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p. 3 CHAPTER 1 Acquisition of Property by First Possession: Discovery and Capture

Qui prior est tempore potior est jure. (Who is prior in time is stronger in right.)

—Maxim of Roman Law

First come, first served.

—Henry Brinklow, Complaynt of Roderick Mors, Ch. 17 (c. 1545)

How does property come to be, and why, and so what? Most of us most of the time take these questions for granted, which is to say that we take property for granted. But taking something for granted is not exactly the best path to understanding it. So we begin with the origins of property.

A. Acquisition by Discovery

Thus in the beginning all the world was America. . . .

—John Locke, Two Treatises of Government, Book II, Ch. V (“Of Property”) (c. 1690)

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p. 4 RESOURCES: Acquisition by Discovery JOHNSON v. M’INTOSH (https://www.casebookconnect.com Supreme Court of the United States, 1823 /plink/DukeminierProperty 21 U.S. (8 Wheat.) 543 /Ch1-2Acquisition)

Error to the District Court of Illinois. This was an action of ejectment for lands in the State and District of Illinois, claimed by the plaintiffs under a purchase and conveyance from the Piankeshaw Indians, and by the defendant, under a [later] grant from the United States. It came up on a case stated, upon which there was a judgment below for the defendant. . . .

C J M delivered the opinion of the Court.

The plaintiffs in this cause claim the land, in their declaration mentioned, under two grants, purporting to be made, the first in 1773, and the last in 1775, by the chiefs of certain Indian tribes, constituting the Illinois and the Piankeshaw nations; and the question is, whether this title can be recognised in the Courts of the United States?

The facts, as stated in the case agreed, show the authority of the chiefs who executed this conveyance, so far as it could be given by their own people; and likewise show, that the particular tribes for whom these chiefs acted were in rightful possession of the land they sold. The inquiry, therefore, is, in a great measure, confined to the power of Indians to give, and of private individuals to receive, a title which can be sustained in the Courts of this country.

As the right of society, to prescribe those rules by which property may be acquired and preserved is not, and cannot be drawn into question; as the title to lands, especially, is and must be admitted to depend entirely on the law of the nation in which they lie; it will be necessary, in pursuing this inquiry, to examine, not singly those principles of abstract justice, which the Creator of all things has impressed on the mind of his creature man, and which are admitted to regulate, in a great degree, the rights of civilized nations, whose perfect independence is acknowledged; but those principles also which our own government has adopted in the particular case, and given us as the rule for our decision.

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for

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unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.

p. 5 The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented.

Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.

In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion, but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.

While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.

The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles.

Spain did not rest her title solely on the grant of the Pope. Her discussions respecting boundary, with France, with Great Britain, and with the United States, all show that she placed it on the rights given by discovery. Portugal sustained her claim to the Brazils by the same title.

France, also, founded her title to the vast territories she claimed in America on discovery. However conciliatory her conduct to the natives may have been, she still asserted her right

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of dominion over a great extent of country not actually settled by Frenchmen, and her exclusive right to acquire and dispose of the soil which remained in the occupation of Indians. . . .

The claim of the Dutch was always contested by the English; not because they questioned the title given by discovery, but because they insisted on being themselves the rightful claimants under that title. Their pretensions were finally decided by the sword.

No one of the powers of Europe gave its full assent to this principle, more unequivocally than England. The documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of them in the name of the king of England. Two years afterwards, Cabot proceeded on this voyage, and discovered the continent of North America, along which he sailed as far south as Virginia. To this discovery the English trace their title.

In this first effort made by the English government to acquire territory on this continent, we perceive a complete recognition of the principle which has been mentioned. The right of discovery given by this commission, is confined to countries “then unknown to all Christian people”; and of these countries

p. 6 Cabot was empowered to take possession in the name of the king of England. Thus asserting a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery.

The same principle continued to be recognised. [Omitted here is a discussion of various charters from the English crown, granting lands in America.]

Thus has our whole country been granted by the crown while in the occupation of the Indians. These grants purport to convey the soil as well as the right of dominion to the grantees. In those governments which were denominated royal, where the right to the soil was not vested in individuals, but remained in the crown, or was vested in the colonial government, the king claimed and exercised the right of granting lands, and of dismembering the government at his will. The grants made out of the two original colonies, after the resumption of their charters by the crown, are examples of this. The governments of New-England, New-York, New-Jersey, Pennsylvania, Maryland, and a part of Carolina, were thus created. In all of them, the soil, at the time the grants were made, was occupied by the Indians. Yet almost every title within those governments is dependent on these grants. In some instances, the soil was conveyed by the crown unaccompanied by the powers of government, as in the case of the northern neck of Virginia. It has never been objected to this, or to any other similar grant, that the title as well as possession was in the

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Indians when it was made, and that it passed nothing on that account.

These various patents cannot be considered as nullities; nor can they be limited to a mere grant of the powers of government. A charter intended to convey political power only, would never contain words expressly granting the land, the soil, and the waters. Some of them purport to convey the soil alone; and in those cases in which the powers of government, as well as the soil, are conveyed to individuals, the crown has always acknowledged itself to be bound by the grant. Though the power to dismember regal governments was asserted and exercised, the power to dismember proprietary governments was not claimed; and, in some instances, even after the powers of government were revested in the crown, the title of the proprietors to the soil was respected. . . .

Further proofs of the extent to which this principle has been recognised, will be found in the history of the wars, negotiations, and treaties, which the different nations, claiming territory in America, have carried on, and held with each other. . . .

Thus, all the nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognised in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians. Have the American States rejected or adopted this principle?

By the treaty which concluded the war of our revolution, Great Britain relinquished all claim, not only to the government, but to the “propriety and territorial rights of the United States,” whose boundaries were fixed in the second article. By this treaty, the powers of government, and the right to soil, which had previously been in Great Britain, passed definitively to these States. We had before taken possession of them, by declaring independence; but neither the declaration of independence, nor the treaty confirming it, could give us more than that which

p. 7 we before possessed, or to which Great Britain was before entitled. It has never been doubted, that either the United States, or the several States, had a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right, was vested in that government which might constitutionally exercise it.

Virginia, particularly, within whose chartered limits the land in controversy lay, passed an act, in the year 1779, declaring her

exclusive right of pre-emption from the Indians, of all the lands within the limits of her own chartered territory, and that no person or persons whatsoever, have, or ever had, a right to purchase any lands within the same, from any Indian nation, except only persons duly authorized to make such purchase; formerly for the use

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and benefit of the colony, and lately for the Commonwealth.

The act then proceeds to annul all deeds made by Indians to individuals, for the private use of the purchasers.

Without ascribing to this act the power of annulling vested rights, or admitting it to countervail the testimony furnished by the marginal note opposite to the title of the law, forbidding purchases from the Indians, in the revisals of the Virginia statutes, stating that law to be repealed, it may safely be considered as an unequivocal affirmance, on the part of Virginia, of the broad principle which had always been maintained, that the exclusive right to purchase from the Indians resided in the government.

In pursuance of the same idea, Virginia proceeded, at the same session, to open her land office, for the sale of that country which now constitutes Kentucky, a country, every acre of which was then claimed and possessed by Indians, who maintained their title with as much persevering courage as was ever manifested by any people.

The States, having within their chartered limits different portions of territory covered by Indians, ceded that territory, generally, to the United States, on conditions expressed in their deeds of cession, which demonstrate the opinion, that they ceded the soil as well as jurisdiction, and that in doing so, they granted a productive fund to the government of the Union. The lands in controversy lay within the chartered limits of Virginia, and were ceded with the whole country northwest of the river Ohio. . . . The ceded territory was occupied by numerous and warlike tribes of Indians; but the exclusive right of the United States to extinguish their title, and to grant the soil, has never, we believe, been doubted. . . .

Our late acquisitions from Spain are of the same character; and the negotiations which preceded those acquisitions, recognise and elucidate the principle which has been received as the foundation of all European title in America.

The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise.

p. 8

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Map of land claims in Johnson v. M’Intosh. The areas in horizontal lines are the tracts purchased by the Illinois Company (1773). The areas in the hashed lines are the tracts purchased by the Wabash Company (1775). The areas in black are the townships containing McIntosh purchases of 1815, at issue in the case. (Courtesy of Professor Eric Kades.)

The power now possessed by the government of the United States to grant lands, resided, while we were colonies, in the crown, or its grantees. The validity of the titles given by

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either has never been questioned in our Courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative the existence of any right which may conflict with, and control it. An absolute title to lands cannot exist, at the same time, in different persons, or in different governments. An absolute must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognise the absolute title of the crown, subject only to the Indian right of occupancy, and recognise the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.

We will not enter into the controversy, whether agriculturists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the Courts

p. 9 of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. The British government, which was then our government, and whose rights have passed to the United States, asserted a title to all the lands occupied by Indians, within the chartered limits of the British colonies. It asserted also a limited sovereignty over them, and the exclusive right of extinguishing the title which occupancy gave to them. These claims have been maintained and established as far west as the river Mississippi, by the sword. The title to a vast portion of the lands we now hold, originates in them. It is not for the Courts of this country to question the validity of this title, or to sustain one which is incompatible with it.

Although we do not mean to engage in the defence of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.

The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually, they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one people. Where this incorporation is practicable, humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connexions, and united by force to strangers.

When the conquest is complete, and the conquered inhabitants can be blended with the conquerors, or safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes these restraints upon him; and he cannot neglect them

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without injury to his fame, and hazard to his power.

But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.

What was the inevitable consequence of this state of things? The Europeans were under the necessity either of abandoning the country, and relinquishing their pompous claims to it, or of enforcing those claims by the sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct society, or of remaining in their neighbourhood, and exposing themselves and their families to the perpetual hazard of being massacred.

Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued. European policy, numbers, and skill prevailed. As the white population advanced, that of the Indians necessarily receded. The country

p. 10 in the immediate neighbourhood of agriculturists became unfit for them. The game fled into thicker and more unbroken forests, and the Indians followed. The soil, to which the crown originally claimed title, being no longer occupied by its ancient inhabitants, was parcelled out according to the will of the sovereign power, and taken possession of by persons who claimed immediately from the crown, or mediately, through its grantees or deputies.

That law which regulates, and ought to regulate in general, the relations between the conqueror and conquered, was incapable of application to a people under such circumstances. The resort to some new and different rule, better adapted to the actual state of things, was unavoidable. Every rule which can be suggested will be found to be attended with great difficulty.

However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice. . . .

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It has never been contended, that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right. . . .

After bestowing on this subject a degree of attention which was more required by the magnitude of the interest in litigation, and the able and elaborate arguments of the bar, than by its intrinsic difficulty, the Court is decidedly of opinion, that the plaintiffs do not exhibit a title which can be sustained in the Courts of the United States; and that there is no error in the judgment which was rendered against them in the District Court of Illinois.

Judgment affirmed, with costs.

NOTES AND QUESTIONS

1. A logical place to begin. Our concern here is not the complexities of title to land once occupied exclusively by Native Americans.1 We are interested, instead, in getting a study of property under way, and Johnson v. M’Intosh provides an apt point of departure for several reasons.

p. 11 First, how better to start a course in the American law of property than with the foundations of landownership in the United States? Land, you will learn, plays an important part in property law, and not just because so much of that law aims to resolve — better yet, avoid — conflicts over real property (as land is called). Landownership also commonly determines the ownership and control of a host of other natural resources, such as wild animals, water and minerals, peace and quiet, clean air, and open space. Moreover, many of the general legal principles pertaining to real property also apply to personal property and intellectual property (that is, property other than land). So landownership is important, and, as Johnson v. M’Intosh suggests, most landowners in the United States trace their ownership — their title — back to grants (or patents, as they are called in the case of conveyances of public land out of the government) from the United States. The United States, in turn, traces its title, by grant and otherwise, all the way back to the “discovery” of America by white men.2

2. Discovery . . . or conquest? Discovery and conquest, both of which are mentioned in Chief Justice Marshall’s3 opinion in the Johnson case, are terms of art referring to methods of acquiring territory in international law. Acquisition by discovery entails “the sighting or ‘finding’ of hitherto unknown or uncharted territory; it is frequently accompanied by a landing and the symbolic taking of possession,” acts that give rise to an inchoate title that must (on one view) subsequently be perfected, within a reasonable time, by settling in and

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making an effective occupation. 4 Encyclopedia of Public International Law 839-840 (1992). Conquest is the taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror. See Parry & Grant Encyclopaedic Dictionary of International Law 96 (2000).

