a claim of equal dignity as to the other. We are, therefore, left with something of a dilemma.


Thankfully, there is a middle ground.


The concept of equitable division was fully explored in a law review article authored by Professor R.H. Helmholz in the December 1983 edition of the Fordham Law Review.38 Professor Helmholz addressed the problems associated with rules governing finders of lost and mislaid property. For a variety of reasons not directly relevant to the issues raised in this case, Helmholz suggested employing the equitable remedy of division to resolve competing claims between finders of lost or mislaid property and the owners of land on which the property was found.


There is no reason, however, that the same remedy cannot be applied in a case such as this, where issues of property, tort and equity intersect.


The concept of equitable division has its roots in ancient Roman law.39 As Helmholz points out, it is useful in that it “provides an equitable way to resolve competing claims which are equally strong.” Moreover, “[i]t comports with what one instinctively feels to be fair”.40


Although there is no California case directly on point, Arnold v. Producers Fruit Company (1900) 128 Cal. 637, 61 P. 283 provides some insight. There, a number of different prune growers contracted with Producer’s Fruit Company to dry and market their product. Producers did a bad job. They mixed fruit from many different growers together in a single bin and much of the fruit rotted because it was improperly treated.


When one of the plaintiffs offered proof that the fruit in general was rotten, Producers objected on the theory that the plaintiff could not prove that the prunes he contributed to the mix were the same prunes that rotted. The court concluded that it did not matter. After the mixing was done, each grower had an undivided interest in the whole, in proportion to the amount of fruit each had originally contributed.


The principle at work here is that where more than one party has a valid claim to a single piece of property, the court will recognize an undivided interest in the property in proportion to the strength of the claim.


Application of the principle of equitable division is illustrated in the case of Keron v. Cashman (1896) 33 A. 1055. In that case, five boys were walking home along a railroad track in the city of Elizabeth New Jersey. The youngest of the boys came upon an old sock that was tied shut and contained something heavy. He picked it up and swung it. The oldest boy took it away from him and beat the others with it. The sock passes from boy to boy. Each controlled it for a short time. At some point in the course of play, the sock broke open and out spilled $775 as well as some rags, cloths and ribbons.


The court noted that possession requires both physical control and the intent to reduce the property to one’s possession. Control and intent must be concurrent. None of the boys intended to take possession until it became apparent that the sock contained money. Each boy had physical control of the sock at some point before that discovery was made.


Because none could present a superior claim of concurrent control and intent, the court held that each boy was entitled to an equal share of the money. Their legal claims to the property were of equal quality, therefore their entitlement to the property was also equal.


Here, the issue is not intent, or concurrence. Both men intended to possess the ball at the time they were in physical contact with it. The issue, instead, is the legal quality of the claim. With respect to that, neither can present a superior argument as against the other.


Mr. Hayashi’s claim is compromised by Mr. Popov’s pre-possessory interest. Mr. Popov cannot demonstrate full control. Albeit for different reasons, they stand before the court in exactly the same legal position as did the five boys. Their legal claims are of equal quality and they are equally entitled to the ball.


The court therefore declares that both plaintiff and defendant have an equal and undivided interest in the ball. Plaintiff’s cause of action for conversion is sustained only as to his equal and undivided interest. In order to effectuate this ruling, the ball must be sold and the proceeds divided equally between the parties.


The parties are ordered to meet and confer forthwith before Judge Richard Kramer to come to an agreement as to how to implement this decision. If no decision is made by December 30, 2002, the parties are directed to appear before this court on that date at 9:00 am.


The court retains jurisdiction to issue orders consistent with this decision. The ball is to remain in the custody of the court until further order.


  1. It has been suggested that the ball might sell for something in excess of $1,000,000


  1. The Giants’ website contains a page which shows where each of Bonds’ home runs landed in 2001. This page was introduced into evidence and is part of the record. It shows that most of the balls are clustered in the arcade area.


  1. Ted Kobayashi, a defense expert, testified that there was insufficient reaction time for the crowd to descend on Mr. Popov. This opinion is completely unconvincing. It is premised on the assumption that people did not begin to react until the ball hit Mr. Popov’s glove. A number of witnesses testified that they began reacting while the ball was in the air. People rushed to the area where they thought the ball would land. If people were unable to anticipate where a ball will land while it is still in the air, no outfielder would ever catch a ball unless it was hit directly to him or her. Moreover, the tape itself shows people descending on Mr. Popov even as he was attempting to catch the ball.


  1. Because the probability of truth does not favor the testimony of any of these witnesses in other particulars, their entire testimony is rejected. BAJI 2.22 This finding does not apply to Mr. Hayashi.


  1. Plaintiff argues that the Keppel tape shows Mr. Hayashi biting the leg of Brian Shepard. The tape does not support such a conclusion. The testimony which suggests that a bite occurred is equally unconvincing. In addition, there is insufficient evidence that Mr. Hayashi assaulted or attempted to take the ball away from Mr. Popov.


  1. Defense counsel has attempted to characterize this encounter as one in which Mr. Popov congratulates Mr. Hayashi for getting the ball and offers him a high five. This is an argument that only a true advocate could embrace.


  1. Testimony was also received about events which occurred after baseball officials escorted Mr. Hayashi to a secure area. This evidence was admitted to allow counsel to explore the possibility that Major League Baseball retained constructive possession of the ball after it landed in the stands and later gifted it to Mr. Hayashi. Defense counsel has properly abandoned this theory. There is no evidence to support it.


  1. See generally, Witkin, Summary of California Law, Ninth Edition, section 610. See also, Fresno Air Service v. Wood (1965) 232 Cal.App.2d 801, 806, 43 Cal.Rptr. 276.


  1. Jordan v. Talbot (1961) 55 Cal.2d 597, 610, 12 Cal.Rptr. 488, 361 P.2d 20.


  1. Edwards v. Jenkins (1932)214 Cal. 713, 720, 7 P.2d 702, Witkin, supra, at section 622.


  1. Henderson v. Security National Bank (1977) 72 Cal.App.3d 764, 771, 140 Cal.Rptr. 388; Witkin, supra at section 624.


  1. Witkin, supra, at section 611.


  1. Zaslow v. Kroenert (1946) 29 Cal.2d 541, 551, 176 P.2d 1.


  1. Metropolitan Life Insurance Company v. San Francisco Bank (1943) 58 Cal.App.2d 528, 534, 136 P.2d 853; Witkin, supra, at section 617.


  1. See generally, Fugitive Baseballs and Abandoned Property: Who Owns the Home Run Ball?, Cardozo Law Review, May 2002, Paul Finkelman, (Chapman Distinguished Professor of Law).


  1. See generally, Past and Future: The Temporal Dimension in the Law of Property, (1986) 64:667;. Washington U.L. Quarterly, Professor Richard A. Epstein (James Parker Hall Professor of Law, University of Chicago; Irwin v. Phillips (1855) 5 Cal. 140; Potter v. Knowles (1855) 5 Cal. 87.


  1. They are Professor Brian E. Gray, University of California, Hastings College of the Law; Professor Roger Bernhardt, Golden Gate University School of Law; Professor Paul Finkelman, The Chapman Distinguished Professor of Law, The University of Tulsa School of Law; and Professor Jan Stiglitz, California Western School of Law.


    The discussion was held during an official session of the court convened at The University of California, Hastings College of the Law. The session was attended by a number of students and professors including one first year property law class which used this case as vehicle to understand the law of possession.


  1. Brown, The Law on Personal Property (Callaghan and Company, 3rd Edition, 1975) section 2.6, page 19.


  1. Kramer v. United States, 408 F.2d 837, 840 (C.A.8th.1969); State v. Strutt (1967) 4 Conn.Cir.Ct. 501, 236 A.2d 357, 359.


  1. Professor Bernhardt is the author of the textbook Property, Cases and Statutes, published by the West Group as well as the co-author of Real Property in a Nutshell with Professor Ann M. Burkhart.


  1. Real Property in a Nutshell, Roger Bernhardt and Ann M. Burkhart, chapter one, page 3


  1. Brown, The Law on Personal Property (Callaghan and Company, 3rd Edition, 1975) section 2.6, page 21.


  1. Literally.


  1. This definition is hereinafter referred to as Gray’s Rule.


  1. Pierson v. Post, 3 Caines R. (N.Y.1805); Young v. Hitchens, 6 Q.B. 606 (1844); State v. Shaw, (1902) 67 Ohio St. 157, 65 N.E. 875.


  1. Professor Finkelman is the author of the definitive law review article on the central issue in this case, Fugitive Baseballs and Abandoned Property: Who Owns the Home Run Ball?, Cardozo Law Review, May 2002, Paul Finkelman, (Chapman Distinguished Professor of Law).


  1. The degree of control necessary to establish possession varies from circumstance to circumstance. “The law … does not always require that one who discovers lost or abandoned property must actually have it in hand before he is vested with a legally protected interest. The law protects not only the title acquired by one who finds lost or abandoned property but also the right of the person who discovers such property, and is actively and ably engaged in reducing it to possession, to complete this process without interference from another. The courts have recognized that in order to acquire a legally cognizable interest in lost or abandoned property a finder need not always have manual possession of the thing. Rather, a finder may be protected by taking such constructive possession of the property as its nature and situation permit.” Treasure Salvors Inc. v. The Unidentified Wrecked and Abandoned Sailing Vessel (1981) 640 F.2d 560, 571 (emphasis added).


  1. Brady v. S.S. African Queen, 179 F.Supp. 321 (E.D.Va., 1960); Eads v. Brazelton, (1861) 22 Ark. 499; Treasure Salvors Inc., id. at 571.


  1. Liesner v. Wanie (1914) 156 Wis. 16, 145 N.W. 374; Ghen v. Rich, 8 F. 159 (D.Mass.1881); Pierson v. Post, 3 Caines R. (N.Y.1805); Young v. Hitchens, 6 Q.B. 606 (1844); State v. Shaw (1902) 67 Ohio St. 157, 65 N.E. 875. See also Herbert Hovenkamp and Sheldon Kurtz, The Law of Property (5th ed. West Group 2001) at page 2.


  1. Indian River Recovery Company v. The China, 645 F.Supp. 141, 144 (D.Del.1986); Treasure Salvors Inc. v. The Unidentified Wrecked and Abandoned Sailing Vessel, (1981)640 F.2d 560; Richard v. Pringle, 293 F.Supp. 981 (S.D.N.Y.1968).


