Acquisition Outline

1. ACQUISITION OF PROPERTY

   1. The Rule of Capture

      1. Discovery

• Lands are only owned if their occupants exercise a sufficient degree of occupancy to establish possession. Historically, nomads who did not establish permanent settlements were only entitled to a right of occupancy.

• Lands which were not owned went to whichever European nation whose citizens first discovered it.

• One European power could take discovered territory from another through mutual agreement or conquest.

• The American Revolution transferred sovereignty over America from the British Crown to the U.S. Government.

• Johnson v. M’Intosh: Πs succeeded to investors who bought land from an Indian tribe before the Revolution. Δs bought the same land from the federal government after the Revolution. Held, the Indians did not possess the land, because they were nomadic and did not establish permanent villages, and therefore did not have title to the land, only a right of occupancy. The only party who can convey title to the Indian-occupied lands is the sovereign. The British Crown obtained title to the land when its citizens discovered/conquered it. The American government succeeded to the Crown’s title after the Revolution. Since Πs bought the land directly from the Indians, who did not have title, the sale was invalid.

  1. Wild Animals

• The Rule of Capture states that ferae naturae become the property of the captor who 1) Deprives the animal of its natural liberty; 2) manifests a clear intent to take possession; and 3) takes total control of the animal. This establishes occupancy in the creature and gives the captor superior title against subsequent possessors.

  • Natural liberty: merely wounding or pursuing is not enough. See: Pierson v. Post.

  • Clear intent: killing an animal and then walking away leaves it up for grabs.

  • Total control: an animal which is halfway in your net before escaping is up for grabs. But see: Popov v. Hayashi; where captor A’s ability to establish total control was disrupted by the wrongful intervention of third parties, the proceeds from the sale of the ball were equitably split between A and B.

• Policy: The RoC promotes competition to actually capture animals, rather than pursuers. Actual capture is easier to prove than mere pursuit. (But note: the RoC promotes harvest, and does not account for our interest in conservation.)

  1. Occupancy

• Ordinarily, satisfying all the elements of the RoC gives a captor superior claim against all others, even if he subsequently loses the animal to another.

  1. Ratione Soli

• Ratione soli is the “law of the soil;” it entitles a landowner to game captured on his land.

• Ratione soli trumps occupancy if captor A takes the animal while trespassing on B’s land.

• Provided an animal is on your land, you have an action against anyone who interferes in your right to harvest it. See: Keeble v. Hickeringill.

  1. Animus Revertendi

• A wild animal who is captured and escapes is typically up for grabs.

• BUT, a wild animal who is captured and tamed, such that it exhibits an instinct to return to its original master, is not available for capture.

• Policy: We want to reward people for taming wild animals, and protect their right to the fruits of their labor.

  1. Oil and Gas

• Oil and gas are subject to the RoC. They are considered a fugitive resource.

• Oil exists in underground reserves which may stretch across property lines. Pumping oil on lot A drains the oil not only under lot A but also from neighboring lots if the reserves are connected. This is considered legal, and the owner of A is entitled to the proceeds from the oil that he pumps.

• To prevent neighboring property owners from racing to drain the reserves, states have enacted compulsory unitization regimes. These require landowners to split the proceeds from drilling with their neighbors, minus the cost of exploration and extraction.

  1. Finders

• The right to a chattel is determined by ownership and possession. An owner does not lose title to an object by losing it. The “true owner” of the object has a claim superior to the rest of the world, regardless of who possesses it.

• However, proving ownership is harder than proving possession. A possessor of an item has superior title to all subsequent possessors. True Owner Finder / Possessor Subsequent Possessor. See Armorie v. Delamirie.

• Possession is established by asserting physical control over the property and by the intent to assume dominion over it.

• After Acquired Title Doctrine: If X sells an item to Y without perfect title, and O sues X in trover, X may not sue down the chain of possession, only up.

• In a suit against the seller of a good with imperfect title, O typically recovers the sale price of the item. However, some jurisdictions award the fair market value of the good at the time of the suit. See: Menzell v. Liszt.

• A finder or thief is treated as an involuntary bailee. If F sues J for damages, J may still be liable to O in a second suit.

• If F is a voluntary bailee, and F sues J and recovers, J is protected from another suit. See: Winkfield.

  1. Owners of Premises

• The owner of land where property is found may be in constructive possession and have superior title to the finder, particularly when: 1) The finder is a trespasser; 2) The finder is an employee of the owner; 3) The finder is on the premises for a limited purpose.

• The owner of property is held to have the right to exclude others on his property and to admit them only for specific purposes, which does not include harvesting found property on his land.

• At common law, the owner of land was held to be in constructive possession of everything embedded in the soil on his property. The exception (in England, not America) was for deliberately buried treasure, which went to the crown.

• If property is found in a private place on O’s property, O has constructive possession and superior title.

  • Exception: Where the owner has not yet taken possession of the premises, he may not have constructive possession of found...

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