Neither of these two modes of territorial acquisition has much immediate relevance today. As to discovery, there are virtually no unknown territories on earth (what about a new volcanic island emerging in the high seas?), and territories beyond the earth are governed by special treaties and agreements placing the moon and other celestial bodies outside the reach of national appropriation. As to conquest, it has come to be proscribed by contemporary international law as a method of territorial acquisition. 4 Encyclopedia of Public International Law, supra.

In earlier times, though, discovery and conquest were of great importance, as Johnson v. M’Intosh suggests. In that case the two doctrines worked in concert. Discovery, Marshall wrote, “gave an exclusive right to extinguish the Indian title

p. 12 of occupancy, either by purchase or by conquest.”4 See page 7. The first “discoverer” had a preemptive right to deal with the Indians, as against subsequent “discoverers.” But why did discovery play any role at all? In principle, only a res nullius or terra nullius (a thing or territory belonging to no one), a “hitherto unknown territory,” can be discovered. See 4 Encyclopedia of Public International Law, supra. North America in the fifteenth century was not unknown to its indigenous occupants. Why didn’t it belong to them?

The answer is discomfiting. During the so-called classical era of discovery (1450-1600), prior possession by aboriginal populations (which were sometimes called savage populations, or semi-civilized ones) was commonly thought not to matter. “In previous centuries European international lawyers were sometimes reluctant to admit that non- European societies could constitute states for the purposes of international law, and territory inhabited by non-European peoples was sometimes regarded as terra nullius.” Peter Malanczuk, Akehurst’s Modern Introduction to International Law 148 (7th ed. 1997). Marshall was alluding to this attitude when he said of North America that “the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency.”5 See page 4.

For more on the historical context of Johnson v. M’Intosh, see Blake Watson, Buying America from the Indians: Johnson v. McIntosh and the History of Native Land Rights (2012); Robert J. Miller, Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark, and Manifest Destiny (2006). We shall return to the subject shortly, after considering some additional reasons to begin a study of property with Johnson v. M’Intosh.

3. Occupancy theory and the principle of first in time. The doctrine of discovery at work in

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Johnson may be of little importance today, but exactly the opposite is true of the doctrine’s foundation — the principle of first in time.

p. 13

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John Marshall Chief Justice of the United States, 1801-1835 by Chester Harding (1828) Collection of the Boston Athenaeum

“The notion that being there first somehow justifies ownership rights is a venerable and persistent one.” Lawrence C. Becker, Property Rights: Philosophical Foundations 24 (1977). The theory of first occupancy, or first possession, dates back to Roman law and played a considerable part in the writings of Hugo Grotius and Samuel Pufendorf in the seventeenth century (you will soon bump into these figures again; see pages 20-21, 25). As Grotius saw it, the riches of the earth were initially held in common (nothing belonged to any one individual). But because avarice eventually led to scarcity, the institution of private property became necessary to preserve peace. Private ownership was imagined to have developed according to agreements, explicit ones or those implied by occupation; it was to be “supposed” that whatever each person had taken possession of should be that

p. 14 person’s property. Eventually, systems of government were introduced (how?), and the original rules of acquisition were modified. Still, though, the government had to recognize the pre-established property rights of its citizens.

[T]he institution of private property really protected men’s natural equality of rights. “Now property ownership was introduced for the purpose of preserving equality to this end, in fact, that each should enjoy his own.” But what is this “own” to which each man has an equal right? . . . In fact, the “own” which the laws of property protect is whatever an individual has managed to get hold of, and equality of right, applied to property, means only that every man has an equal right to grab. The institution of property was an agreement among men legalizing what each had already grabbed, without any right to do so, and granting, for the future, a formal right of ownership to the first grabber. As a result of this agreement, which, by a remarkable oversight, puts no limit on the amount of property any one person may occupy, everything would soon pass into private ownership, and the equal right to grab would cease to have any practical value. [Richard Schlatter, Private Property: The History of an Idea 130-131 (1951).]6

Occupancy fares rather well as a positive (descriptive or explanatory) theory of the origins of property. Sir William Blackstone put it to that use in his famous Commentaries on the Laws of England, completed a few years before the American Revolution (see page 25). See also Richard A. Epstein, Possession as the Root of Title, 13 Ga. L. Rev. 1221, 1222 (1979) (the common and civil law alike adopted the proposition that “taking possession of unowned things is the only possible way to acquire ownership of them”; the universal principle is “original possession”). And, as Becker observed above, the idea that being prior in time matters is not only “venerable” but “persistent.” You will see it running throughout

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the materials in this book, particularly in the next section on Acquisition by Capture. For an overview of its active role in contemporary property law, see Lawrence Berger, An Analysis of the Doctrine that “First in Time Is First in Right,” 64 Neb. L. Rev. 349 (1985).

Despite its persistence, however, the normative case for first possession — its force as a justification — is commonly thought to be rather weak. See Morris Cohen, Property and Sovereignty, 13 Cornell L.Q. 8, 15-16 (1927). But Cohen was not single-minded; he did find “a kernel of value” in the principle. Epstein provides a more spirited defense in his essay on Possession as the Root of Title, supra. See also Richard A. Epstein, Past and Future: The Temporal Dimension in the Law of Property, 64 Wash. U. L.Q. 667 (1986). Can you anticipate the

p. 15 arguments in these articles, constructing for yourself a list of the pros and cons of first in time?

4. Labor theory and John Locke. The famous philosopher John Locke (1632-1704) drew first occupancy into his labor theory of property, but in a way that was thought to give it greater moral weight. The problem is this: So what if someone possesses something first; why should anyone else be obliged to respect the claim of the first possessor? Locke reasoned that the obligation “was imposed by the law of nature, and bound all men fast long before mere human conventions had been thought of.” Schlatter, supra, at 154. Here is a slightly modernized statement of the core of Locke’s argument:

Though the earth and all inferior creatures be common to all men, yet every man has a property in his own person. This nobody has any right to but himself. The labor 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 has provided, and left it in, he has mixed his labor 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 placed it in, has by this labor something annexed to it, that excludes the common right of other men. For this labor being the unquestionable property of the laborer, 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. [John Locke, Two Treatises of Government, Book II, Ch. V (1690).]

Locke’s labor theory appears in several versions, most of them deficient in one respect or another. Like what? See Carol M. Rose, Property and Persuasion 11 (1994) (why does one own one’s labor? In any event, how broad is the right that one establishes by mixing one’s labor with something else?). Still, though, labor theory has its appeal, and the law of property continues to feel its influence (just as with its forerunner, occupancy theory). See Eric R. Claeys, Labor, Exclusion, and Flourishing in Property Law, 95 N.C. L. Rev. 413 (2017) (developing a Lockean productive labor account of property law). We mention a few examples here as an aside and ask you to watch for others as your studies progress.

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Consider, then, the law of accession, which comes into play when one person adds to the property of another: by labor alone, A chopping B’s trees and making flower boxes from them; by labor and the addition of new material, C using her own oils and D’s canvas to produce a valuable painting. As between A and B, or C and D, which party is entitled to the final product? Is the other party entitled to damages equal to the value of his or her contribution? These issues look to be simple ones, but they are not. What factors do you suppose the courts would consider in resolving them? See Ray A. Brown, The Law of Personal Property 49-62 (Walter V. Raushenbush ed., 3d ed. 1975). For an interesting theoretical analysis of the law of accession, see Thomas W. Merrill, Accession and Original Ownership, 1 J. Legal Analysis 459 (2009). A particular virtue of Merrill’s treatment is that it shows a number of connections between accession and several other topics considered in the first three chapters of this book.

Another illustration of labor theory at work is found in Haslem v. Lockwood, 37 Conn. 500 (1871), where the plaintiff had raked into heaps manure that had accumulated in a public street, intending to carry it away the next day. Before

p. 16 he could do so, the defendant found the heaps of manure and hauled them off in his cart. In an action in trover for the value of the manure, the court held for the plaintiff. The manure belonged originally to the owners of the animals that dropped it, but had been abandoned. As abandoned property, it belonged to the first occupant, the plaintiff, who “had changed its original condition and greatly enhanced its value by his labor. . . .” 37 Conn. at 506. The defendant argued that the plaintiff had lost his rights when he left the heaps unattended overnight. The court asked, “if a party finds property comparatively worthless . . . and greatly increases its value by his labor and expense, does he lose his right if he leaves it a reasonable time to procure the means to take it away, when such means are necessary for its removal?” 37 Conn. at 507. Answer: No.

5. John Locke and Johnson v. M’Intosh. Return now to the Johnson case where we left it at the end of Note 2 above. Locke appears to have shared the common European view that the Native Americans had no substantial claim to the New World they had so long occupied.

[He] reasoned that the Indians’ occupancy of their aboriginal lands did not involve an adequate amount of “labor” to perfect a “property” interest in the soil. His argument helped frame and direct later liberal debates in colonial America on the natural rights of European agriculturists to dispossess tribal societies of their land base. [Robert A. Williams, Jr., The Medieval and Renaissance Origins of the Status of the American Indian in Western Legal Thought, 57 S. Cal. L. Rev. 1, 3 n.4 (1983).]

See generally Robert A. Williams, Jr., The American Indian in Western Legal Thought (1990).

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Notwithstanding the foregoing, there is considerable evidence that American lawyers and government officials actually did, for a time, regard the Indians as owners of their lands. See Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (2005). In a detailed and very convincing account, Professor Banner shows that acknowledgment of Indian ownership was common in the early 1790s. But by the time of the decision in Johnson some 30 years later, conventional wisdom was to the opposite effect: The Indians were not owners but merely had a right of occupancy. “A major change in American legal thought had taken place during the intervening three decades. . . . Like many transformations in legal thought, this one was so complete that contemporaries often failed to notice that it had occurred. They came to believe instead that they were simply following the rule laid down by their English colonial predecessors, and that the Indians had never been accorded full ownership of their land. And that view, expressed most prominently by the Supreme Court in Johnson v. M’Intosh, has persisted right up until today.” Id. at 150. Rights to land flowed from the legitimate sovereign government, and only from that source.

Some recent historical scholarship helps explain these developments. See Gregory Ablavsky, The Rise of Federal Title, 106 Cal. L. Rev. __ (forthcoming 2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2998435. Ablavsky notes that in 1763, the English crown prohibited both individuals and the colonies from purchasing western lands from the Indians, though speculators continued to make such purchases despite the legal

p. 17 prohibitions. During the decades that followed, two groups of speculators purchased millions of acres of land in the West: The Transylvania Company bought from the Cherokees, and the Illinois & Wabash Company purchased from the Illinois and Piankeshaw Indians. Id. at 16. Both companies made their purchases shortly before the onset of the Revolutionary War, and while they knew the purchases were invalid under English law, they guessed that a new government might soon be in charge, one that could prove more sympathetic to their claims to title. After the war was won, these companies lobbied the states to recognize their claims, to no avail. (Virginia’s government officials wanted to be in charge of allocating the Commonwealth’s western landholdings themselves.) So the would-be landowners took their fight to Congress, where they waged a long but unsuccessful battle to win recognition of their landholdings. Id. at 25. With Congress’s final, definitive rejection in 1811, the companies (and M’Intosh, who claimed title to smaller but still substantial swaths of land, as the map on page 8 shows) turned to their last resort: the federal courts, culminating with the decision in Johnson. As Ablavsky writes, the decision “was unsurprising, given that the companies’ claim had already been adjudicated, and rejected, by three separate sovereigns.” Id.