  1. Swift v. Gifford, 23 F. Cas. 558 (D.Mass.1872)


  1. See note 27.


  1. Brady v. S.S. African Queen, 179 F.Supp. 321, 324 (E.D.Va., 1960)


  1. Professor Gray has suggested that the way to deal with this problem is to demand that Mr. Popov sue the people who assaulted him. This suggestion is unworkable for a number of reasons. First, it was an attack by a large group of people. It is impossible to separate out the people who were acting unlawfully from the people who were involuntarily pulled into the mix. Second, in order to prove damages related to the loss of the ball, Mr. Popov would have to prove that but for the actions of the crowd he would have achieved possession of the ball. As noted earlier, this is impossible.


  1. There are a number of ways courts can enforce the rule of law. Major League Baseball, as well as each individual team has a duty to provide security against foreseeable violence in the stands. The failure to provide that security, or worse, the tacit acceptance of some level of violence, will inevitable lead to lawsuits against the teams and the parent organization.


  1. The court is indebted to Professor Jan Stiglitz of California Western School of Law for his valuable insights and suggestions on this issue.


  1. See note 14.


  1. Equitable Division and the Law of Finders, (1983) Fordham Law Review, Professor R.H. Helmholz, University of Chicago School of Law. This article built on a student comment published in 1939. Lost, Mislaid and Abandoned Property (1939) 8 Fordham Law Review 222.


  1. Helmholz at fn. 14.


  1. Id. at 315.




A Dissection of the Popov Case




As I’ve said in class on a number of occasions, we’re doing several things in this course with the material we cover. First, we’re trying to understand in each case what the court has done. They’re writing to explain why they’ve decided as they have. Our job is to understand the language in which they’re writing and to “decode” the cases. Knowing the court’s reasons will allow us to use the case to make arguments in a future case.


Second, we’re gradually becoming familiar with a number of concepts that are used repeatedly in many substantive areas of the law. Knowing these concepts (most of which we’re pulling out and describing as Big Ideas) will help us read the language of cases and to use and to criticize cases.


Third, we’re assembling a sketch of several areas of the law that are commonly lumped together and called “property law.” The goal here is to know enough about these areas so that if confronted in practice with a real case, we’d have an appreciation for the doctrine as a whole and therefore some immediate understanding when we started to dig into the cases in our jurisdiction covering the specific issue of interest. So far, we’ve covered Finders vs. Landowners, Trespass to Land, Nuisance, and a bit of the doctrine of acquisition by first possession.


Pursuant to our first goal – simply to understand what the courts have done in a case – here’s my outline of the decision in Popov. I give the first few words of the sentence where the new heading would begin, so scan through the case as you follow along.


The first, roughly, three pages summarize the Facts.


“Plaintiff has pled causes of …” This paragraph lists the claims. Here’s what the fight is about.


“Conversion is the …” up through fn. 13: The court defines two of the claims, stating more particularly what must be shown in order to prove them.


“In the case at bar,”: A HERE section. The application of the law to the facts disposes of one claim right away.


“Conversion does not exist…” Further definition of conversion, setting up another legal question, so that we can get to another HERE section, applying this law to the facts.


“The parties have agreed…” Role of and definition of possession. (Having identified the body of law applicable to resolve the fight, the court must canvas that body of law and extract – and reconcile – the rules we’ll apply to the facts here.) The court gradually refines the question to one of what physical act is required to achieve legal possession.


“Mr. Hayashi argues …” Two competing rules are introduced to define possession. We’re still reconciling the body of law that that we will apply to our facts.


“These rules are contextual in nature…” up to “Therefore Gray’s Rule is adopted ….” Argument for the adoption of a particular rule for possession. [it’s possible to achieve full control, fans expect that’s the rule (Rose)] Now we have law to apply.


“The central tenant sic of Gray’s Rule …” HERE – but there’s a problem. The law we synthesized when applied to these facts reveals a problem – a result we don’t want.


“A decision which ignored that fact…” Policy that needs to be furthered.


“The legal question presented…” Justification of court’s POWER to do something different in this case than has been done before [note, this is different than a logical or policy-based justification]


“Consistent with this principle…” Synthesis [The court takes the rule it has adopted for possession of baseballs generally and modifies it for cases of interruption by unlawful act]


“Possession can be likened to a journey…” HERE [The court applies its new rule to this case.]


“An award of the ball to Mr. Popov would be unfair…” Problem – unmodified application of the rule adopted would be unfair to Hayashi.


“Thankfully, there is a middle ground…” Body of law potentially applicable to this problem.


“Here, the issue is not intent…” He’s making it too easy for me… but anyway: HERE.




In condensed form, we have:




Fight identification

Review of law applicable to fight

HERE (one claim goes away, another is unclear)

Review of law applicable to further elaborated understanding of fight (possession)



Survey two possible resolutions of uncertainty in law (specific def’n of possession in this case)

Argue for the adoption of one of these rules




But, application reveals policy problem

Justification of court’s power to modify law and address policy

Synthesis of new rule


But, application reveals fairness problem

Review of law applicable to this problem






Note that this is a conceptual outline of what’s going on in the case, meant to help us better understand how legal arguments are constructed. Seeing enough cases and thinking about how they’re put together will help us talk the same language as courts and lawyers do. That will help us write our own arguments and more quickly read and extract information from the writings of others.


My substantive notes on Popov, if I were making an outline, might be something more like: Popov (Cal. Super. Ct. 2002) – Bonds homerun ball case. Popov “catches,” but Hayashi winds up with it, after “illegal” violence to Popov but not perpetrated by Hayashi. Conversion – so issue is whether Popov possessed. Intent+phys poss. Physical possession unclear. Ct. considers Finkelman’s rule (stopping momentum) and Gray’s (complete control after stop, incidental contact dislodging vitiates possession), decides on Gray’s. But Popov deprived of chance to possess because of illegal contact – so “qualified right to possession,” right to try to achieve possession unimpeded. But unfair to Hayashi – so split.


It would probably be a bit shorter than that when all was said and done. But others will want a much longer description of the facts and law in the case than appears in my capsule here. What kind of notes you want depends on how much and what kind of description you need to enable you to use Popov to make an argument in another case.


Charrier v. Bell,

496 So. 2d 601 (La. App. 1 Cir. 1986)


J. Arthur Smith, III, Baton Rouge, for plaintiff-appellant.


Donald Juneau, Arlinda Locklear, Richard Dauphinais, Native American Rights Fund, Washington, D.C., for Tunica-Biloxi Tribe.


Fred G. Benton, Jr., Baton Rouge, for defendants-appellees.


Before Edwards, Watkins and Ponder 1 , JJ.




Ponder, Judge, retired.


Plaintiff appealed the trial court’s judgment denying both his claim as owner of Indian artifacts and his request for compensation for his excavation work in uncovering those artifacts under the theory of unjust enrichment. We affirm.


Plaintiff is a former Corrections Officer at the Louisiana State Penitentiary in Angola, Louisiana, who describes himself as an “amateur archeologist”. After researching colonial maps, records and texts, he concluded that Trudeau Plantation,2 near Angola, was the possible site of an ancient village of the Tunica Indians. He alleges that in 1967 he obtained the permission of Mr. Frank Hoshman, Sr., who he believed was the owner of Trudeau Plantation, to survey the property with a metal detector for possible burial locations. After locating and excavating approximately 30 to 40 burial plots, lying in a circular pattern, plaintiff notified Mr. Hoshman that he had located the Tunica village. Although the evidence is contradictory, plaintiff contends that it was at that time that Mr. Hoshman first advised that he was the caretaker, not the owner, of the property.


Plaintiff continued to excavate the area for the next three years until he had located and excavated approximately 150 burial sites, containing beads, European ceramics, stoneware, glass bottles; iron kettles, vessels and skillets; knives, muskets, gunflints, balls and shots; crucifixes, rings and bracelets; and native pottery. The excavated artifacts are estimated to weigh two to two and one-half tons.


In search of a buyer for the collection, plaintiff talked to Dr. Robert S. Neitzel of Louisiana State University, who, in turn, informed Dr. Jeffrey D. Brain of Harvard University. Dr. Brain, who was involved in a survey of archeology along the lower Mississippi River, viewed the artifacts and began discussions of their sale to the Peabody Museum of Harvard University. The discussions resulted in the lease of the artifacts to the Museum, where they were inventoried, catalogued and displayed.


Plaintiff initially informed Dr. Neitzel and Dr. Brain that he had found the artifacts in a cave in Mississippi, so as to conceal their source; later he did disclose the actual site of the find to Dr. Brain, who had expressed his concern over the title of the artifacts. Dr. Brain then obtained permission from the landowners to do further site testing and confirmed that it was the true source of the artifacts.


Confronted with the inability to sell the collection because he could not prove ownership, plaintiff filed suit against the six nonresident landowners of Trudeau Plantation, requesting declaratory relief confirming that he was the owner of the artifacts. Alternatively, plaintiff requested that he be awarded compensation under the theory of unjust enrichment for his time and expenses.


The State of Louisiana intervened in the proceeding on numerous grounds, including its duty to protect its citizens in the absence of the lawful heirs of the artifacts. In 1978, the State purchased Trudeau Plantation and the artifacts from the six landowners and agreed to defend, indemnify and hold the prior owners harmless from any and all actions.3


In 1981 the Tunica and Biloxi Indians were recognized as an American Indian Tribe by the Bureau of Indian Affairs of the Department of the Interior. The Tunica-Biloxi Indians of Louisiana, Inc. intervened in the instant suit seeking title to the artifacts and the site of the burial ground. At the same time, the tribe removed the action to federal district court, where they also filed a parallel action seeking title to the artifacts. The federal district court, on September 8, 1982, remanded the matter to state court and stayed the parallel action. Charrier v. Bell, 547 F.Supp. 580 (M.D.La.1982). The Tunicas then withdrew, without prejudice, their claim to the property where the artifacts were located and the State subordinated its claim of title or trust status over the artifacts in favor of the Tunicas.


The trial judge held that the Tunica-Biloxi Tribe is the lawful owner of the artifacts, finding that plaintiff was not entitled to the artifacts under La.C.C. art. 3423 as it read prior to amendment by Act No. 187 of 1982, which required discovery “by chance”. The judge also found that plaintiff had no claim to the artifacts on the basis of abandonment under La.C.C. art. 3421, as it read prior to the amendment by Act No. 187 of 1982, because the legal concept of abandonment does not extend to burial goods.


