This is an extract of our Acquisition document, which we sell as part of our Property Outlines collection written by the top tier of University Of Michigan Law School students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Property Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
ACQUISITION OF PROPERTY a. The Rule of Capture i. 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: Ps succeeded to investors who bought land from an Indian tribe before the Revolution. Ds 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 Ps bought the land directly from the Indians, who did not have title, the sale was invalid. ii. 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. o Natural liberty: merely wounding or pursuing is not enough. See: Pierson v. Post. o Clear intent: killing an animal and then walking away leaves it up for grabs. o 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. OccupancyOrdinarily, satisfying all the elements of the RoC gives a captor superior claim against all others, even if he subsequently loses the animal to another.
2. 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.
3. 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.
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