Johnson hardly settled everything. State records regarding who controlled what were a mess. States eventually ceded most of their public lands to the federal government, which was forced to settle numerous disputes among conflicting claimants. For example, western

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land had been promised to revolutionary war veterans, and while many veterans sold their landholdings willingly, others had been swindled. Id. at 32-33. In Kentucky, meanwhile, grants had been issued by the government to more than 24 million acres of land, “twice as much land as the state contained[!]” Id. at 18. Meanwhile, a recurring problem arose when states granted white men rights to land still occupied by Indians, and the federal government later promised those same lands to Indian tribes by treaty. Congress and Thomas Jefferson (then Secretary of State) were for the most part hostile to the claims of those tracing their title to state grants in these circumstances. See Lindsay G. Robertson, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Land 106-109 (2005). All these disputes over title gave rise to an avalanche of litigation. Real property disputes comprised a sizeable percentage of the Supreme Court’s docket between 1815 and 1835, becoming the largest category of non-constitutional cases. Ablavsky, supra, at 19.

Notice finally that in the penultimate paragraph of the Johnson opinion (page 10) the Court recognized an Indian title of occupancy, which only the government could purchase. Given that the European settlers had such superior might, why did they not instead simply conquer the Indians altogether, and grant them nothing? A persuasive answer is suggested in Eric Kades, The Dark Side of Efficiency: Johnson v. M’Intosh and the Expropriation of American Indian Lands, 148 U. Pa. L. Rev. 1065 (2000). Professor Kades argues that the settlers’ objective was efficient expropriation; they wanted to get land at the least cost to themselves, with cost defined broadly to include lives lost in battle, diversion of capital to military production, and so on. In this light, purchase was often the cheapest course. To see why, consider that the decision in Johnson, echoing a long line of colonial statutes, royal proclamations, and administrative rulings, decreed that the sovereign (first Britain, then the United States) was the only buyer empowered to

p. 18 purchase Indian lands. The government was a so-called monopsonist — a sole buyer — and this fact helped reduce the price paid for the Indian title of occupancy. Moreover, major portions of early American land law (favorable financing, squatters’ rights, and Homestead Acts) had the purpose and effect of weakening Indian resistance by luring settlers to the frontier. They brought with them European diseases against which tribes had no immunity; they cleared land and hunted prodigiously to get hides and fur. A native population decimated by sickness and deprived of sources of food and other necessities had little bargaining power. The title of occupancy went for a pittance. See also Eric Kades, History and Interpretation of the Great Case of Johnson v. M’Intosh, 19 Law & Hist. Rev. 67 (2001).

Despite the ongoing force of Johnson v. M’Intosh, scholars continue to contest its rationale and contemporary relevance. A summary of the critical commentary is provided in the final chapter of Blake Watson’s book, supra. See also Blake Watson, The Doctrine of Discovery and the Elusive Definition of Indian Title, 15 Lewis & Clark L. Rev. 995 (2011). Watson argues that the nature of Indian title is unique, with no analogies in American law. A contrary view is offered in Michael C. Blumm, Why Aboriginal Title Is a Fee Simple

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Absolute, 15 Lewis & Clark L. Rev. 975 (2011). Professor Blumm argues that the problem with Johnson is more in its interpretation by other courts than in what the case actually held. Justice Marshall, he believes, aimed to protect native land rights as much as he thought possible.

6. Property and power. Property confers and rests upon power. It bestows on owners a form of sovereignty over others, because property means that the sovereign state stands behind the owners’ assertions of right.7 But as Morris Cohen observed:

[T]he recognition of private property as a form of sovereignty is not itself an argument against it [for] some form of government we must always have. . . . While, however, government is a necessity, not all forms of it are of equal value. At any rate it is necessary to apply to the law of property all those considerations of social ethics and enlightened public policy which ought to be brought to the discussion of any just form of government. [Cohen, supra, at 14.]

In this respect, the ongoing history of relations between Native Americans and the U.S. government has not been a very happy one. “That there was tragedy, deception, barbarity, and virtually every other vice known to man in the 300-year history of the expansion of the original 13 Colonies into a Nation which now embraces more than three million square miles and 50 States cannot be denied.”

p. 19 This is the view of then-Justice (now late Chief Justice) William Rehnquist, stated in a dissenting opinion written some 150 years after Johnson v. M’Intosh. See United States v. Sioux Nation of Indians, 448 U.S. 371, 437 (1980).

7. Epilogue and prologue. See Rose, supra, at 19-20:

[P]erhaps 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.

To be sure, 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

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and fast, as Herman Melville might put it. The common law of first possession makes a choice. The common law gives preference to those who convince the world that they can catch 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 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 one’s self property from the great commons of unowned things.

B. Acquisition by Capture

PIERSON v. POST Supreme Court of New York, 1805 3 Cai. R. 175, 2 Am. Dec. 264

This was an action of trespass on the case RESOURCES: commenced in a justice’s court, by the present Acquisition by Capture defendant against the now plaintiff. (https://www.casebookconnect.com /plink/DukeminierProperty The declaration stated that Post, being in possession /Ch1-2Acquisition) of certain dogs and hounds under his command, did, “upon a certain wild and uninhabited, unpossessed and waste land, called the beach, find and start one of those noxious beasts called a fox,” and whilst there hunting, chasing and pursuing the same with his dogs and hounds, and when in view thereof, Pierson, well knowing the fox was so hunted and pursued, did, in the sight of Post, to prevent his catching the same, kill and carry it off. A verdict having been rendered for the plaintiff below, the defendant there sued out a certiorari, and now assigned for error, that the declaration and the matters therein contained were not sufficient in law to maintain an action. . . .

p. 20 T, J., delivered the opinion of the court.8 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

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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

p. 21 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

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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 of his notes, the more accurate opinion of Grotius, with respect to occupancy. . . . 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.

L, J.9 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?

p. 22 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

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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

p. 23 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

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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 with an intention of converting to his own use.10

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.

Judgment of reversal.

NOTES AND QUESTIONS

1. The famous fox. Pierson v. Post, one of the old chestnuts of property law,11 has figured in a flurry of law review articles:

Bethany R. Berger, It’s Not about the Fox: The Untold History of Pierson v. Post, 55 Duke L.J. 1089 (2006), speculates that the real dispute in the case had

p. 24 little to do with rights to a fox; the issue, rather, was whether the use of local common areas should be determined by the tastes of the newly wealthy (Post) or the old agricultural traditionalists (Pierson).

Andrea McDowell, Legal Fictions in Pierson v. Post, 105 Mich. L. Rev. 735 (2007), argues that the dispute was a torts case in disguise. Neither party actually wanted the fox. Post simply wanted to run a hunt free of interference from others, whereas Pierson’s aim was to get rid of varmints, not gain possession of them.

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Angela Fernandez, The Lost Record of Pierson v. Post, the Famous Fox Case, 27 Law & Hist. Rev. 149 (2009), relates the author’s discovery in 2008 of the long-lost judgment roll in the case and describes various previously unknown points of interest disclosed by the record — for example, the date of the incident (December 10, 1802); a description of the jury trial before a justice of the peace where the parties appeared without lawyers on December 30, 1802; the amount of damages Post claimed (up to $25) and was awarded (75¢ by the jury and $5 in costs); the amount Pierson won on appeal ($121.37); confirmation of the names of the lawyers; and all six grounds of appeal claimed by Pierson’s lawyer, Nathan Sanford, which included allegations of some serious procedural error by the justice of the peace.

In a subsequent article, Pierson v. Post: A Great Debate, James Kent, and the Project of Building a Learned Law for New York State, 34 Law & Soc. Inq. 301 (2009), Professor Fernandez argues that the length of time the case took to be heard on appeal, plus the procedural error involved in the original finding for Post, which could easily have led to a quick and simple reversal for Pierson, suggest that something besides just the legal merits was at work in the case. The judges and lawyers involved with it at the appellate level saw an opportunity for a learned debate. The chief justice of the court at the time of the appeal, James Kent, demonstrated considerable interest in the case, as evidenced by annotations he made on a later copy of the case and his treatment of it in his famous Commentaries on American Law (four volumes, 1826-1830). Professor Fernandez wonders whether Kent might have been the mastermind behind the case in 1805. She can’t be sure, of course, but thinks that the published report of the case (the one we have reproduced) is best understood as a product of the intellectual interests and schooling of the lawyers and judges involved in the appeal, who were engaged in the project of building elaborate “high law” for the new nation.

2. At what point does one become an owner? And how do courts decide? One of the key issues in Pierson is whether Post did enough to acquire an ownership interest in the fox. The court is wrestling with a difficult line-drawing problem about how to differentiate those hunters who have “done enough” from those who have not. This problem turns out to be present everywhere in property and intellectual property law. See Lisa Larrimore Oullette, Pierson, Peer Review, and Patent Law, 69 Vand. L. Rev. 1825 (2017). A second, closely related key issue in Pierson is how to formulate that line. Should the courts articulate a property doctrine as a bright-line rule — a predictable, mechanical, and occasionally harsh test that makes the outcome depend on the answers to a straightforward yes-no question or two? Or should the courts articulate the doctrine as a flexible standard — a less predictable test that is more sensitive to context and leaves more

p. 25 discretion in the hands of the courts to reach a desirable outcome? See Angela Fernandez, Fuzzy Rules and Clear Enough Standards: The Uses and Abuses of Pierson v. Post, 63 U. Toronto L.J. 97 (2013) (critiquing a common academic account of Pierson that hypes the desirability of rules). On the comparative virtues of rules and standards generally, see Louis

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Kaplow, Rules versus Standards: An Economic Analysis, 42 Duke L.J. 557 (1992); Carol M. Rose, Crystals and Mud in Property Law, 40 Stan. L. Rev. 577 (1988); Pierre J. Schlag, Rules and Standards, 33 UCLA L. Rev. 379 (1985).

3. Formalism. The majority and dissenting opinions in Pierson v. Post are peppered with references to a number of obscure legal works and legal scholars. Justinian’s Institutes is a Roman law treatise of the sixth century; Bracton was the author of a thirteenth-century tome on English law; Fleta refers to a Latin textbook on English law written in 1290 or thereabouts, supposedly in Fleet prison and possibly by one of the corrupt judges Edward I put there. Barbeyrac, Bynkershoek, Grotius, and Pufendorf (sometimes spelled Puffendorf) were legal scholars who wrote in the seventeenth and eighteenth centuries; the last two of them figured in our discussion of Johnson v. M’Intosh, as did John Locke, the English philosopher (1632-1704) and William Blackstone (1723-1780). See pages 12-16. Blackstone was the first professor of English law at an English university. His famous Commentaries on the Laws of England (1765-1769), the first accessible general statement of English law, was popular and influential in both England and the United States, despite being scorned by the likes of English philosopher Jeremy Bentham for uncritical acceptance of previous writers and blind admiration of the past. After resigning a professorship at Oxford, Blackstone was appointed to the bench, where in a famous opinion in Perrin v. Blake he concisely formulated the conservative creed of property lawyers of his time: “The law of real property in this country, wherever its materials were gathered, is now formed into a fine artificial system, full of unseen connexions and nice dependencies; and he that breaks one link of the chain, endangers the dissolution of the whole.” 1 Francis Hargrave, Tracts Relative to the Law of England 489, 498 (1787).