The trial court also denied relief under the theory of unjust enrichment, finding that any impoverishment claimed by plaintiff was a result of his attempts “for his own gain” and that his presence and actions on the property of a third party placed him in a “precarious position, if not in legal bad faith.”


The issues before this court are the adequacy of proof that the Tunica-Biloxi Indians are descendants of the inhabitants of Trudeau, the ownership of the artifacts, and the applicability of the theory of unjust enrichment.


Plaintiff first argues that the evidence that the members of the Tunica-Biloxi Indians of Louisiana, Inc., are legal descendants of the inhabitants of Trudeau Plantation was insufficient to entitle them to the artifacts. He asserts that federal recognition of the tribe “merely proves that the Tribe is the best representative of the Tunica Indians for purposes of receiving federal benefits,” and points to evidence of intermixing by the Tunica tribe with other tribes.


The fact that members of other tribes are intermixed with the Tunicas does not negate or diminish the Tunicas’ relationship to the historical tribe. Despite the fact that the Tunicas have not produced a perfect “chain of title” back to those buried at Trudeau Plantation, the tribe is an accumulation of the descendants of former Tunica Indians and has adequately satisfied the proof of descent. This is evident from the “Final Determination for Federal Acknowledgment of the Tunica-Biloxi Indian Tribe of Louisiana”, Fed. Reg. Vol. 46, No. 143, p. 38411 (July 27, 1981), which specifically found that the ” contemporary Tunica-Biloxi Indian Tribe is the successor of the historical Tunica, Ofa and Avoyel tribes, and part of the Biloxi tribe”. The evidence supports the finding that at least some portion of the Tunica tribe resided at Trudeau Plantation from 1731-1764. No contrary evidence, other than that suggesting intermixing, was presented at the trial of this case. Plaintiff’s argument is without merit.


Plaintiff next argues that the Indians abandoned the artifacts when they moved from Trudeau Plantation, and the artifacts became res nullius until found and reduced to possession by plaintiff who then became the owner.


Plaintiff contends that he has obtained ownership of the property through occupancy, which is a “mode of acquiring property by which a thing which belongs to nobody, becomes the property of the person who took possession of it, with the intention of acquiring a right of ownership upon it.” La.C.C. art. 3412, prior to amendment by Act No. 187 of 1982.4


One of the five methods of acquiring property by occupancy is “By finding (that is, by discovering precious stones on the sea shore, or things abandoned, or a treasure.)” La.C.C. art. 3414, prior to amendment by Act No. 187 of 1982. Plaintiff contends that the artifacts were abandoned by the Tunicas and that by finding them he became the owner.


Both sides presented extensive expert testimony on the history of the Tunica Indians, the French, English and Spanish occupation of the surrounding territory and the presence or absence of duress causing the Tunicas to abandon the Trudeau site.


However, the fact that the descendents or fellow tribesmen of the deceased Tunica Indians resolved, for some customary, religious or spiritual belief, to bury certain items along with the bodies of the deceased, does not result in a conclusion that the goods were abandoned. While the relinquishment of immediate possession may have been proved, an objective viewing of the circumstances and intent of the relinquishment does not result in a finding of abandonment. Objects may be buried with a decedent for any number of reasons. The relinquishment of possession normally serves some spiritual, moral, or religious purpose of the descendant/owner, but is not intended as a means of relinquishing ownership to a stranger. Plaintiff’s argument carried to its logical conclusion would render a grave subject to despoliation either immediately after interment or definitely after removal of the descendants of the deceased from the neighborhood of the cemetery.


Although plaintiff has referred to the artifacts as res nullius, under French law, the source of Louisiana’s occupancy law, that term refers specifically to such things as wild game and fish, which are originally without an owner. The term res derelictae refers to “things voluntarily abandoned by their owner with the intention to have them go to the first person taking possession.” P. Esmein, Aubry & Rau Droit Civil Francais, Vol. II, § 168, p. 46 (7th Ed.1966). Some examples of res derelictae given by Aubry and Rau include things left on public ways, in the cities or to be removed by garbage collectors.


The artifacts fall into the category of res derelictae, if subject to abandonment. The intent to abandon res derelictae must include the intent to let the first person who comes along acquire them. Obviously, such is not the case with burial goods.


French sources have generally held that human remains and burial goods located in cemeteries or burial grounds are not “treasure” under article 716 of the French Civil Code and thereby not subject to occupancy upon discovery. Blancherot v. Couilhy, Bordeaux, 6 Aug. 1806, 38 Dalloz Jurisprudence G ene rale, § 186 n. (1), p. 230 (1857). The reasoning has been that any contrary decision would lead to and promote commercial speculation and despoilment of burial grounds. The French commentator Demolombe noted the special treatment that should be given to burial goods, stating that such objects “have not been placed underground with the same intention which informs the deposit of what is called treasure, which in the latter case is, for a temporary period…. Rather, they are an emplacement for a perpetual residence therein….” 13 C. Demolombe, Cours de Code Napoleon § 37, pp. 45-46 (2c ed. 1862).


The same reasoning that the French have used to treat burial goods applies in determining if such items can be abandoned. The intent in interring objects with the deceased is that they will remain there perpetually, and not that they are available for someone to recover and possess as owner.


For these reasons, we do not uphold the transfer of ownership to some unrelated third party who uncovers burial goods. The trial court concluded that La.C.C. art. 3421, as it read prior to passage of Act No. 187 of 1982, was not intended to require that objects buried with the dead were abandoned or that objects could be acquired by obtaining possession over the objections of the descendants. We agree with this conclusion.


The cases cited by plaintiff are distinguishable.


In Touro Synagogue v. Goodwill Industries of New Orleans Area, Inc., 233 La. 26, 96 So.2d 29 (1957), the court found that a cemetery had been abandoned for burial purposes and the owner had the right to sell the property; however, the court conditioned the sale on the disinterment and reinterment (in another cemetery) of the remains of the deceased.


In Ternant v. Boudreau, 6 Rob. 488 (1844), jewelry interred with the decedent was stolen and recovered. The plaintiff claimed the ownership of all such goods on the basis that he purchased the decedent’s succession from defendant who was the heir. The court found that the plaintiff was the lawful owner of the jewelry since there had been a valid sale from the descendant. The sale evidenced an express intent by the descendant not to retain ownership of the burial goods.


The court in McEnery v. Pargoud, 10 La.Ann. 497 (1855) found that the temporary use of land as a cemetery, from 1794 to 1800, did not exclude it from commerce. There was no mention of the abandonment of the remains of the dead or the burial goods and there is no inconsistency in that decision and the opinion stated herein.


Humphreys v. Bennett Oil Corporation, 195 La. 531, 197 So. 222 (1940) merely acknowledges that descendants have a cause of action against a person who disturbs a cemetery.


Plaintiff strongly argues that a finding that Indians did not abandon the artifacts will necessarily require the federal court to conclude that the Tunicas did not abandon the real property at Trudeau Plantation and could work havoc with the stability of Louisiana land titles. However, the question of the abandonment of the real property was excluded from the case. This opinion should not be interpreted as making any expression thereon.


Plaintiff next argues that he is entitled to recover a sum of money to compensate his services and expenses on the basis of an actio de in rem verso.


The five criteria of such a claim de in rem verso are:


  1. there must be an enrichment,


  1. there must be an impoverishment,


  1. there must be a connection between the enrichment and resulting impoverishment,


  1. there must be an absence of justification or cause for the enrichment and impoverishment, and


  1. there must be no other remedy at law available to plaintiff.


Creely v. Leisure Living, Inc., 437 So.2d 816 (La.1983); Edmonston v. A-Second Mortgage Company of Slidell Inc., 289 So.2d 116 (La.1974).


We first question whether there has been an enrichment. While the nonresident landowners were “enriched” by the sale of the property to the state, the ultimate owners of the artifacts presented substantial evidence that the excavation caused substantial upset over the ruin of “ancestrial burial grounds,” rather than any enrichment.


Even if the Indians have been enriched, plaintiff has failed to prove that he has sustained the type impoverishment for which de in rem verso, may be used. His alleged loss resulted from the hours he spent excavating the artifacts, the greater portion of which activity was done at a time when plaintiff knew he was on property without the consent of the landowner. While contradictory testimony was presented regarding whether plaintiff initially had permission to go on the property, and whether that permission was adequate, by his own admission, plaintiff was informed by Hoshman that he did not own the property before the cessation of the excavating. Plaintiff’s knowledge is further evidenced by his attempts to keep the location of his work secret; he did not identify Trudeau Plantation as the location of the find for almost five years after his discovery and he failed to seek out the landowners of the property until it was required for sale negotiations, although he removed two and one half tons of artifacts from their property. Plaintiff further acknowledges that he knew that the Tunica Indians might object to his excavations.


The actio de in rem verso, explained by the Louisiana Supreme Court in Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967) and derived from the similar French action, is influenced greatly by French Civil Code articles from which our own are copied. Minyard, 205 So.2d 432. The impoverishment element in French law is met only when the factual circumstances show that it was not a result of the plaintiff’s own fault or negligence or was not undertaken at his own risk. Comment, Actio De In Rem Verso in Louisiana; Minyard v. Curtis Products, Inc., 43 Tul.L.Rev. 263, 286 (1969); Brignac v. Boisdore, 288 So.2d 31, 35 n. 2 (La.1973). Obviously the intent is to avoid awarding one who has helped another through his own negligence or fault or through action taken at his own risk. Plaintiff was acting possibly out of his own negligence, but more probably knowingly and at his own risk. Under these circumstances, plaintiff has not proven the type of impoverishment necessary for a claim of unjust enrichment.