4. First in time. The discussion in Note 3 on page 12 introduced the principle of first in time and suggested the dominant role it plays in the law of property. Did the majority and dissenting justices in Pierson v. Post agree that first in time was the governing principle? Note that the majority held as it did “for the sake of certainty, and preserving peace and order in society.” See page 21. How did its opinion (that mere chase is insufficient to confer the rights of first possession) advance those goals? The benefits of peace and order seem obvious enough. What are the advantages of certainty in a property system? Are there any disadvantages in promoting certainty? Consider in this regard the dissenting opinion of Justice Livingston, who wanted to promote the destruction of “pernicious beasts.” He believed that his rule would do that more effectively than the rule of the majority opinion. Was he correct?

On the methods of reasoning reflected in the majority and dissenting opinions in Pierson v. Post, see Linda Holdeman Edwards, The Convergence of Analogical and Dialectic Imaginations in Legal Discourse, 20 Legal Stud. F. 7 (1996).

p. 26

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Sir William Blackstone Attributed to Sir Joshua Reynolds National Portrait Gallery, London

5. Custom. Livingston was also of the view that the question in Pierson v. Post “should have been submitted to the arbitration of sportsmen.”12 See page 22. In

p. 27 that event, Post probably would have won, because “it appeared from the record that all

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hunters in the region regarded hot pursuit as giving rights to take an unimpeded first possession.” Richard A. Epstein, Possession as the Root of Title, 13 Ga. L. Rev. 1221, 1231 (1979). The local custom, in short, was contrary to the rule adopted by the majority. Should the majority have abided by the custom? Consider the following case.

GHEN v. RICH United States District Court, District of Massachusetts, 1881 8 F. 159

N, 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 to the respondent, who shipped off the blubber and

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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.

p. 28 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, 8 F. Cas. 159, 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 then practicable in order to secure it. They left it anchored, with unequivocal marks of appropriation.

In Bartlett v. Budd, 2 F. Cas. 966, the facts were these: The first officer of the libellant’s ship killed a whale in the Okhotsk sea, anchored it, attached a waif13 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, 23 F. Cas. 558, Judge Lowell decided that a custom among whalemen in

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the Arctic seas, that the iron holds the whale, was reasonable and valid. In that case a boat’s crew from the respondent’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

p. 29 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 no 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 it 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, The Common 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 libellant.

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.

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Decree for libellant for $71.05, without costs.

NOTES AND QUESTIONS

1. A libel is the admiralty law equivalent of a lawsuit, and the libellant (or libelant) is the equivalent of the plaintiff in an action at law. Was the custom or usage relied upon in Ghen v. Rich essential to the libellant’s case, or would the rule in Pierson v. Post, page 19, have served as well?

2. Custom again. Ghen v. Rich describes several whaling customs, and evidence of others can be found in a surprising array of sources, including Herman

p. 30 Melville’s Moby-Dick Ch. 89 (1851),14 Oliver Wendell Holmes’s famous lectures on The Common Law 212 (1881), a number of court reports, and various journals and historical accounts. Much of the literature is considered in Robert C. Ellickson, A Hypothesis of Wealth-Maximizing Norms: Evidence from the Whaling Industry, 5 J. Law, Econ. & Org. 83 (1989), part of a larger study on relationships between formal law and informal norms. See Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes (1991).

Ellickson concludes that all the supposed and actual whaling norms boiled down to essentially three. One usage entailed the fast-fish/loose-fish understanding “that a claimant owned a whale, dead or alive, so long as the whale was fastened by line or otherwise to the claimant’s boat or ship.” Another usage, iron-holds-the-whale, “conferred an exclusive right to capture upon the whaler who had first affixed a harpoon or other whaling craft to the body of the whale. . . . [T]he iron did not have to be connected by a line or otherwise to the claimant,” so long as the claimant remained in fresh pursuit. The third usage “called for the value of the carcass to be split between the first harpooner and the ultimate seizer by way of a reasonable salvage award to the latter.” Ellickson, Wealth-Maximizing Norms, supra, at 89-93. Each usage, Ellickson argues, “was adapted to its particular context” — to the disparate circumstances of various whales and waters — and all of them were developed and observed by whalers (and observed by courts, too) as informal or extralegal property rights regimes that maximized the whalers’ aggregate wealth.

So should a usage of whalers have determined the outcome of Ghen v. Rich?15 And to get back to where we began all of this (in Note 5 on page 26), should the norms of hunters have decided Pierson v. Post? More generally, when and why should custom matter, and when and why not? See Lisa Bernstein, Custom in the Courts, 110 Nw. U. L. Rev. 63 (2015); Richard A. Epstein, Possession as the Root of Title, 13 Ga. L. Rev. 1221, 1231-1236 (1979); Benjamin van Drimmelen, The International Mismanagement of Whaling, 10 UCLA Pac. Basin L.J. 240 (1991).

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3. Tragedy of the commons. At its height, whaling was the fifth largest sector in the United States economy, but by the end of the nineteenth century the American whaling industry was in serious decline. See Derek Thompson, The Spectacular Rise and Fall of U.S. Whaling: An Innovation Story, The Atlantic, Feb. 22, 2012. There were many reasons for the collapse of the industry, which Thompson details. Ellickson notes that excessive whaling has been a recurring

p. 31 problem throughout the last few centuries, see Ellickson, supra, at 95-96. Excessive whaling may arise because whalers become so concerned about their near-term economic well-being that they disregard conservation interests that will ensure that enough whales will survive, breed, and keep populations stable.

A tragedy of the commons is a kind of collective action problem. It is in an individual’s interest to exploit a collective resource, but it is in the community’s interest that the collective resource be managed sustainably. Whales swimming in the ocean were common resources. If a whaling captain killed a whale and harvested the value from the carcass, then all the gains from the kill would go to him and his crew. If, by contrast, a captain decided not to kill a whale that was still part of the breeding population, the benefits of the captain’s decision to conserve would be shared among all whalers in the vicinity (and any whales and environmentalists too). Foregoing the kill might be best for the community, especially in the long run, but foregoing the kill would almost certainly make this particular captain and this particular crew worse off. And the public-spirited captain couldn’t do anything to stop the next crew that might come along and kill the whale before it could reproduce. The whale’s mobility makes the problem more daunting by spreading the gains of conservation among dispersed beneficiaries. It would be one thing to forego a kill in the hopes that your kinsmen, who also whale in the area, would benefit. But benefiting whalers in a distant sea would be less appealing. In one view, resources held in common will always be abused, absent coercive intervention by the government. See Garrett Hardin, The Tragedy of the Commons, 162 Science 1243 (1968). In Hardin’s words, “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.” Id. at 1244.

Some analysts have argued that these tragic consequences do not always occur, at least not where access to the common resource can be restricted in some way. These scholars, notably the late Elinor Ostrom, who won the Nobel Memorial Prize in Economic Science in 2009, have found that in a “limited-access commons,” people are often able to cooperate with each other in arrangements that avoid tragic consequences for the group. A limited- access commons is an arrangement whereby a group of individuals permits each group member to exploit the collective resource, but outsiders are prohibited from doing likewise. Limited numbers and shared outlooks tend to reduce strategic behavior among the group members, thus facilitating constructive collective action. See generally Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (1990); James M. Acheson, The Lobster Gangs of Maine (1988).

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4. Externalities more generally. The tragedy of the commons illustrates an important concept in the economic analysis of property — externalities. Externalities exist whenever some person, say Ariel, makes a decision about how to use resources without taking full account of the effects of the decision. Ariel ignores some of the effects — costs or benefits that would result from a particular activity, for example — because they fall on others. They are “external” to Ariel, hence the label “externalities.” As a consequence of externalities, resources tend to be misused or “misallocated,” which is to say used in one way when another would make society as a whole better off.

p. 32 Externalities are commonly thought of in negative terms. Air and water pollution, overharvesting of fish and other resources in common areas, littering, and cutting in line are all examples of negative externalities (also called “social costs”). But externalities can be positive as well. For example, think of street performers who play melodious music in a public space, hoping for tips from those who sit and watch. They provide a positive externality for anyone who enjoys the performance as they walk by on their way somewhere else. Or think of flower boxes placed in windows and other efforts to increase a home’s curb appeal. Many of the benefits of these beautification efforts accrue to neighbors and strangers passing through the neighborhood.

The concept of externalities is at the heart of the economic theory of property rights, which has gained much attention over the past several decades. According to this theory, the purpose of private property rights is to enhance social welfare by maximizing the value of scarce resources. Property rights are thought to perform this value-maximizing function by “internalizing externalities,” to use the economics jargon — i.e., bringing the costs of the resource’s use to bear on the user. See Harold Demsetz, Toward a Theory of Property Rights, 57 Am. Econ. Rev. 347-357 (Pap. & Proc. 1967). Property rights do this in two ways. First, they concentrate the costs and benefits of the use on owners, giving them greater incentives to use their own resources more efficiently. Second, property rights reduce the costs of negotiating with others over remaining externalities. In a commons, agreements to reduce external costs require the consent of everyone with a right to use the resource. Such agreements encounter high transaction costs by virtue of the sheer number of users involved.

Even if the number of users is low, however, there are other contributors to high transaction costs. One is the problem of free-riders, which occurs when efforts are made to extract contributions from members of a group in order to carry out transactions that will confer collective or nonexclusive benefits on the group — on contributors and noncontributors alike. Suppose residents of a block hire a private constable to deter crimes, and one of the homeowners refuses to contribute to the constable’s salary, insisting (falsely) that he does not believe the block needs a constable. The neighbors cannot easily prevent the free-rider from enjoying any safety improvements on the block. And there is a broader danger that in light of this dynamic, other neighbors will also be tempted to free-ride, putting a heavier

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financial burden on the shrinking number of homeowners who elect to contribute to the constable’s salary. If there are too many free-riders, the burden will become unsustainable, and a collective benefit that is desired by everyone will not be provided.

Collective or nonexclusive effects are typical of many (but not all) externalities. Another driver of transaction costs is the problem of holdouts, which arises when payments must be made to a group in order to carry out a transaction, and where, unless each member of the group agrees to the deal, the transaction fails entirely. Suppose Ben wishes to change to a land use that will increase his profits by $1,000, but will impose $50 in costs on each of his 10 neighbors. Suppose, too, that Ben is prohibited by law from engaging in the use unless he first obtains the permission of each person affected. Ben will be inclined to offer payments (between $50 and $100) to each neighbor, but each has an incentive to “hold out” for an exorbitantly higher amount, knowing that without his permission Ben cannot

p. 33 pursue a venture that would be worth far more than a $100 payment. Holding out can frustrate transactions whose completion would be beneficial to all concerned. The general point is this: when transaction costs become sufficiently high, the external effects of using resources are unlikely to be taken into account through any sort of bargaining process, and the resources are likely to be misused.

5. How do property rights arise? Consider the problem of the conscientious whaler, discussed in Note 3 above, who obtains control over a whale that is not yet of breeding age. Society is better off if the whaler lets the whale swim away, so it can reproduce and then be caught years later once it has grown. But if the whale is released back into the wild, then the whaler’s rights disappear. So says property law, though it needn’t say that. With modern technology, we could imagine a society in which a whaler tags a young whale with a sturdy GPS-enabled tracking device, and the attachment of the device to the whale both makes it easier to find the whale at a later date and establishes a claim to ownership that other whalers recognize. Under such a regime, the proliferation of a new technology could alter the content of property law to prevent a tragedy of the commons. The law of whaling has not moved in that direction to date. Yet many property scholars believe that new property rights often arise in such a fashion. For example, economic historians have studied the development of property rights to cattle in the Great Plains. In the eastern states, farms were small, fencing materials were plentiful, and herds of cattle were thin. On the plains, however, huge herds of livestock grazed over large areas of land where wood was scarce. The methods of maintaining ownership in the East — fencing livestock in and using their natural markings to identify them — were poorly adapted to the Great Plains states.