Additionally, plaintiff has failed to show that any enrichment was unjustified, entitling him to an action to recover from the enriched party. An enrichment will be unjustified “only if no legal justification for it exists by reason of a contract or provision of law intended to permit the enrichment or the impoverishment or to bar attack upon the enrichment.” Justice A. Tate, The Louisiana Action for Unjustified Enrichment, 50 Tul.L.Rev. 883, 904 (1976). Any enrichment received by the Tribe was justified. Humphreys v. Bennett Oil Corp., 195 La. 531, 197 So. 222 (1940); Choppin v. LaBranche, 48 La.Ann. 1217, 20 So. 681 (1896). In Humphreys, the court recognized a right of action to recover damages for mental anguish and pain and suffering for desecration of a cemetery, while Choppin allowed injunctive relief against a tomb owner threatening to remove remains of the dead. Thus, descendants have a right to enjoin the disinterment of their deceased relatives, as well as to receive damages for the desecration involved. Such a right would be subverted if descendants were obliged to reimburse for the expenses of the excavation. See V & S Planting Company v. Red River Waterway Commission, 472 So.2d 331 (La.App. 3rd Cir. 1985), writ denied, 475 So.2d 1106 (1985); G. Woodward Jackson Co., Inc. v. Crispens, 414 So.2d 855 (La.App. 4th Cir. 1982). There is a legal justification for any enrichment received by the Tribe and plaintiff is not entitled to invoke the equitable theory.


For these reasons the judgment of the trial court is affirmed at appellant’s costs.




  1. Judge, Elven E. Ponder, retired, has been assigned temporarily to this court by the Supreme Court of Louisiana to fill the vacancy created by the election of Justice Luther F. Cole to the Supreme Court.


  1. Trudeau Plantation consists of approximately 150 acres located on a bluff in the southeast quadrant of the meeting of the Mississippi River and Tunica Bayou. Angola is on the other side of the bayou.


  1. Plaintiff filed a motion for litigous redemption which was granted by the trial court, but rejected by this court. The matter was remanded for trial. Charrier v. Bell, 380 So.2d 155 (La.App. 1st Cir.1979).


  1. La.C.C. art. 3412, 3414 and 3421 cited herein were repealed by Acts 1982, No. 187, § 1, effective January 1, 1984. The provisions replacing those articles reproduce their substance. Although the language has changed, they do not change the law. See specifically La.C.C. art. 3412 and 3418, as adopted by Acts 1982, No. 187, § 1 and the comments. The articles previously read as follow:



    La.C.C. art. 3412


    Occupancy is a mode of acquiring property by which a thing which belongs to nobody, becomes the property of the person who took possession of it, with the intention of acquiring a right of ownership upon it.


    La.C.C. art. 3414


    There are five ways of acquiring property by occupancy, to wit: By hunting. By fowling. By fishing. By finding (that is, by discovering precious stones on the sea shore, or things abandoned, or a treasure.)


    La.C.C. 3421. He who finds a thing which is abandoned; that is, which its owner has let [left] with the intention not to keep it any longer, becomes master of it in the same manner as if it had never belonged to any body.







2.1.4. Problems






1. What legal conclusion must be reached before we decide, as in Popov, that the first possessor of an object is its legal owner?


2. Explain why in Charrier it is difficult to decide whether the buried artifacts had been abandoned.


3. Suppose you are the judge in Eads but that you will order the same remedy as in Popov. Give your argument for doing so. That is, give a very brief discussion of the rule of law applicable to the dispute and a “HERE” section, applying that law to the facts in Eads and reaching the conclusion the court reached in Popov.







1. What legal conclusion must be reached before we decide, as in Popov, that the first possessor of an object is its legal owner?



The court must first conclude that the object is “up for grabs,” for example by having been abandoned.



2. Explain why in Charrier it is difficult to decide whether the buried artifacts had been abandoned.



The difficulty concerns whether the original owners of the artifacts, those who buried them, intended to abandon the artifacts. An intent to abandon might be defined as an intent never to recover objects left behind. If this is what we mean by intent, then the original owners abandoned the artifacts. On the other hand, the Charrier court defined an intent to abandon as an intent that an object left behind will be taken and owned by others. Under this definition, the original owners almost certainly did not intend to abandon the artifacts.



3. Suppose you are the judge in Eads but that you will order the same remedy as in Popov. Give your argument for doing so. That is, give a very brief discussion of the rule of law applicable to the dispute and a “HERE” section, applying that law to the facts in Eads and reaching the conclusion the court reached in Popov.



This case concerns two salvage operations that each claim exclusive rights to an abandoned, sunken ship. Usually the court would identify one or the other as having obtained first possession, and thus ownership, of the abandoned property. However, where it would be inequitable to award the property entirely to one party, the court should, proceeding in equity, recognize the equal strength of the parties’ claims by awarding equal rights in the disputed property.


B’s claim stems from the incomplete acts he took toward possession. Possession is defined, generally, as the intent to appropriate an object as one’s own combined with an adequate physical manifestation of that intent. What sort of physical act is required depends on the circumstances, and in particular what acts will unambiguously alert others of the possessor’s claim. In this context, clear marking, such as placing a salvage boat over the wreck would be enough.


Here, however, B placed buoys and marked trees on the shore. The buoys broke free and the markings were inadequate clearly to identify the wreck as the salvage operation of B. B did not do enough to obtain possession. However, the physical act of possession is a process, not an instantaneous occurrence, and B took substantial steps toward possession. He located and marked, after much research and toil, the location of a wreck that had, despite its valuable cargo, not been salvaged after nearly three decades at the bottom of the Mississippi River.


Though he did not immediately begin salvage operations, this case would not have arisen but for a prudent delay caused by season rises in water levels. If the law required salvage in unsafe conditions in order to guarantee the fruits of the labor and toil of discovery, loss of life and damage to property might result. We believe that B did enough to earn the right to obtain possession – an interest that would protect his ability to salvage without requiring him to engage in hasty and perilous recovery operations.


On the other hand, E did nothing wrong. The facts demonstrate he found the wreck without making use of any of B’s markings. E put his boat over the wreck and did everything the law requires to obtain title through possession.


Their claims being of equal quality and weight, E and B should be awarded equal interests in the salvage.



2.2 Common Pool Resources


2.2.1. The Problem and Theory


McConico v. Singleton,

2 Mill Const. 244, 9 S.C.L. 244 (1818)




This was an action of trespass, quare clausum fregit, and to support it the plaintiff proved, that he had warned and ordered the defendant not to hunt on his lands, and that the defendant had, notwithstanding, rode over, and hunted deer on his unenclosed and unimproved lands. The verdict of the jury was, that each party should pay their own costs; and the plaintiff now moves for a new trial on the grounds:


1st. Because the riding over the unenclosed and unimproved lands is in law a trespass, for which an action will lie, when it is contrary to the express orders of the owner.


2d. Because the verdict is in itself a nullity.




Johnson, J. delivered the opinion of the court.




Until the bringing of this action, the right to hunt on unenclosed and uncultivated lands has never been disputed, and it is well known that it has been universally exercised from the first settlement of the country up to the present time; and the time has been, when, in all probability, obedient as our ancestors were to the laws of the country, a civil war would have been the consequence of an attempt, even by the legislature, to enforce a restraint on this privilege. It was the source from whence a great portion of them derived their food and raiment, and was, to the devoted huntsman, (disreputable as the life now is,) a source of considerable profit. The forest was regarded as a common, in which they entered at pleasure, and exercised the privilege; and it will not be denied that animals, ferae naturae, are common property, and belong to the first taker. If, therefore, usage can make law, none was ever better established. This usage is also clearly recognized as a right by the several acts of the legislature on the subject; particularly the act of 1769, (Pub. Laws, 276,) which restrains the right to hunt within seven miles of the residence of the hunter. Now if the right to hunt beyond that, did not before exist, this act was nugatory; and it, canuot be believed that it was only intended to apply to such as owned a tract of land, the diameter of which would be fourteen miles. It appears to me also, that there is no rule of the English common law, at variance with this principle; but, it is said, that every entry on the lands of another is a trespass, and the least injury, as treading down grass, and the like, will support it. (1 Esp. Dig. Tit. Trespass, 221.) But there must be some actual injury to support the action. Now it will not be pretended that riding over the soil is an injury; and the forest being the common, in which the cattle of all are used to range at large, the grass, if perchance there be any, may also be regarded as common property; and surely no action will lie against a commoner for barely riding over the common. The right to hunt on unenclosed lands, I think, therefore, clearly established; but if it were doubtful, I should be strongly inclined to support it. Large standing armies are, perhaps, wisely considered as dangerous to our free institutions; the militia, therefore, necessarily constitutes our greatest security against aggression; our forest is the great field in which, in the pursuit of game, they learn the dexterous use and consequent certainty of firearms, the great and decided advantages of which have been seen and felt on too many occasions to be forgotten, or to require a recurrence to.


Having come to the conclusion, that it is the right of the inhabitants to hunt on unenclosed lands, I need not attempt to prove that the dissent or disapprobation of the owner cannot deprive him of it; for I am sure it never yet entered the mind of any man, that a right which the law gives, can be defeated at the mere will and caprice of an individual.


… .


Grimke, Colcock, Cheves, and Nott, Js. concurred. Gantt, J. dissented.



Garrett Hardin, The Tragedy of the Commons, 162 Science 1243 (1968) (excerpt)




The tragedy of the commons develops in this way. Picture a pasture open to all. It is to be expected that each herdsman will try to keep as many cattle as possible on the commons. Such an arrangement may work reasonably satisfactorily for centuries because tribal wars, poaching, and disease keep the numbers of both man and beast well below the carrying capacity of the land. Finally, however, comes the day of reckoning, that is, the day when the long-desired goal of social stability becomes a reality. At this point, the inherent logic of the commons remorselessly generates tragedy.


As a rational being, each herdsman seeks to maximize his gain. Explicitly or implicitly, more or less consciously, he asks, “What is the utility to me of adding one more animal to my herd?” This utility has one negative and one positive component.


  1. The positive component is a function of the increment of one animal. Since the herdsman receives all the proceeds from the sale of the additional animal, the positive utility is nearly +1.


  1. The negative component is a function of the additional overgrazing created by one more animal. Since, however, the effects of overgrazing are shared by all the herdsmen, the negative utility for any particular decision-making herdsman is only a fraction of -1.


Adding together the component partial utilities, the rational herdsman concludes that the only sensible course for him to pursue is to add another animal to his herd. And another; and another…. But this is the conclusion reached by each and every rational herdsman sharing a commons. Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit–in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all.




… .




The National Parks present another instance of the working out of the tragedy of the commons. At present, they are open to all, without limit. The parks themselves are limited in extent–there is only one Yosemite Valley–whereas population seems to grow without limit. The values that visitors seek the parks are steadily eroded. Plainly, we must soon cease to treat the parks as commons or they will be of no value anyone.


What shall we do? We have several options. We might sell them off as private property. We might keep them as public property, but allocate the right enter them. The allocation might be on the basis of wealth, by the use of an auction system. It might be on the basis merit, as defined by some agreed-upon standards. It might be by lottery. Or it might be on a first-come, first-served basis, administered to long queues. These, I think, are all the reasonable possibilities. They are all objectionable. But we must choose–or acquiesce in the destruction of the commons that we call our National Parks.


2.2.2. Applications


Young v. Ethyl Corp.,

521 F.2d 771 (8th Cir. 1975)




Robert J. Moffatt, Shreveport, La., for appellant.


Robert J. Malinak, Houston, Tex., for appellees.


Before Heaney and Webster, Circuit Judges, and Nangle, District Judge.1




Heany, Circuit Judge.


In this diversity action, plaintiff-appellant Young seeks an injunction and damages or an accounting for the defendants’ actions in forcibly removing valuable minerals from beneath his land by means of injection and production wells on surrounding property. The District Court dismissed his complaint after a trial on the merits. Young v. Ethyl Corp., 382 F.Supp. 769 (W.D.Ark.1974).


The defendants hold mineral leases on approximately 16,000 acres of land overlying the “Smackover Limestone Formation” in Columbia County, Arkansas. Their salt-water recycling operation brings salt water brine from a depth of 8,000 feet to the surface by means of production wells. Valuable bromine is extracted from the brine, and the debrominated water is then injected back into the ground through injection wells in a process which forces the subterranean brine toward the production wells.


Young’s land, consisting of approximately 180 acres, is surrounded by land controlled by the defendants. The defendants attempted to acquire a salt water lease from Young, but were rebuffed because Young believed the terms to be onerous. Defendants’ production well number 23 is located immediately to the north and west of Young’s land, and their production wells numbers 18 and 18A are adjacent to the north and east of his land. Their injection well number 13 is located adjacent to and south of Young’s land. The District Court found that



It is established, and undisputed, that the injection of debrominated waters from the defendants’ plant through well numbered 13, under high pressure, displaces the brine waters in the formation underlying the plaintiff’s lands, forcing it to move toward, and eventually produce through wells numbered 18 and 23. The salt water, by means of this artificially induced movement beneath the lands of Mr. Young, is carried to the processing plant * * *.



Id. at 772.


The District Court ruled that the action was governed by Arkansas law, and this ruling is not contested on appeal. In dismissing the action, the court declared that the decision of the Arkansas Supreme Court in Budd v. Ethyl Corp., 251 Ark. 639, 474 S.W.2d 411 (1971),2 provided a “clear, concise and unambiguous determination of the law” to be applied. Young v. Ethyl Corp., supra, 382 F.Supp. at 774. Relying on that decision as controlling, the District Court held that the common law rule of “capture,” as interpreted by the Arkansas Supreme Court, precluded relief.


We cannot agree that the Arkansas Supreme Court decided in Budd that the rule of capture protects one who, by force, pushes minerals out from under the land of another when the minerals would remain in place without the application of such force. On the contrary, we conclude that the manner in which the Arkansas court dealt with the plaintiff’s contentions in Budd indicates that that court declined to rule on the precise issue before us.


In Budd, the plaintiff sought an accounting for bromides removed from beneath two nonadjacent tracts of land. The Arkansas Supreme Court treated the two tracts separately, dismissing the cause of action as to each tract for different reasons. The first tract considered by the court was a 240-acre tract in which Budd owned an undivided interest in the minerals. The court found that this 240-acre tract was outside of the recycling area, although adjacent to it. Relying on the rule of capture, the court rejected Budd’s contention that the drainage of valuable minerals from beneath the tract stated a cause of action. In support of its position, the court quoted the following language from Osborn v. Arkansas Territorial Oil & Gas Co., 103 Ark. 175, 146 S.W. 122, 124 (1912):



* * * “Petroleum, gas and oil are substances of a peculiar character. * * * They belong to the owner of land, and are part of it so long as they are part of it or in it or subject to his control; but when they escape and go into other land or come under another’s control, the title of the former owner is gone. If an adjoining owner drills his own land and taps a deposit of oil or gas extending under his neighbor’s field, so that it comes into his well, it becomes his property.” * * *



(Quoting Brown v. Spilman, 155 U.S. 665, 15 S.Ct. 245, 39 L.Ed. 304 (1895)). Budd v. Ethyl Corp., supra, 474 S.W.2d at 412.


Since Young’s tract is within the recycling area, the state court’s disposition of Budd’s cause of action with respect to the 240-acre tract is not controlling.


Having disposed of the cause of action with respect to the tract lying outside of the recycling area, the Arkansas court turned to Budd’s second cause of action, which was based on a 40-acre tract which the court found to be within the recycling area that is, within the defendants’ circle of injection wells. Budd owned only an undivided leasehold interest in the 40-acre tract, and the defendants owned all the rest of the tract comprising the fee simple and the remaining leasehold. Although the court could once again have relied on the law of capture, it did not do so.3 Instead, it denied relief because of Budd’s limited interest in the property. The court stressed that Budd owned only an “inchoate” interest in the 40-acre tract: the right to drill for minerals if he wished to do so. “Thus there is no trespass upon a vested existing property right * * * .”4 Id. 474 S.W.2d at 413. Since Young owns title to his tract in fee simple, the state court’s disposition of Budd’s cause of action with respect to the 40-acre tract is not controlling.


When pressed on the issue in oral argument, counsel for the defendants conceded that the Arkansas Supreme Court has not yet held that relief for an owner in fee simple is barred by the rule of capture when minerals beneath his land are forced to migrate to the property of another by means of the other’s injection wells. Accordingly, the District Court’s conclusion that the Arkansas law controlling the issue is “clear, concise and unambiguous,” was error. Since the issue has not been determined by the highest court of the state, it is our task to rule as we believe the Arkansas Supreme Court would rule, were the matter squarely presented to it.5


In our view, if the Supreme Court of Arkansas were faced with this record, it would hold that the rule of capture does not apply, and that the defendants’ actions in forcibly removing valuable minerals from beneath Young’s land constitute an actionable trespass. We have reached this conclusion for two reasons.


First, we do not believe that the Arkansas Supreme Court would extend a rule developed in the field of oil and gas to the forced migration of minerals of different physical properties. The rule of capture has been applied exclusively,6 so far as we know, to the escape, seepage, or drainage7 of “fugacious”8 minerals which occurs as an inevitable result of the tapping of a common reservoir. The rule was adopted near the turn of the century primarily as a rule of necessity when courts concluded that the amount of oil and gas which drained toward a production well from neighboring tracts was incapable of measurement. See generally I Summers, The Law of Oil and Gas § 63 & n. 37 (1954). With the development of more sophisticated knowledge of geology and a greater ability to measure the amount of drainage, the absolutism with which some courts continue to apply the rule of capture to oil and gas has been criticized. See, e. g., id. at § 63. We agree with the defendants that the Arkansas Supreme Court foreclosed such arguments with respect to the drainage of minerals from adjacent lands. But Young does not claim that he is losing minerals due to seepage or drainage toward the defendants’ production wells. Rather, he asserts, and has established to the satisfaction of the District Court, that the brine solution under his land would not migrate to the defendants’ production wells but for the force exerted by the injection wells; in other words, that the brine is primarily “non-fugacious.” We believe that it would be unwise to extend the rule to situations in which non-fugacious minerals are forced from beneath a landowner’s property. Our conclusion in this respect is consistent with the fact that the Arkansas Supreme Court did not apply the rule of capture to the 40-acre tract in Budd.


Second, even accepting the defendants’ contention that the brine beneath Young’s land must be treated no differently than would oil or gas, the common law rule of capture is not a license to plunder. Rather, it has an important corollary in the doctrine of “correlative rights.” This doctrine allows owners of land to extract oil or gas from a common pool, but posits two duties which limit the right of a landowner to drain oil and gas from beneath adjacent lands: (1) the duty to other owners not to injure the source of supply; and (2) the duty not to take an undue proportion of the oil and gas from the common pool. See I Summers, The Law of Oil and Gas § 63 at 180-181 (1954). To violate those duties is to abuse one’s correlative rights. This corollary to the rule of capture has been codified in Ark.Stat.Ann. § 53-109(I) (3), which prohibits, as an abuse of correlative rights, “withdrawals causing undue drainage between tracts of land.”9 If causing undue drainage is an abuse of correlative rights, then a fortiori forcing static minerals under one’s neighbor’s land to migrate amounts to an abuse of those rights. The defendants would have us ignore § 53-109(I)(3) by urging that salt water brine is not governed by oil and gas law. They cannot have their cake and eat it too; if the rule of capture is to be applied to salt water brine, the doctrine of correlative rights must likewise be applied.


We conclude that the Supreme Court of Arkansas would not apply the rule of capture to this situation and, hence, would not need to proceed to the alternative question of correlative rights. Accordingly, the appellant has a vested existing property right in the brominated salt water underlying his land, and the action of the defendants in forcibly removing that solution by means of injection and production wells on surrounding property constitutes an actionable trespass. It was improper for the District Court to dismiss the action. The order of dismissal is reversed, and the cause remanded for further proceedings as to the relief to be granted.


  1. John F. Nangle, District Judge, Eastern District of Missouri, sitting by designation


  1. That case involved the same recycling project and the same defendants. However, as will be seen from our discussion, infra, we find significant factual distinctions between that case and the case sub judice


  1. The dissenter spoke as if he thought that the majority was applying the law of capture to the tract within the recycling unit. See Budd v. Ethyl Corp., 251 Ark. 639, 474 S.W.2d 411, 414 (1971) (Byrd, J., dissenting). We do not read the majority opinion to have done so.


  1. Again, the court quoted from Osborn v. Arkansas Territorial Oil & Gas Co., 103 Ark. 175, 146 S.W. 122 (1912):



    * * * “A gas lease, such as is involved in this case, is a contract granting to the lessee the right to explore the land and to produce therefrom the gas therein discovered. It is not a present sale or transfer of title to the gas, but, on account of its vagrant nature, the gas does not become actually owned until actually possessed. As is said in the case of Williamson v. Jones, 39 W.Va. 231, 19 S.E. 436: ‘The title is dependent on finding the gas by the purchaser in a limited time,’ and is inchoate.”



    Budd v. Ethyl Corp., supra, 474 S.W.2d at 413.