The situation called out for innovative approaches to property rights. Ranchers began branding their cattle with symbols unique to each owner, and states and counties began requiring cattle brands to be registered in a central repository. Soon after, many Great Plains states decided that registered brands conferred legal proof of ownership. Inventors

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helped solve the fencing problem too. Before the development of barbed wire in the 1870’s, ranchers paid relatively little attention to who owned which particular grazing lands. But barbed wire made it easy for a rancher to fence off his land, keeping his own cattle in and stray cattle away. As the cost of demarcating private land fell, the enforcement of private property rights increased, and this in turn changed the way that cattle were raised. For instance, fencing the open range facilitated selective breeding of cattle. See Terry L. Anderson & P.J. Hill, The Evolution of Property Rights: A Study of the American West, 18 J.L. & Econ. 163 (1975). As Anderson and Hill demonstrate, property rights enforcement depends on changes in technology, resource endowments, economies of scale, fluctuating commodity prices, and the like. New property rights and arrangements emerge when the benefits of innovation exceed the benefits of the status quo, taking account of transition costs. Anderson and Hill’s work complements the aforementioned scholarship by Demsetz, supra, who argued that private property rights displace communal property arrangements when the gains from internalizing externalities via private ownership exceed the costs of doing so. See Demsetz, supra, at 354. For an argument that political factors, as well as the economic factors emphasized by Demsetz, Anderson, and Hill, loom large in the development of private property

p. 34 rights, see Katrina Miriam Wyman, From Fur to Fish: Reconsidering the Evolution of Private Property, 80 N.Y.U. L. Rev. 117 (2005).

So far, so good. But all of this raises the broader question of what factors gave rise to the first effective property regimes. That is, a willingness to recognize property rights depends on cooperation with others — and the initial transaction costs of such cooperation would have been very high in a state of nature, where presumably might made right. Natural selection may have played a part, rewarding those individuals and tribes that deferred to existing possessors of resources and otherwise developed robust systems for recognizing each other’s entitlements. See James E. Krier, Evolutionary Theory and the Origin of Property Rights, 95 Cornell L. Rev. 139 (2009); Jeffrey Evans Stake, The Property “Instinct,” 359 Philosophical Transactions of the Royal Society London B 1763 (2004).

6. Tragedy of the anticommons. The tragedy of the commons has a flip-side. Just as a resource held in common entails few (if any) rights to exclude others, an anticommons entails multiple people having rights to veto the exploitation of a resource. And just as common property can lead to overconsumption of the resource in question (with the problem of overconsumption worsening as the number of commoners increases), so an anticommons leads to underconsumption (with the problem of underconsumption worsening as the number of anticommoners increases). The anticommons is a fine thing when the whole idea is to keep people from using a resource (imagine a wilderness preserve, or a nuclear waste site), but counterproductive otherwise.

Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 Harv. L. Rev. 621 (1998), illustrates the tragedy of the anticommons by

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discussing Moscow’s empty storefronts in the first few years after the collapse of communism:

Socialist rule stifled markets and often left store shelves bare. One promise of the transition “from Marx to markets” was that new entrepreneurs would acquire the stores, create businesses, and fill the shelves. However, after several years of reform, storefronts often remained empty, while flimsy metal kiosks, stocked full of goods, mushroomed up on Moscow streets. Why did new merchants not come in from the cold? [Id. at 622-623.]

The answer, according to Heller, owes to the way the government was creating new property rights. Usually, for example, no one person or entity was given ownership of a storefront. Instead, the incidents of ownership were broken up and distributed among a number of competing owners: one person had the right to sign a lease, another to receive some of the lease revenue, another to sell the property altogether, another to occupy the premises, and so on. “Each owner,” says Heller, “can block the others from using the space as a storefront. No one can set up shop without collecting the consent of all of the other owners.” Id. at 623.16

p. 35 Setting up a kiosk, by contrast, was relatively straightforward. An entrepreneur just needed to bribe a small number of government officials and the local Russian mafia, of whom it was said, “they don’t charge too much, they tell you exactly how much they want up front, and when an agreement is made, they live up to it.” Id. at 643 (quoting James P. Gallagher, Russia’s Kiosk Capitalists Keep Wary Eye on Hard-Line Premier, Chi. Trib., Jan. 5, 1993, at 1).

7. The conservation organization Greenpeace tries to frustrate the capture of whales by interposing its own boats between whalers and their prey. Suppose conservationists as a group can demonstrate that this is their shared custom, and they have adopted it because they think it maximizes the aggregate wealth of the world by preventing excessive whaling. Should the custom count? The case that follows, though decided more than three centuries ago, bears directly on the question.

KEEBLE v. HICKERINGILL Queen’s Bench, 1707 11 East 574, 103 Eng. Rep. 1127 11 Mod. 74, 130 (as Keble v. Hickringill) 3 Salk. 9 (as Keeble v. Hickeringhall)

Action upon the case. Plaintiff declares that he was, 8th November in the second year of the Queen, lawfully possessed of a close of land called Minott’s Meadow, [containing] a

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decoy pond, to which divers wildfowl used to resort and come: and the plaintiff had at his own costs and charges prepared and procured divers decoy ducks, nets, machines and other engines for the decoying and taking of the wildfowl, and enjoyed the benefit in taking them: the defendant, knowing which, and intending to damnify the plaintiff in his vivary, and to fright and drive away the wildfowl used to resort thither, and deprive him of his profit, did, on the 8th of November, resort to the head of the said pond and vivary, and did discharge six guns laden with gunpowder, and with the noise and stink of the gunpowder did drive away the wildfowl then being in the pond: and on the 11th and 12th days of November the defendant, with design to damnify the plaintiff, and fright away the wildfowl, did place himself with a gun near the vivary, and there did discharge the said gun several times that was then charged with the gunpowder against the said decoy pond, whereby the wildfowl were frighted away, and did forsake the said pond. Upon not guilty pleaded, a verdict was found for the plaintiff and 20l. damages.

p. 36 H, C.J.17 I am of opinion that this action doth lie. It seems to be new in its instance, but is not new in the reason or principle of it. For, 1st, this using or making a decoy is lawful. 2dly, this employment of his ground to that use is profitable to the plaintiff, as is the skill and management of that employment. As to the first, every man that hath a property may employ it for his pleasure and profit, as for alluring and procuring decoy ducks to come to his pond. To learn the trade of seducing other ducks to come there in order to be taken is not prohibited either by the law of the land or the moral law; but it is as lawful to use art to seduce them, to catch them, and destroy them for the use of mankind, as to kill and destroy wildfowl or tame cattle. Then when a man useth his art or his skill to take them, to sell and dispose of for his profit; this is his trade; and he that hinders another in his trade or livelihood is liable to an action for so hindering him. . . .

[W]here a violent or malicious act is done to a man’s occupation, profession, or way of getting a livelihood, there an action lies in all cases. But if a man doth him damage by using the same employment; as if Mr. Hickeringill had set up another decoy on his own ground near the plaintiff’s, and that had spoiled the custom of the plaintiff, no action would lie, because he had as much liberty to make and use a decoy as the plaintiff. This is like the case of 11 H. 4, 47.18 One schoolmaster sets up a new school to the damage of an antient school, and thereby the scholars are allured from the old school to come to his new. (The action was held there not to lie.) But suppose Mr. Hickeringill should lie in the way with his guns, and fright the boys from going to school, and their parents would not let them go thither; sure that schoolmaster might have an action for the loss of his scholars. 29 E. 3, 18. A man hath a market, to which he hath toll for horses sold: a man is bringing his horse to market to sell: a stranger hinders and obstructs him from going thither to the market: an action lies, because it imports damage. . . .

And when we do know that of long time in the kingdom these artificial contrivances of decoy ponds and decoy ducks have been used for enticing into those ponds wildfowl, in

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order to be taken for the profit of the owner of the pond, who is at the expence of servants, engines, and other management, whereby the markets of the nation may be furnished; there is great reason to give encouragement thereunto; that the people who are so instrumental by their skill and industry so to furnish the markets should reap the benefit and have their action. But, in short, that which is the true reason is that this action is not brought to recover damage for the loss of the fowl, but for the disturbance; as 2 Cro. 604, Dawney v. Dee. So is the usual and common way of declaring.

p. 37

NOTES AND QUESTIONS

1. Early English reports. There were no official reports of judicial decisions in England prior to the nineteenth century; entrepreneurs gathered up information about cases in one way or another and published them on their own. Students of the matter consider some of these unofficial sources to be more reliable than others. We have not indicated all the reports of Keeble. That from East (reprinted in Volume 103 of the English Reports), which we have used, is thought to be particularly trustworthy, the reporter claiming that his account came directly from a copy of Chief Justice Holt’s manuscript. Modern (Mod.) is not esteemed, nor is the third volume of Salkeld (Salk.). See generally John W. Wallace, The Reporters (4th ed. 1882).

2. Keeble and Pierson. Go back to page 21, and you will see that the court in Pierson v. Post reckoned with Keeble, though it referred to it not by name but only by citation — the “case cited from 11 Mod. 74-130” and “the report of the same case, (3 Salk. 9).” The report in 3 Salk. 9 suggested to the court that the result in Keeble was influenced by the fact that the ducks were in the plaintiff’s decoy pond, such that the plaintiff had possession of the ducks “ratione soli.” Ratione soli refers to the conventional view that an owner of land has possession — constructive possession, that is — of wild animals on the owner’s land; in other words, landowners are regarded as the prior possessors of any animals ferae naturae on their land, until the animals take off.19

We shall return to ratione soli shortly. The point for now is that it appears to have had little, if any, bearing on the final decision in Keeble, the statement of the court in Pierson v. Post to the contrary notwithstanding. The Keeble case was argued several times, and there was indeed a stage at which Chief Justice Holt seemed to be of the view that the plaintiff had (constructive) possession of the ducks in question. The arguments of counsel led him to change his mind, however, and to rest the judgment on the theory spelled out in the opinion from East that you have read — the theory of malicious interference with trade.

But the East report was unavailable at the time of Pierson v. Post; it was not published until 1815, a decade after the decision in Pierson was handed down. Hence the court had to rely

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on the accounts in Modern and Salkeld, which, as we saw, are probably untrustworthy.

3. Spite, Coase, and the common law. The Keeble case gives rise to a general question: Should an otherwise privileged act that causes harm to another person be legally actionable if the actor’s motive was to cause harm? The question involves the doctrine of abuse of right, which provides that an owner abuses her property right when she exercises that right with the subjective intent of harming someone. The doctrine is widely recognized in the civil law, but since the decision

p. 38 in Bradford v. Pickles [1895], A.C. 587, the law in the U.K. and Commonwealth jurisdictions generally has been thought to indicate that motive is irrelevant. For a penetrating argument to the contrary, see Larissa Katz, Spite and Extortion: A Jurisdictional Principle of Abuse of Property Right, 122 Yale L.J. 1444 (2013). See also the fine book by Michael Taggart, Private Property and the Abuse of Rights in Victorian England: The Story of Edward Pickles and the Bradford Water Supply (2002).