  1. We have previously declared that “(t)he responsibility of the federal courts, in matters of local law, is not to formulate the legal mind of the state, but merely to ascertain and apply it.” Yoder v. Nu-Enamel Corp., 117 F.2d 488, 489 (8th Cir. 1941). This task becomes most difficult when state law is uncertain, but we must not shun the responsibility:



    When the rights of a litigant are dependent on the law of a particular state, the court of the forum must do its best (not its worst) to determine what that law is. It must use its judicial brains, not a pair of scissors and a paste pot. Our judicial process is not mere syllogistic deduction, except as its worst. At its best, it is the wise and experienced use of many sources in combination statutes, judicial opinions, treatises, prevailing mores, custom, business practices; it is history and economics and sociology, and logic, both inductive and deductive. Shall a litigant, by the accident of diversity of citizenship, be deprived of the advantages of this judicial process? * * * We must not forget that a litigant has only one day in court. * * *


    * * * Each litigant, whether in the federal or the state courts, has a right that his case shall be a part of this evolution a live cell in the tree of justice. * * *



    Corbin, The Laws of the Several States, 50 Yale L.J. 762, 775-776 (1941).


  1. As an example of a case where the forcing out of minerals was permitted, the defendants cite Railroad Commission of Texas v. Manziel, 361 S.W.2d 560 (Tex.1962). The secondary recovery (injection) operation sustained in that case had been ordered by a state agency to further the public policy of maximizing oil recovery. Obviously, the authority of private actors is not coextensive with the powers available to a state in exercising its police powers


  1. I Summers, The Law of Oil and Gas §§ 61-65 (1954), and the cases cited therein, consistently speak of “drainage” when discussing the rule of capture. See, e. g., Elliff v. Texon Drilling Co., 146 Tex. 575, 210 S.W.2d 558, 562 (1948): “It must be conceded that under the law of capture there is no liability for reasonable and legitimate drainage from the common pool.”


  1. The Oxford English Dictionary (1971), defines “fugacious” as meaning “(a)pt to flee away or flit,” and “fugacity” as meaning “volatile.”



    8 * * * Because of the liquid and volatile nature of oil and gas and their existence in the earth in sealed strata subject to great pressures, one landowner in a common source of supply cannot produce oil or gas therefrom without actually or theoretically causing some displacement of the oil or gas under his neighbor’s land. * * *



    I Summers, The Law of Oil and Gas § 62 at 157 (1954).



    9 * * * The term “correlative rights” is merely a convenient metas legal privileges as against other owners of land therein to take oil and gas therefras legal privileges as against other owners of land therein to take oil and gas therefrom by lawful operations conducted on his own land limited, however, by duties to other owners not to injure the source of supply and by duties not to take an undue proportion of the oil and gas. In addition, of course, to this aggregate of legal relations, each landowner has duties to the public not to waste the oil and gas.



    I Summers, The Law of Oil and Gas § 63 at 180-181 (1954).


  1. Ark.Stat.Ann. § 53-110 provides:



    Waste of oil or gas as defined in this act is hereby prohibited.



    Section 53-109(I) provides:



    “Waste” in addition to its ordinary meaning, shall mean “physical waste” as that term is generally understood in the oil and gas industry. It shall include:



    (3) Abuse of the correlative rights and opportunities of each owner of oil and gas in a common reservoir due to nonuniform, disproportionate, and unratable withdrawals causing undue drainage between tracts of land.






Elliff v. Texon Drilling Co.,

210 S.W.2d 558 (Tex. 1948)


Boone, Boone & Davis, Kemp, Lewright, Dyer, Wilson & Sorrell, and J. M. Wilson, all of Corpus Christi, for petitioners.


Tarlton, Koch & Hale and McCampbell, Wood & Kirkham, all of Corpus Christi, for respondents.




Folley, Justice.


This is a suit by the petitioners, Mrs. Mabel Elliff, Frank Elliff, and Charles C. Elliff, against the respondents, Texon Drilling Company, a Texas corporation, Texon Royalty Company, a Texas corporation, Texon Royalty Company, a Delaware corporation, and John L. Sullivan, for damages resulting from a “blowout” gas well drilled by respondents in the Agua Dulce Field in Nueces County.


The petitioners owned the surface and certain royalty interests in 3054.9 acres of land in Nueces County, upon which there was a producing well known as Elliff No. 1. They owned all the mineral estate underlying the west 1500 acres of the tract, and an undivided one-half interest in the mineral estate underlying the east 1554.9 acres. Both tracts were subject to oil and gas leases, and therefore their royalty interest in the west 1500 acres was one-eighth of the oil or gas, and in the east 1554.9 acres was one-sixteenth of the oil and gas.


It was alleged that these lands overlaid approximately fifty per cent of a huge reservoir of gas and distillate and that the remainder of the reservoir was under the lands owned by Mrs. Clara Driscoll, adjoining the lands of petitioners on the east. Prior to November 1936, respondents were engaged in the drilling of Driscoll-Sevier No. 2 as an offset well at a location 466 feet east of petitioners’ east line. On the date stated, when respondents had reached a depth of approximately 6838 feet, the well blew out, caught fire and cratered. Attempts to control it were unsuccessful, and huge quantities of gas, distillate and some oil were blown into the air, dissipating large quantities from the reservoir into which the offset well was drilled. When the Driscoll-Sevier No. 2 well blew out, the fissure or opening in the ground around the well gradually increased until it enveloped and destroyed Elliff No. 1. The latter well also blew out, cratered, caught fire and burned for several years. Two water wells on petitioners’ land became involved in the cratering and each of them blew out. Certain damages also resulted to the surface of petitioners’ lands and to their cattle thereon. The cratering process and the eruption continued until large quantities of gas and distillate were drained from under petitioners’ land and escaped into the air, all of which was alleged to be the direct and proximate result of the negligence of respondents in permitting their well to blow out. The extent of the emissions from the Driscoll-Sevier No. 2 and Elliff No. 1, and the two water wells on petitioners’ lands, was shown at various times during the several years between the blowout in November 1936, and the time of the trial in June 1946. There was also expert testimony from petroleum engineers showing the extent of the losses from the underground reservior, which computations extended from the date of the blowout only up to June 1938. It was indicated that it was not feasible to calculate the losses subsequent thereto, although lesser emissions of gas continued even up to the time of the trial. All the evidence with reference to the damages included all losses from the reservoir beneath petitioners’ land without regard to whether they were wasted and dissipated from above the Driscoll land or from petitioners’ land.


The jury found that respondents were negligent in failing to use drilling mud of sufficient weight in drilling their well, and that such negligence was the proximate cause of the well blowing out. It also found that petitioners had suffered $4620 damage to sixty acres of the surface, and $1350 for the loss of 27 head of cattle. The damages for the gas and distillate wasted “from and under” the lands of petitioners, due to respondents’ negligence, was fixed by the jury at $78,580.46 for the gas, and $69,967.73 for the distillate. These figures were based upon the respective fractional royalty interests of petitioners in the whole amount wasted under their two tracts of land, and at a value, fixed by the court without objection by the parties, of two cents per 1000 cubic feet for the gas and $1.25 per barrel for the distillate.


The findings as to the amount of drainage of gas and distillate from beneath petitioners’ lands were based primarily upon the testimony of petitioners’ expert witness, C. J. Jennings, a petroleum engineer. He obtained his information from drilling records and electric logs from the high pressure Agua Dulce Field. He was thereby enabled to fairly estimate the amount of gas and distillate. He had definite information as to porosity and bottom-hole pressure both before and after the blowout. He was able to estimate the amount of gas wasted under the Elliff tract by calculating the volume of the strata of sands and the voids which were occupied by gas. Under his method of calculation the determining factor was the decrease in bottom-hole pressures of the sands caused by the blowout. He estimated that 13,096,717,000 cubic feet of gas had been drained from the west 1500 acres of the Elliff land, and that 57,625,728,000 cubic feet had been drained from the east 1554.9 acres as a result of the blowout. The distillate loss was calculated by taking the gas and distillate ratio from the records of the Railroad Commission. Jennings estimated that 195,713 barrels had been drained from the west 1500 acres and 802,690 barrels from the east 1554.9 acres, as a result of the blowout.


On the findings of the jury the trial court rendered judgment for petitioners for $154,518.19, which included $148,548.19 for the gas and distillate, and $5970 for damages to the land and cattle. The Court of Civil Appeals reversed the judgment and remanded the cause. 210 S.W.2d 553.


The reversal by the Court of Civil Appeals rests upon two grounds. The first was that since substantially all of the gas and distillate which was drained from under petitioners’ lands was lost through respondents’ blowout well, petitioners could not recover because under the law of capture they had lost all property rights in the gas or distillate which had migrated from their lands. The second theory was that the recovery cannot stand because the trial court had submitted the wrong measure of damages in that petitioners’ claim “is for trespass in and to a freehold estate in land and the proper measure of damage is the reasonable cash market value before and after the occurrence complained of.”


In our opinion the Court of Civil Appeals was without authority to pass upon the propriety of the measure of damages adopted by the trial court for the simple reason that no such assignment was presented to that court. Although such an objection was raised in the trial court, we do not find an intimation of it brought forward to the Court of Civil Appeals. The question is therefore not before us, and our subsequent conclusions as to the rights of the parties are without reference to the correctness of the measure of damages, and we express no opinion on that question.


Consequently, our attention will be confined to the sole question as to whether the law of capture absolves respondents of any liability for the negligent waste or destruction of petitioners’ gas and distillate, though substantially all of such waste or destruction occurred after the minerals had been drained from beneath petitioners’ lands.


We do not regard as authoritative the three decisions by the Supreme Court of Louisiana to the effect that an adjoining owner is without right of action for gas wasted from the common pool by his neighbor, because in that state only qualified ownership of oil and gas is recognized, no absolute ownership of minerals in place exists, and the unqualified rule is that under the law of capture the minerals belong exclusively to the one that produces them. Louisiana Gas & Fuel Co. v. White Bros., 157 La. 728, 103 So. 23; McCoy v. Arkansas Naturals Gas Co., 175 La. 487, 143 So. 383, 85 A.L.R. 1147, certiorari denied 287 U.S. 661, 53 S.Ct. 220, 77 L.Ed. 570; McCoy v. Arkansas Natural Gas Co., 184 La. 101, 165 So. 632. Moreover, from an examination of those cases it will be seen that the decisions rested in part on the theory that “the loss complained of was, manifestly, more a matter of uncertainty and speculation than of fact or estimate.” In the more recent trend of the decisions of our state, with the growth and development of scientific knowledge of oil and gas, it is now recognized “that when all oil field has been fairly tested and developed, experts can determine approximately the amount of oil and gas in place in a common pool, and can also equitably determine the amount of oil and gas recoverable by the owner of each tract of land under certain operating conditions.” Brown v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935, 940,87 S.W.2d 1069,99 A.L.R. 1107,101 A.L.R. 1393.


In Texas, and in other jurisdictions, a different rules exists as to ownership. In our state the landowner is regarded as having absolute title in severalty to the oil and gas in place beneath his land. Lemar v. Garner, 121 Tex. 502, 50 S.W.2d 769; Humphreys-Mexia Co. v. Gammon, 113 Tex. 247, 254 S.W. 296, 29 A.L.R. 607; Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27; Texas Co. v. Daugherty, 107 Tex. 226, 176 S.W. 717, L.R.A. 1917F, 989. The only qualification of that rule of ownership is that it must be considered in connection with the law of capture and is subject to police regulations. Brown v. Humble Oil & Refining Co., supra. The oil and gas beneath the soil are considered a part of the realty. Each owner of land owns separately, distinctly and exclusively all the oil and gas under his land and is accorded the usual remedies against trespassers who appropriate the minerals or destroy their market value. Peterson v. Grayce Oil Co., Tex.Civ.App., 37 S.W.2d 367, affirmed 128 Tex. 550, 98 S.W.2d 781; Comanche Duke Oil Co. v. Texas Pac. Coal & Oil Co., Tex.Com.App., 298 S.W. 554; Calor Oil & Gas Co. v. Franzell, 128 Ky. 715, 109 S.W. 328; Louisville Gas Co. v. Kentucky Heating Co., 117 Ky. 71, 77 S.W. 368, 70 L.R.A. 558, 111 Am.St.Rep. 225; Id., 132 Ky. 435, 111 S.W. 374; Ross v. Damm, 278 Mich. 388, 270 N.W. 722; 31A Tex.Jur. 911, Sec. 530; Id. 924, Sec. 537; 24 Am.Jur. 641, Sec. 159.


The conflict in the decisions of the various states with reference to the character of ownership is traceable to some extent to the divergent views entertained by the courts, particularly in the earlier cases, as to the nature and migratory character of oil and gas in the soil. 31A Tex.Jur. 24, Sec. 5. In the absence of common law precedent, and owing to the lack of scientific information as to the movement of these minerals, some of the courts have sought by analogy to compare oil and gas to other types of property such as wild animals, birds, subterranean waters and other migratory things, with reference to which the common law had established rules denying any character of ownership prior to capture. However, as was said by Professor A. W. Walker, Jr., of the School of Law of the University of Texas: “There is no oil or gas producing state today which follows the wild-animal analogy to its logical conclusion that the landowner has no property interest in the oil and gas in place.” 16 T.L.R. 370, 371. In the light of modern scientific knowledge these early analogies have been disproven, and courts generally have come to recognize that oil and gas, as commonly found in underground reservoirs, are securely entrapped in a static condition in the original pool, and, ordinarily, so remain until disturbed by penetrations from the surface. It is further established, nevertheless, that these minerals will migrate across property lines towards any low pressure area created by production from the common pool. This migratory character of oil and gas has given rise to the so-called rule or law of capture. That rule simply is that the owner of a tract of land acquires title to the oil or gas which he produces from wells on his land, though part of the oil or gas may have migrated from adjoining lands. He may thus appropriate the oil and gas that have flowed from adjacent lands without the consent of the owner of those lands, and without incurring liability to him for drainage. The non-liability is based upon the theory that after the drainage the title or property interest of the former owner is gone. This rule, at first blush, would seem to conflict with the view of absolute ownership of the minerals in place, but it was otherwise decided in the early case of Stephens County v. Mid-Kansas Oil & Gas Co., 1923, 113 Tex. 160, 254 S.W. 290, 29 A.L.R. 566. Mr. Justice Greenwood there stated, 113 Tex. 167, 254 S.W. 292, 29 A.L.R. 566:



The objection lacks substantial foundation that gas or oil in a certain tract of land cannot be owned in place, because subject to appropriation, without the consent of the owner of the tract, through drainage from wells on adjacent lands. If the owners of adjacent lands have the right to appropriate, without liability, the gas and oil underlying their neighbor’s land, then their neighbor has the correlative right to appropriate, through like methods of drainage, the gas and oil underlying the tracts adjacent to his own.





Thus it is seen that, notwithstanding the fact that oil and gas beneath the surface are subject both to capture and administrative regulation, the fundamental rule of absolute ownership of the minerals in place is not affected in our state. In recognition of such ownership, our courts, in decisions involving well-spacing regulations of our Railroad Commission, have frequently announced the sound view that each landowner should be afforded the opportunity to produce his fair share of the recoverable oil and gas beneath his land, which is but another way of recognizing the existence of correlative rights between the various landowners over a common reservoir of oil or gas.


It must be conceded that under the law of capture there is no liability for reasonable and legitimate drainage from the common pool. The landowner is privileged to sink as many wells as he desires upon his tract of land and extract therefrom and appropriate all the oil and gas that he may produce, so long as he operates within the spirit and purpose of conservation statutes and orders of the Railroad Commission. These laws and regulations are designed to afford each owner a reasonable opportunity to produce his proportionate part of the oil and gas from the entire pool and to prevent operating practices injurious to the common reservoir. In this manner, if all operators exercise the same degree of skill and diligence, each owner will recover in most instances his fair share of the oil and gas. This reasonable opportunity to produce his fair share of the oil and gas is the landowner’s common law right under our theory of absolute ownership of the minerals in place. But from the very nature of this theory the right of each land holder is qalified, and is limited to legitimate operations. Each owner whose land overlies the basin has a like interest, and each must of necessity exercise his right with some regard to the rights of others. No owner should be permitted to carry on his operations in reckless or lawless irresponsibility, but must submit to such limitations as are necessary to enable each to get his own. Hague v. Wheeler, 157 Pa. 324, 27 A. 714, 717,22 L.R.A. 141, 37 Am.St.Rep. 736.


While we are cognizant of the fact that there is a certain amount of reasonable and necessary waste incident to the production of oil and gas to which the non-liability rule must also apply, we do not think this immunity should be extended so as to include the negligent waste or destruction of the oil and gas.


In 1 Summers, Oil and Gas, Perm. Ed., s 63 correlative rights of owners of land in a common source of supply of oil and gas are discussed and described in the following language:



These existing property relations, called the correlative rights of the owners of land in the common source of supply, were not created by the statute, but held to exist because of the peculiar physical facts of oil and gas. The term “correlative rights” is merely a convenient method of indicating that each owner of land in a common source of supply of oil and gas has legal privileges as against other owners of land therein to take oil or gas therefrom by lawful operations conducted on his own land; that each such owner has duties to the other owners not to exercise his privileges of taking so as to injure the common source of supply; and that each such owner has rights that other owners not exercise their privileges of taking so as to injure the common source of supply.



In 85 A.L.R. 1156, in discussing the case of Hague v. Wheeler, supra, the annotator states:



* * * The fact that the owner of the land has a right to take and to use gas and oil, even to the diminution or exhaustion of the supply under his neighbor’s land, does not give him the right to waste the gas. His property in the gas underlying his land consists of the right to appropriate the same, and permitting the gas to escape into the air is not an appropriation thereof in the proper sense of the term.





In like manner, the negligent waste and destruction of petitioners’ gas and distillate was neither a legitimate drainage of the minerals from beneath their lands nor a lawful or reasonable appropriation of them. Consequently, the petitioners did not lose their right, title and interest in them under the law of capture. At the time of their removal they belonged to petitioners, and their wrongful dissipation deprived these owners of the right and opportunity to produce them. That right is forever lost, the same cannot be restored, and petitioners are without an adequate legal remedy unless we allow a recovery under the same common law which governs other actions for damages and under which the property rights in oil and gas are vested. This remedy should not be denied.


In common with others who are familiar with the nature of oil and gas and the risks involved in their production, the respondents had knowledge that a failure to use due care in drilling their well might result in a blowout with the consequent waste and dissipation of the oil, gas and distillate from the common reservoir. In the conduct of one’s business or in the use and exploitation of one’s property, the law imposes upon all persons the duty to exercise ordinary care to avoid injury or damage to the property of others. Thus under the common law, and independent of the conservation statutes, the respondents were legally bound to use due care to avoid the negligent waste or destruction of the minerals imbedded in petitioners’ oil and gas-bearing strata. This common-law duty the respondents failed to discharge. For that omission they should be required to respond in such damages as will reasonably compensate the injured parties for the loss sustained as the proximate result of the negligent conduct. The fact that the major portion of the gas and distillate escaped from the well on respondents’ premises is immaterial. Irrespective of the opening from which the minerals escaped, they belonged to the petitioners and the loss was the same. They would not have been dissipated at any opening except for the wrongful conduct of the respondents. Being responsible for the loss they are in no position to deny liability because the gas and distillate did not escape through the surface of petitioners’ lands.


We are therefore of the opinion the Court of Civil Appeals erred in holding that under the law of caputre the petitioners cannot recover for the damages resulting from the wrongful drainage of the gas and distillate from beneath their lands. However, we cannot affirm the judgment of the trial court because there is an assignment of error in the Court of Civil Appeals challenging the sufficiency of the evidence to support the findings of the jury on the amount of the damages, and another charging that the verdict was excessive. We have no jurisdiction of those assignments, and, since they have not been passed upon, the judgment of the Court of civil Appeals is reversed and the cause remanded to that court for consideration of all assignments except those herein decided. McKenzie Construction Co. v. City of San Antonio, 131 Tex. 474, 115 S.W.2d 617; Ritchie v. American Surety Co. of New York, 145 Tex. 422, 198 S.W.2d 85, and authorities cited.



2.3. Review






1. Now that we have read cases defining the concept of possession, return to the case of Bridges v. Hawkesworth. Argue, contrary to the court’s decision in that case, that the shop owner is the first possessor, and thus owner, of the notes that were found on his shop floor.


2. Which of the following most directly rebuts a “Lockean labor theory” argument that a litigant, call him A, should be declared the owner of an object: (a) A committed a moral wrong in the course of acquiring the object, (b) A is richer than B, who has a much greater need for the object, or (c) granting rights to A would create incentives for conduct that is more harmful than beneficial. Why? (Points awarded only for the explanation.)