Spiteful actions continue to be particularly disfavored in property law when it comes to construction. Suppose that landowner Alice lives across the street from her neighbors, Boris and Cooper. Alice has a lovely view of a nearby lake from her master bedroom deck. She sees the lake by looking over Boris and Cooper’s respective rooftops. Boris decides to add an additional story to his home so he can accommodate his growing family comfortably, and as a consequence half of Alice’s lake view is blocked. Contemporaneously, bad blood develops between Alice and Cooper. Cooper decides to build a tall trellis on top of his roof. Cooper doesn’t really gain any tangible benefit from having the trellis there, but Cooper knows that Alice loved her lake view and relishes Alice’s comeuppance. As a result of Cooper’s actions, the other half of Alice’s lake view disappears. The law treats these two situations very differently, giving Alice a cause of action against Cooper but not against Boris. Why should that be, if the result in both cases is an equivalent obstruction of Alice’s lake view? See Nadav Shoked, Two Hundred Years of Spite, 110 Nw. U. L. Rev. 357 (2016) (arguing that the costs and benefits of the respective structures, not the motives of their respective builders, should be decisive). Now suppose that Cooper’s motivations for building the trellis are mixed: Cooper built the trellis mostly to block Alice’s view, but Cooper also knew that the trellis would shield his backyard from the glaring afternoon sun. Does the existence of this fringe benefit change the outcome? See Oblensky v. Trombley, 115 A.3d 1016 (Vt. 2015) (discussing the varied approaches of jurisdictions to this question, with the states split between a “sole purpose” test and a “predominant purpose” test for spite fences).

Before we forget about Alice, let us use her story to illustrate one more fundamental point about the law. If Alice does not like what has happened to her, she can try to bargain with Boris and/or Cooper. Suppose that she values her view much more than Boris values the extra bedrooms he can squeeze into his taller home. We might expect to see her pay him enough money to keep his house at its current height. Assuming that it is not too difficult for

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them to bargain, whether the law assigns Alice a right to keep her view or Boris a right to build an extra story should not alter the ultimate outcome, which is that Alice will retain her lake view. The situation between Alice and Cooper is different. There’s acrimony there, and animosity of this sort raises the transaction costs of Alice and Cooper working out a mutually beneficial deal. (Recall Note 4 on pages 31-33.) Even though Alice might value her view more than Cooper values his trellis (and more than he values the harm he is inflicting on Alice!) the two of them find it too unpleasant to talk and hence too difficult to negotiate with each other. A bargain that would make both of them better off is never struck. See in this regard the classic essay by Ronald Coase, The Problem of Social Cost, 3 J.L. & Econ. 1 (1960). The essay develops what is now called the Coase Theorem, which holds

p. 39 that in the absence of transaction costs it is irrelevant from the standpoint of efficiency whether Boris is liable to Alice for blocking her view. Resources will be put to their efficient use in either event, though the rules of property law will have distributive effects, making Alice and Boris richer or poorer. In 1991, Ronald Coase was awarded the Nobel Memorial Prize in Economic Science, becoming the only law professor ever to earn that award. He died in September 2013, just a few months short of his 103rd birthday.

4. Interference with capture. Was it essential to the outcome in Keeble that the plaintiff was engaged in something like a trade, as opposed to mere sport? Suppose Dahlia is an avid hunter who tracks down a deer on a piece of open hunting land during the hunting season. The deer is at very close range and just as Dahlia is about to shoot it another hunter, Eric, appears and does so. Who gets the deer? Was it essential to the outcome in Keeble that the ducks were frightened off, rather than captured by a competitor of the plaintiff? Suppose that Eric is not a hunter but a zealous animal lover who at the last instant frightens the deer away. Does Dahlia have any recourse?20

The second of the two situations described above gets us back to the activities of Greenpeace and other conservation groups mentioned in Note 7 on page 35. An article in the N.Y. Times, Nov. 23, 1990, at A22, reports that interference with the capture or killing of wild animals has become such a problem that most states and the federal government have enacted legislation outlawing hunter harassment on public land. Some challenges to the anti-harassment laws have succeeded on grounds of unconstitutional vagueness and violation of the First Amendment’s protection of free speech. See also James E. Krier, Capture and Counteraction: Self-Help by Environmental Zealots, 30 U. Rich. L. Rev. 103 (1997).

5. The past and the future. Can an early 18th century case like Keeble resolve distinctly modern disputes? See Thomas E. Simmons, When Robots Trespass, The Space Review, Jan. 16, 2017 (using Keeble to address legal questions concerning the mining of asteroids by artificially intelligent robots).

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NOTE, PROBLEMS, AND MORE ON THE RULE OF CAPTURE AND WILD ANIMALS

1. Duck decoys. Duck decoys, invented in Holland in the sixteenth century and introduced into England in the seventeenth, provided an efficient system for capturing wild ducks on a commercial scale. A typical decoy consisted of a large pool of water from which radiated creeks, called pipes, which were roofed with netting. Ducks were attracted to the pool by the use of decoys; next, a specially trained dog, a piper, would appear at the front of a pipe and lure them closer (ducks, like humans, are curious and aggressive animals). When the ducks were well into a pipe, a decoy man, previously hidden by a screen, would appear behind them (but out of sight of the pool) and frighten them farther into the pipe, where they were trapped. This technique enabled the capture of very large numbers of ducks, but didn’t work well if there were disturbances — such as guns going off.

p. 40

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p. 41 The use of duck decoys in English wetlands died out in the mid-1900s (although a few are still operated there, as well as in Holland, to capture birds for banding). The decoy at Minott’s Meadow silted up long ago, but our late colleague Brian Simpson visited the area and reported that the site of the decoy can still be identified, though not with absolute precision. Another site, at Pond Hall, can also be made out. The Pond Hall decoy was owned by Hickeringill. Professor Simpson gathers from his research that the Minott’s Meadow decoy was constructed after Hickeringill’s decoy at Pond Hall, and unusually close to it. This might have provoked Hickeringill, “a very eccentric parson,” to retaliate as he did. Hickeringill, after all, had been first in time.

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Edmund Hickeringill possibly by R.C. Roffe, after J. Jull. Chronicle/Alamy Stock Photo. Reproduced with permission.

p. 42 For more on duck decoys in general, and Keeble v. Hickeringill in particular, see A.W. Brian Simpson, Leading Cases in the Common Law (1995), Chapter 3 of which is entitled “The Timeless Principles of the Common Law: Keeble v. Hickeringill (1700).” The chapter begins: “The contribution of ducks to the common law system has been limited, but significant; they have concentrated the minds of lawyers upon fundamental issues of timeless principle.” Id. at 45.

2. A trespasser who captures a wild animal on the land of another might still have no rights to the animal as against the landowner, even though the landowner never had actual physical possession or control and even though the trespasser does. The court might say that the landowner had “constructive” possession of the animal. See footnote 19 on page 37. Why? See Ray A. Brown, The Law of Personal Property 17 (Walter B. Raushenbush ed., 3d ed. 1975), suggesting that the courts reason as they do because a trespasser should not “be allowed to profit from his wrong.” Notice the explanation gives rise to yet another question: Why is trespass considered to be “wrong”? More on that later. Suppose that T, a trespasser, captures a wild animal on the land of O, a landowner, and carries it off to her own land where she confines it in a cage. Subsequently, T1 trespasses on T’s land and takes away the animal. In a suit by T against T1 for return of the animal, T1 defends on the ground that T had no rights of ownership in the animal. How would you respond, and why? Would your response be different if O had gone on to the land of T and taken the animal back, and T is now suing O for its return?

3. F has established a herd of deer that she keeps for pleasure and an occasional roast of venison. The deer roam about on open government grazing land during the day, but are sufficiently tame and domesticated that they return to a large shelter on F ’s land in the evening. (This is referred to as animus revertendi, or intention to return.) H, a hunter, licensed to hunt deer on the land, shoots one of F ’s deer one day during the hunting season. F sues H for return of the carcass. Who prevails? See Brown, supra, at 18. What policies might be served by holding for F ? For H ?21

On animus revertendi and the origins of domestic animals, see Robert C. Ellickson, Stone- Age Property in Domestic Animals: An Essay for Jim Krier, 2 Brigham-Kanner Property Rights Conf. J. 1 (2013).

4. P imports two silver gray foxes, a male and a female, from Canada for breeding purposes on her Mississippi ranch. The natural habitat of the animals is the north central United States and Canada. The foxes are wild and once having escaped any captivity have no inclination to return. For this reason, P keeps her

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p. 43 pair securely confined in a floored pen with plank walls five feet high. Despite these measures, the male gnaws his way out. P sets traps to recapture him, but to no avail. Some time later the fox is killed by D in a pine thicket 15 miles from P’s ranch. D skins the fox and preserves the hide. P, learning of this, sues for return of the hide. Who should prevail, and why? See Brown, supra, at 18.

5. F, a farmer, is bothered by wild migrating geese on her land and shoots them in violation of the fish and game laws. The government confiscates the carcasses, and F sues for their return. The government wins, the court explaining that the government owns wild animals, may regulate their taking, and may confiscate animals taken in violation of regulations. See State ex rel. Visser v. State Fish & Game Commn., 437 P.2d 373 (Mont. 1968). So when the geese return the next year, F sues the government for damage to her cornfield caused by the geese the government has been said to own. The government wins again, the court holding that the government does not own wild fowl and is not liable for damage caused by them. See Sickman v. United States, 184 F.2d 616 (7th Cir. 1950). Can you square these two holdings? See Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 284 (1977).

NOTES, QUESTIONS, AND PROBLEMS: THE RULE OF CAPTURE AND OTHER “FUGITIVE” RESOURCES

1. Oil and gas. Oil and natural gas commonly collect in reservoirs that underlie acres of land owned by many different people. The resources have a fugitive character in that they wander from place to place. Oil or gas once under the land of A might migrate to space under the land of B as the result of natural circumstances or because B drops a well and mines a common pool beneath A’s and B’s land. The oil or gas mined by B may even have been placed in the pool by A (gas and oil extracted elsewhere are often reinjected for storage or secondary recovery).

When these obviously problematic situations first led to litigation — usually (but not always) a suit by someone like A to recover the value of gas or oil drawn away by someone like B — the courts were induced by the fugitive nature of the resources in question to liken them to wild animals. And because ownership of wild animals had long been settled in terms of the rule of capture, the courts reasoned that ownership of oil and gas should be determined in the same manner. There was just one problem, which was that capture rules created perverse incentives for landowners. The U.S. Court of Appeals for the Fifth Circuit recently explained the issue:

Captain Anthony F. Lucas struck oil in the Spindletop salt dome in Texas in 1901. A black oil plume erupted to twice the height of the drilling derrick, and the well produced a record 800,000 barrels of oil within nine days. Others rushed to seize a share of the abundance. Wells were drilled as close together as physically

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possible; on occasion four wells were drilled beneath one derrick floor. In short order, there were 440 wells on Spindletop’s 125-acre hill. Another 600 were drilled around the hill. Within a few years, most of the wells were dry. As Captain Lucas remarked, the oil was “milked too hard” and “not milked intelligently.”

p. 44 To prevent this “tragedy of the commons,” states have enacted regulations in the years since Spindletop. . . . Although Spindletop is an extreme example, similar wasteful overproduction was once common. A cause was the “rule of capture,” the common law doctrine initially used in hunting disputes to determine ownership of wild animals unconstrained by property borders. Taught during the first days of law school, the doctrine says if you catch it first, it is yours. See Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805). Courts later applied the doctrine to oil and natural gas, reasoning that they too cross property borders as they seep and spill through crevices underground. See Brown v. Spilman, 155 U.S. 665, 669-670 (1895). In that context, the rule means a landowner has a property right in oil and gas produced from wells on the owner’s land, whether or not it migrated from other lands. So, under the common law, one landowner could drain an entire reservoir through wells on the landowner’s property, even if the reservoir extended under others’ lands. Naturally, surrounding owners usually would not sit idly by while valuable resources drained out from under them; instead, they raced to produce all the oil and gas they could through their own property, often drilling multiple wells to extract resources as quickly as possible. Frank Sylvester & Robert W. Malmsheimer, Oil and Gas Spacing and Forced Pooling Requirements, 40 U. Dayton L. Rev. 47, 49 (2015). At Spindletop and elsewhere, this drove up production costs, reduced oil and gas market prices, and unnecessarily decimated the environment.

States intervened, creating often complex regimes to regulate drilling. First, they created spacing laws, which prevent wells from being drilled too close together. Then, to protect landowners who, as a result of spacing laws, were no longer able to drill on smaller tracts of land, they created pooling laws, which allow owners of adjacent tracts to combine their interests to form drilling units that meet spacing requirements. Many states also have “forced pooling laws,” which force unwilling owners to be part of a drilling unit in order to protect their neighbors’ rights to benefit from their mineral rights and to promote states’ interests in preventing waste and promoting economic activity.

TDX Energy, L.L.C. v. Chesapeake Operating, Inc., 857 F.3d 253, 255-257 (5th Cir. 2017) (citations and quotation marks omitted).

Go back to the examples involving A and B above and consider the following:

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(a) Does A have any remedy at all if B starts draining the pool? See Barnard v. Monongahela Natural Gas Co., 65 A. 801 (Pa. 1907) (A can go and do likewise). Compare Union Gas & Oil Co. v. Fyffe, 294 S.W. 176 (Ky. 1927) (suggesting that A might be able to get an injunction against excessive drilling or nonratable extraction). Which of these approaches is better, and why?

(b) Suppose B’s well starts on her land but angles down such that it “bottoms” underneath land owned by A. Does the rule of capture still apply? See 1 Howard R. Williams & Charles J. Meyers, Oil and Gas Law 55, 59 (1986).

(c) Suppose that A has reinjected gas (it could as well be oil) that moves under B’s land. B sues to recover damages for the use and occupation of her land by A’s gas. What result? See Hammonds v. Central Kentucky Natural Gas Co., 75 S.W.2d 204 (Ky. 1934).

The court in the Hammonds case just cited held that A was not liable because, under the rule of capture, the gas was no longer hers. Because fugitive resources are to be treated like “wild animals,” when they “escape” or are “restored to their natural wild and free state, the dominion and individual proprietorship of any

p. 45 person over them is at an end and they resume their status as common property.” 75 S.W.2d at 206.

Hammonds has been criticized and rejected by a number of jurisdictions on the grounds that the analogy to wild animals is silly, that reinjected gas or oil hasn’t really “escaped,” and that in any event it is not “returned to its natural habitat” by reinjection. The Supreme Court of Kentucky eventually overruled Hammonds. See Texas American Energy Corp. v. Citizens Fidelity Bank & Trust Co., 736 S.W.2d 25 (Ky. 1987). Unless it causes tangible harm or interferes with a neighbor’s use of subsurface land, reinjection does not ordinarily give rise to liability for the use and occupation of parts of a reservoir underlying the land of neighbors, even though ownership of the reinjected minerals remains intact. See, e.g., Railroad Commn. of Texas v. Manziel, 361 S.W.2d 560 (Tex. 1962); Chance v. BP Chemicals, Inc., 670 N.E.2d 985 (Ohio 1996).

There is a reason independent of strained analogies to discard the rule in Hammonds: It denied society at large the benefits of economical underground storage. (Do you see why?) There are also reasons — again independent of strained analogies — to discard the rule of capture altogether, yet it still applies to so-called native, or pre-severed, gas and oil. Should it? For that matter, should the rule of capture even be applied to wild animals themselves? Are the sorts of legislative and administrative reforms discussed in TDX Energy, supra, improvements? Or do they create different kinds of intractable problems?

2. Water. The rule of capture has played a formative role in the case of another migratory

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resource — water. Groundwater (water found in underground aquifers), for example, was governed early on by the English rule of absolute ownership, which allowed each landowner over an aquifer to withdraw freely without regard to effects on neighbors.22 “[F]ramed in property language, the rule was in reality a rule of capture, for a landowner’s pump could induce water under the land of his neighbor to flow to his well — water that was in theory the neighbor’s property while it remained in place.” Restatement (Second) of Torts ch. 41, commentary at 256 (1977). Whoever first captured the water, then, was really its owner. The so-called English rule survives in just three states, as during the twentieth century many jurisdictions abandoned the English rule in favor of the American rule. The American rule of reasonable use is itself a rule of capture but with the slight addition that wasteful uses of water, if they actually harmed neighbors, were considered unreasonable and hence unlawful. As with the English rule, there was no principle of apportionment among overlying users. Today groundwater extraction is commonly governed by legislative and administrative programs. See Joseph W. Dellapenna, A Primer on Groundwater Law, 49 Idaho L. Rev. 265 (2013).

In the western states, surface waters and some groundwater are allocated according to an explicit rule of first in time, called prior appropriation. The basic principle is that the person who first appropriates (captures) water and puts it to reasonable and beneficial use has a right superior to later appropriators. (Obviously, complications can arise. Suppose that A begins efforts to appropriate

p. 46 water from a stream — starts building diversion works — before B, but that B finishes her works and puts the water to beneficial use before A. Who is prior to whom? What would Pierson v. Post say?) Prior appropriation doctrine developed as a direct consequence of the scarcity of water in the arid West. Eastern states, where water is abundant, use one or another variant of riparian rights, the thrust of which is that each owner of land along a water source (riparian land) has a right to use the water, subject to the rights of other riparians. At first glance, riparian rights have no relation to a rule of capture, or first in time, but on a closer look they do — because the claims of riparians rest on their underlying holdings of riparian land, and the land itself was originally acquired by first possession. See Richard A. Epstein, Possession as the Root of Title, 13 Ga. L. Rev. 1221, 1234 (1979).

The extraordinarily low ratio of streams to land in the West made riparian law a poor means by which to allocate water there; hence prior appropriation. Neither system is perfect. Riparian rights, for example, take little or no account of the relative productivity of the land the water services, encourage the development of uneconomical “bowling-alley” parcels of land perpendicular to the banks of a stream, and ration poorly when stream levels are low. Prior appropriation encourages premature development and excessive diversion. It also rations poorly when supplies dwindle periodically.

3. Water law and Johnson v. M’Intosh. How should the traditional rights of indigenous populations to use water resources be vindicated? Does the role that clean water often

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plays in religious life matter? For an interesting exploration, see Rhett B. Larson, Water, Worship, and Wisdom: Indigenous Traditional Ecological Knowledge and the Human Right to Water, 19 ISLA J. Intl. & Comp. L. 43 (2012).

4. Analogies and their consequences. The rule of capture follows directly from the powerful principle of first in time. The rule was applied early on to wild animals and then later, by analogy, to other fugitive resources of the sorts we have considered. Reasoning by analogy from the familiar to the new is a common human tendency and a handy problem-solving technique; it is also standard practice among lawyers and judges faced with cases of first impression. See generally Edward H. Levi, An Introduction to Legal Reasoning (1948). Rather than undertaking a general inquiry into the matter, we want to focus on the particular analogy drawn in the materials we have been discussing. What might be the consequences of applying the rule of capture to wild animals — and then to oil, gas, water, and other natural resources? And are the common law rules for fugitive resources applicable to modern disputes over personal property? Consider the following case.

POSTSCRIPT

The ball was initially estimated to be worth as much as $1.5 million, but ended up selling at auction for $450,000. The shortfall gave rise to another legal battle. Popov’s attorney obtained a freeze on his client’s half of the money to help pay a legal bill of $473,530.32. Popov wound up declaring bankruptcy in 2005, with his attorney becoming one of the creditors who litigated to obtain repayment in bankruptcy. See In re Popov, 2007 WL 1970102 (Bankr. N.D. Cal. July 3, 2007). He did not fare well in the bankruptcy litigation. See, e.g., Kaisha v. Dodson, 423 B.R. 888 (Bankr. N.D. Cal. 2010) (finding that Popov fraudulently transferred his shares in his restaurant to his spouse, and awarding those shares to the restaurant’s creditor instead). For much more detail on the dispute, including a very close analysis of the pertinent video footage, interested readers should watch Michael Wranovics’s enjoyable 2005 documentary film, Up for Grabs.

NOTES AND QUESTIONS

p. 52 1. Ballpark injuries. What happened to Mr. Popov is freakishly rare. Fans are almost never hurt fighting over baseballs that are hit into the stands. But another kind of fan injury is much more common. According to a recent Bloomberg News estimate, approximately 1,750 of the 53,000 foul balls hit into the stands at major league baseball games every year injure spectators. An injury occurs about two times in every three games. Though most of the injuries are minor bruises or abrasions, some are life-threatening, and children are more likely than adults to be seriously wounded. See David Glovin, Baseball Caught Looking as Fouls Injure 1,750 Fans a Year, Bloomberg News, Sept. 9, 2014. Are these

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risks relevant to the Popov court’s analysis?

2. Custom yet again. Recall that in Pierson, the dissent suggested that the dispute between Pierson and Post should have been decided on the basis of the custom of hunters. Is Popov an appropriate case for decision on the basis of custom? If custom should be given weight, whose custom should count? For example, the custom among baseball players is that if the ball is hit to the outfield and one outfielder signals his intention to catch the ball by calling out or waving his teammates away, the other outfielders must defer to him and give him the first chance to catch the ball. Should that custom apply to and bind the fans in the stands as well? Even assuming that one small community’s custom is sensible, how are people outside that community to know what the custom is? See Henry E. Smith, Community and Custom in Property, 10 Theoretical Inq. L. 5 (2009).

3. Equitable division: half-measures. The court in Popov reached the Solomonic solution of dividing the proceeds from the sale of the baseball between Messrs. Popov and Hayashi. This “equitable division” remedy might be defensible in situations like Popov, where both parties have made some contribution toward reducing the object to physical custody. Recall that some whaling customs embraced equitable division. See page 30. For instance, whalers around the Galapagos Islands typically split the value of a sperm whale carcass 50-50 between the first ship to affix a drogue to the whale and the ultimate taker.24 See Robert C. Ellickson, A Hypothesis of Wealth-Maximizing Norms: Evidence from the Whaling Industry, 5 J. Law, Econ. & Org. 83, 93 (1989). However, outside of the context of whaling and the examples mentioned in Popov, courts generally eschew half-measure remedies. Was splitting the value of the ball appropriate in Popov? Would splitting the fox’s value have been appropriate in Pierson v. Post? In general, should courts split the value of disputed property more often, or is that just a way of avoiding a difficult decision?

Notes 1 Students wishing to pursue these and other issues regarding the legal situation of Native Americans might well begin their inquiries with Felix Cohen’s Handbook of Federal Indian Law (rev. ed. 2012). Cohen (1907-1953), a man of great heart and energy, made important contributions to a number of fields, including legal philosophy. He was the son of another leading philosopher, Morris Cohen (1880-1947), whose views on “Property and Sovereignty” will be considered shortly.

2 Mention of tracing introduces the idea of a chain of title: The links in the chain are the transactions (conveyances) by which a parcel of land moves from owner to owner over time. The significance and operation of chain of title are examined in Chapters 8 and 9 of this book.

3 John Marshall (1755-1835), the fourth Chief Justice of the United States (from 1801 to 1835), is one of the great figures in the constitutional history of the United States. Marshall had little formal education (and only six weeks of formal legal training!) but had a remarkable mind and character. He was prominent as a

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diplomat, as a legislator, and as Secretary of State before being nominated as Chief Justice by President John Adams. A strong defender of the Constitution, the architect of the doctrine of judicial review, “Marshall raised the office [of Chief Justice] and the Supreme Court to stature and power previously lacking.” Under his leadership, the practice of individual opinions by individual justices largely ceased, dissents were discouraged, and the “Court came to speak with one voice. Usually the voice was Marshall’s.” The quotations are from Robert Faulkner’s essay on Marshall in 4 Encyclopedia of the American Constitution 1672-1676 (2000).