3. In Terry v. Lock, the appellate court decides that the trial court’s decision that the found money was mislaid was not “clearly erroneous.” We’ve seen that appellate courts generally review legal determinations of trial courts “de novo,” that is without any deference to the trial court’s determination or reasoning. Why is this more deferential standard used in Terry, and why might it be justified?


4. Is the “substantial and unreasonable” test, used to determine whether there is a nuisance, a rule or a standard? Argue against this test based only the test’s status as a rule or standard. (That is, act like you’re a litigant attacking the test, and make an argument that, if translated, would work as well against any rule or any standard, depending on which you think the nuisance test is.)


5. Would you need to show evidence of harm to sue successfully a jet engine test facility operating near a residential neighborhood that routinely emits sound above levels safe for human ears? Would you need to show evidence of harm to sue successfully such a facility if it were silent but leaked small quantities of jet fuel onto some of the residences? Explain.


6. Take Garrett Hardin’s classic example of a pasture open, say, to six unrelated herdsmen. If Coase’s Theorem applies in this situation, will there be a tragedy of the commons? Why or why not? If your answer is yes, explain how. If your answer is no, explain which element necessary for the tragedy to occur would not be present. What would change if we assumed that the pasture was continuously open to new herdsmen, beyond the original six? Explain.


7. If I move into a residence in an industrial area in which there are almost no other residences, and I sue in nuisance a large factory that is both extremely loud and covering my property in significant levels of smoke, will I be able to get an injunction? Will I be able to do so if I pay damages to the factory? Explain.








According to legend, the pirate Gorefiend was killed shortly before his ship ran ashore in what is now the state of Carolorgia. His fellow pirates buried Gorefiend well upland from the beach, up in the dunes. Because they could not agree on how to divide Gorefiend’s valuables, the story goes, they buried him with a fair number of gold and silver objects. Within days, the pirates were captured. Some were sentenced to death and others to long prison terms.


Alfonso Allen stumbled onto the two-hundred-year-old story while working as a tour guide at a historical fort, where some of Gorefiend’s crew had been held. Among the many documents and artifacts in the museum’s store rooms was a book that had caught Alfonso’s eye and had occupied all of his spare time since. Through exhaustive research, Alfonso was able to decipher the notations in the book, finally concluding that it pinpointed the location of Gorefiend’s burial. Using software to model beach erosion and coastline changes, Alfonso generated a map showing the current location of the site: a forested area of Beach Bum Billy’s, a private beach club not far away from the fort.


Though Billy’s was a private and invitation-only club, once each year on March 17 the club invited the public to join a beachside fundraiser for the local children’s hospital. Seizing the chance, Alfonso showed up, paid the entrance fee, grabbed a drink at the cabana, and under cover of darkness headed toward the forested southern corner of the club.


Among the trees, Alfonso was shocked to find an exposed skeleton, apparently eroded out of the ground, with scraps of old leather clothing tying the corpse to Gorefiend’s era. Alfonso spied several gold doubloons and silver jewelry, tarnished but visible amongst the bones. Unprepared to map the site and inventory the find, Alfonso placed markers on nearby trees displaying his name and phone number, with a message that this historically significant find should not be disturbed. With that, he headed home, and excitedly posted an article describing his find (but withholding the precise location) on an internet site dedicated to amateur archaeology.


Unbeknownst to Alfonso, he had been followed by another visitor to the club, Craig Crawford, who suspected from Alfonso’s haste that something unusual was up. Craig hid in the bushes and later made off with as much gold as he could carry without raising suspicions. Everything unravelled, though, when a Billy’s employee spotted Craig’s overstuffed pockets. Upon being caught, he reluctantly handed over the gold and the location of the find.


After much back and forth, in which Alfonso was made aware of what had happened and after all concerned had spoken with lawyers, Craig sued Billy’s for ownership of the gold. Alfonso intervened and sued Craig and Billy’s. Fully analyze the possible claims and defenses of these three parties.







1. Now that we have read cases defining the concept of possession, return to the case of Bridges v. Hawkesworth. Argue, contrary to the court’s decision in that case, that the shop owner is the first possessor, and thus owner, of the notes that were found on his shop floor.



Whatever additional claims the shop owner in Bridges may have to the money as a landowner, he should be declared the owner as the first possessor of the lost property. Possession is defined as the intent to possess or control an object together with physical actions manifesting that intent. Precisely what acts are required varies with context. A landowner should be deemed to intend to possess all lost goods on his or her property, because most landowner do indeed intend to control the objects on their land – even if they are unaware of the objects’ whereabouts or even existence at any given moment. In any event, an intent to control access to the land is sufficient intent to control access to things on the land. The landowner maintains physical control over the land by controlling entry and setting the terms on which one is allowed to stay on the land. Even if a landowner opens up to the general public, he or she is not required to do this and may revoke consent at any time. The physical control the landowner in this case clearly exerted over the land is sufficient to communicate an intent to control all of the property contained on the land, including lost property.



2. Which of the following most directly rebuts a “Lockean labor theory” argument that a litigant, call him A, should be declared the owner of an object: (a) A committed a moral wrong in the course of acquiring the object, (b) A is richer than B, who has a much greater need for the object, or (c) granting rights to A would create incentives for conduct that is more harmful than beneficial. Why? (Points awarded only for the explanation.)



Locke’s labor theory asserts that one has a natural right to the fruits of one’s labors. This is a matter of justice and flows from the inalienable, god-given right to one’s body and thus one’s labors. The commission of a moral wrong in the course of acquiring an object most directly negatives what would otherwise be the moral justification for recognizing ownership by virtue of the acquisition. That is, if the reason we give laborers the fruits of their labors is because it is morally required, proof that an acquisition was immoral would most clearly negate that reason.



3. In Terry v. Lock, the appellate court decides that the trial court’s decision that the found money was mislaid was not “clearly erroneous.” We’ve seen that appellate courts generally review legal determinations of trial courts “de novo,” that is without any deference to the trial court’s determination or reasoning. Why is this more deferential standard used in Terry, and why might it be justified?



The clearly erroneous standard is used to review the factual findings of the lower court. The court that actually heard and saw the evidence is, the theory goes, in a better position to evaluate that evidence and reach conclusions about its validity. Courts generally, though not always, review legal determinations of trial courts de novo, without any deference, because appellate courts are at no comparative disadvantage in determining what the law is or should be.



4. Is the “substantial and unreasonable” test, used to determine whether there is a nuisance, a rule or a standard? Argue against this test based only the test’s status as a rule or standard. (That is, act like you’re a litigant attacking the test, and make an argument that, if translated, would work as well against any rule or any standard, depending on which you think the nuisance test is.)



The substantial and unreasonable test is well over on the “standards” end of the rule-standard spectrum. It does not provide an objective, non-controversial measure of what is and what is not a nuisance. One might argue this is a bad thing, because it fails to provide people with clear notice of what will be considered a nuisance. This harms planning, by leading people mistakenly to avoid uses that in fact would not be considered nuisances or perhaps to make uses that will be considered nuisances.



5. Would you need to show evidence of harm to sue successfully a jet engine test facility operating near a residential neighborhood that routinely emits sound above levels safe for human ears? Would you need to show evidence of harm to sue successfully such a facility if it were silent but leaked small quantities of jet fuel onto some of the residences? Explain.



Because noise would be considered “intangible” by most courts, loud noise, if actionable, will be regulated as a nuisance. To prove a nuisance, one needs to show harm. By contrast, jet fuel, even in small quantities, is a tangible object. Leaks onto the property of another would constitute a trespass, which does not require a showing of harm.



6. Take Garrett Hardin’s classic example of a pasture open, say, to six unrelated herdsmen. If Coase’s Theorem applies in this situation, will there be a tragedy of the commons? Why or why not? If your answer is yes, explain how. If your answer is no, explain which element necessary for the tragedy to occur would not be present. What would change if we assumed that the pasture was continuously open to new herdsmen, beyond the original six? Explain.



If we assume Coase’s Theorem applies, it means that the parties will negotiate an efficient result whatever the external legal rules governing their conduct happen to be. A tragedy will not occur in such a scenario, because the parties are cooperating through their negotiation. If the pasture were continually open to new entrants, it is hard to imagine that this cooperation could last. Each new entrant would need to be paid off, eventually exhausting the resources of existing herdsmen. Indeed, new people would show up, if they had a legal right to use the pasture, simply to get a pay-off. In addition, as the number of herdsmen increases, the costs of bargaining increase as well. Eventually, without sophisticated governance mechanisms, these transaction costs would become too unwieldy to reach a deal.



7. If I move into a residence in an industrial area in which there are almost no other residences, and I sue in nuisance a large factory that is both extremely loud and covering my property in significant levels of smoke, will I be able to get an injunction? Will I be able to do so if I pay damages to the factory? Explain.



If the factory were there first, most courts would decide that I had “come to the nuisance.” This is a defense to nuisance, meaning that courts will generally hold there is no nuisance at all under such facts. Going further, most courts would not, in this case, give me the Spur remedy: the ability to shut down the factory if I pay damages (in Calabresi language: protection of the factory, but only with a liability rule). Unlike in Spur, there are not many other residences impacted by the factory. Rather there are a great many other industrial concerns. Thus, it is unlikely that a court would decide that the costs of the factory’s activities (to both me and unrepresented third parties – like the residents of Sun City in Spur) greatly exceed its benefits. Given that, it would not make sense to order the factory shut down, even on payment of damages.





Essay Answer


On a recent test, I assigned points for this problem as follows:



Discussion of abandonment / treasure trove status of property: 2

Clearly stated definition of possession and set-up to argue: 2

Argument leading to a “contextualized” definition of possession: 3

Application of contextualized possession rule to facts: 2

Discussion of landowner claims to objects based on mere ownership and embedded: 3

Argument concerning possible different treatment as burial goods: 2

Argument that landowner would win if finder(s) declared trespassers: 1

Spotting a trespass issue and stating the law of trespass: 1

Recognizing consent as the difficult issue and establishing the principle: 2

Application of consent rule to facts: 1



Obviously, there are other issues and arguments that could be made, and to the extent decent arguments are made, I reflect them on the score sheet.


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Property Volume One by Christian Turner is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License, except where otherwise noted.


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