4 Note that the modern indictment of acquisition by conquest is not “regarded as being retroactive to titles made by conquest in an earlier period.” Robert Y. Jennings, The Acquisition of Territory in International Law 56 (1963).

5 The sarcasm and irony seen here and elsewhere in Marshall’s opinion suggest his embarrassment with what he had to write, and there is independent evidence that he was sympathetic to the plight of Native Americans. In an 1828 letter to Justice Joseph Story, for example, Marshall mentioned some reasons to be forgiving of the “conduct of our forefathers in expelling the original occupants of the soil,” but went on to state his view that “every oppression now exercised on a helpless people depending on our magnanimity and justice for the preservation of their existence impresses a deep stain on the American character.” Quoted in The Political and Economic Doctrines of John Marshall 124-125 (John E. Oster ed., 1914).

6 For implicit disagreement with Schlatter’s account, see Adam Mossoff, What Is Property? Putting the Pieces Back Together, 45 Ariz. L. Rev. 371, 379-386 (2003), arguing that the words “one’s own” in the arguments of Grotius and Pufendorf refer not just to what one can get hold of, but to the idea that one has a right to life and liberty, and that actions based on this right are necessary and sufficient to create a right of property. John Locke’s labor theory, to which we will turn momentarily, begins with the same theoretical starting point.

We will be making brief reference to various philosophical perspectives on property from time to time. The literature on the general subject is vast, but the following short list might prove useful to interested students: Becker, supra; C.B. Macpherson, Property: Mainstream and Critical Positions (1978); Stephen R. Munzer, A Theory of Property (1990); J.E. Penner, The Idea of Property in Law (1997); Alan Ryan, Property (1987); Alan Ryan, Property and Political Theory (1984); Schlatter, supra; Jeremy Waldron, The Right to Private Property (1988); Theories of Property (Anthony Parel & Thomas Flanagan eds., 1979); and the essays collected in Property, 22 Nomos (1980).

7 See Gregory S. Alexander, Time and Property in the American Republican Legal Culture, 66 N.Y.U. L. Rev. 273, 277 (1991):

[W]hile the liberal vision underlying individual property rights depicts the self as separated from politics, it is politics that defines the personal sphere — individual property rights depend on state power. Moreover, property is inescapably relational. When the state recognizes and

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enforces one person’s property right, it simultaneously denies property rights in others. Thus the owner’s security as to particular assets comes at the expense of others being vulnerable to the owner’s control over those assets. Ownership is power over persons, not merely things.

8 Daniel Tompkins (1774-1825) was an important figure in the early Republic, especially in New York politics. A self-made man of humble origins, he graduated first in his class from Columbia College. He was an enormously popular figure with the electorate, served twice as Governor of New York State (1807-1817), and was the sixth Vice President of the United States (1817-1825) during James Monroe’s administration. Throughout his public service Tompkins had serious financial problems and was a heavy drinker. During his tenure as Vice-President he occasionally presided over the Senate while inebriated. He died in 1825, disgraced, deeply in debt, and probably alcoholic. See Ray W. Irwin, Daniel D. Tompkins: Governor of New York and Vice President of the United States (1968). — E.

9 Professor Craig Oren has informed us that Livingston, J., was probably Henry Brockholst Livingston (1757-1823). Born into a socially prominent family in New York City, he served in the American Revolution and later as assistant to John Jay when Jay was minister to Spain. Coming back from Spain, Livingston was captured by the British but subsequently released. During his career as a lawyer he became an ardent Jeffersonian and wrote a number of newspaper articles opposing Jay’s Treaty. In 1806, President Jefferson appointed him to the U.S. Supreme Court, where he served until his death.

10 The tone of Livingston’s dissent probably reflects an intention on his part to mock the majority’s pedantry and the seriousness with which a dispute over such a trivial piece of property was being litigated. But he would have done well to pay closer attention to the views of at least one classic figure, John Locke (recall Note 4 on page 15), who was cited by the parties, and argued from his labor theory of property that on facts like those in Pierson, a wild animal should rightly go to the person who first invested labor in pursuit, notwithstanding capture had not yet been achieved. See John Locke, Two Treatises of Government, Book II, §30 (1690): “[T]he hare that anyone is hunting, is thought his who pursues her during the chase. For being a beast that is still looked upon as common, . . . whoever has employed so much labor 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.”

11 Pierson’s first appearance in a property casebook apparently dates to 1893. See Stuart Banner, 21st Century Fox: Pierson v. Post Then and Now, 27 L. & Hist. Rev. 185, 186 (2009). The first casebook to include the dissent, however, appeared in 1951. See Angela Fernandez, Fuzzy Rules and Clear Enough Standards: The Uses and Abuses of Pierson v. Post, 63 U. Toronto L.J. 97, 112 (2013).

12 Arbitration would no doubt have been cheaper but maybe not so satisfying to the real contestants (who seem to have been the fathers of the plaintiff and defendant). The following recollection of Pierson v. Post is quoted in James T. Adams, Memorials of Old Bridgehampton 166 (1916, 1962):

Jesse Pierson, son of Capt. David, . . . saw a fox run down an unused well near Peter’s

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Pond, and killed and took the fox. Lodowick Post and a company with him were in pursuit and chasing the fox, and saw Jesse with it and claimed it as theirs, while Jesse persisted in his claim. Capt. Pierson said his son Jesse should have the fox and Capt. Post said the same of his son Lodowick and hence the law suit contested and appealed to the highest court in the State. . . . This became the leading case often cited. . . . To the public the decision was worth its cost. To the parties, who each expended over a thousand pounds, the fox cost very dear.

But this only went to show that “the love of law suits had not entirely disappeared, although, as by this time lawyers were employed, they were much more in the nature of luxuries.” Id. at 165.

13 Worry not! To a whaler a “waif” is not a homeless child but a pole with a little flag on top. — E.

14 Chapter 89 of Moby-Dick bears the title “Fast-Fish and Loose-Fish.” “A Fast-Fish belongs to the party fast to it,” Melville wrote. “A Loose-Fish is fair game for anybody who can soonest catch it.” The issue in Ghen v. Rich was when a fish was to be considered fast and when loose.

Recall that Professor Rose alluded to all of this in the excerpt that concluded our discussion of Johnson v. M’Intosh and the “discovery” of America (see page 19). In Moby-Dick one can find, in turn, Melville’s own ironic allusion to the question of that discovery, again in Chapter 89: “What was America in 1492 but a Loose-Fish, in which Columbus struck the Spanish standard by way of waifing it for his royal master and mistress?” And “What is the great globe itself but a Loose-Fish? And what are you, reader, but a Loose- Fish and a Fast-Fish, too?”

15 In Ghen v. Rich, Judge Nelson worried that unless he sustained the usage in question, “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.” See page 29. Recall that when Justice Livingston expressed the same concern (but with respect to foxes) in his dissenting opinion in Pierson v. Post, we questioned his reasoning. See page 25. Should we question Judge Nelson’s? And by the way, do you agree with Nelson’s statement (on page 29) that whaling customs “can affect but a few persons”?

16 Professor Heller presents an expanded version of his analysis, written for a lay audience, in The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives (2008). For more on the commons and the anticommons, see Stephen R. Munzer, The Commons and the Anticommons in the Law and Theory of Property, in The Blackwell Guide to the Philosophy of Law and Legal Theory 148 (Martin P. Golding & William A. Edmundson eds., 2005); Lee Anne Fennell, Common Interest Tragedies, 98 Nw. U. L. Rev. 907 (2004); James M. Buchanan & Yong J. Yoon, Symmetric Tragedies: Commons and Anticommons, 43 J.L. & Econ. 1 (2000).

Yet another variant on common ownership is the “semicommons,” so named because it combines private and common ownership. In a semicommons, property is private for some purposes and common for others. On the semicommons, see Henry E. Smith, Semicommon Property Rights and Scattering in the Open Fields, 29 J. Legal Stud. 131 (2000); Zachary C.M. Arnold, Note, Against the Tide: Connecticut

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Oystering, Hybrid Property, and the Survival of the Commons, 124 Yale L.J. 1206 (2015). For an overview of all the variations on common property, see Lee Anne Fennell, Commons, Anticommons, Semicommons, in Research Handbook on the Economics of Property Law (Kenneth Ayotte & Henry E. Smith eds., 2009); Commons and Anticommons (Michael A. Heller ed., 2009).

17 Chief Justice Holt was one of the greatest English judges. After the flight of James II to France, abandoning the throne, Holt, as a member of the House of Commons, played a leading role in establishing a constitutional monarchy under William and Mary, a system that survives today. Subsequently he was appointed Chief Justice, which office he held from 1689 to 1710. He was noted for his integrity and independence and for his common sense as well as his deep learning in the law. Holt laid down the rule that the status of slavery could not exist in England; as soon as a slave breathed the air of England he was free. Smith v. Brown & Cooper, 2 Salk. 666, 90 Eng. Rep. 1172 (1703). Chief Justice Holt was the first of a line of enlightened judges who, in the eighteenth century, shaped English law to accommodate the needs of a mercantile society that would dominate world trading. Lord Mansfield, who served as Chief Justice from 1756 to 1788, was perhaps the most notable of these. — E.

18 The citation indicates a case decided in the eleventh year of the reign of Henry IV (1410). A variant is Y.B. 11 H.IV, 47. Y.B. refers to one of the Year Books, a collection (running from 1283 to 1535) of anonymous notes reporting cases. — E.

19 The word constructive, a modifier familiar to all lawyers, will appear recurrently in this and other courses. One could say that the word is a way of pretending that whatever word it modifies depicts a state of affairs that actually exists when actually it does not. The pretense is made whenever judges wish, usually for good but often undisclosed reasons, a slightly different reality than the one confronting them. One might call this reasoning by strict analogy: Situation A is magically transformed into Situation B by incantation of the word constructive. Then the rule governing Situation B is applied to Situation A because the two situations are, after all, identical! Why might judges wish to pretend that a landowner possesses the wild animals on his land when actually he does not? See Problem 2 on page 42.

20 An illuminating way to begin thinking about both of these questions is this: Try to imagine what instrumental ends — or objectives or policies — the decisions in Pierson and Keeble might have aimed to serve. Consider the schoolmaster of the “antient school” discussed in Keeble. A subsequent schoolmaster scares away the first school’s students. Cause of action. Lures away the first school’s students. No cause of action. Why the difference in results, especially given that the “antient school” was in each instance first in time? See Harold Demsetz, Wealth Distribution and the Ownership of Rights, 1 J. Legal Stud. 223, 231-232 (1972).

21 As an aside — but a revealing one — suppose that F has a neighbor who also keeps a herd of deer. A doe belonging to F roams onto the neighbor’s land, takes up with a buck in the neighbor’s herd, is fed by the neighbor, and eventually bears a fawn sired, presumably, by the neighbor’s buck. Who owns the fawn, and why? See Carruth v. Easterling, 150 So. 2d 852 (Miss. 1963), and the marvelous essay by Felix Cohen, Dialogue on Private Property, 9 Rutgers L. Rev. 357, 365-369 (1954). In his article, Cohen

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claimed that this so-called rule of increase is universal, observed in all legal cultures. It appears, however, that the English common law made an exception in the case of cygnets (baby swans), “which were divided equally between the owner of the cock and the owner of the hen . . . because of the strict monogamy of swan cocks.” Thomas W. Merrill, Accession and Original Ownership, 1 J. Legal Analysis 459, 465 n.6 (2009).

22 What sorts of effects? See generally the Note on Lateral and Subjacent Support on page 738.

23 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. . . .

24 “A drogue was a float, perhaps two feet square, to which the trailing end of a harpoon line was attached. The drogue was thrown overboard from a whaling boat after the harpoon had been cast into the whale. This device served both to tire the animal and also to mark its location, thus setting up the final kill.” Ellickson, supra, at 91.

My Notes

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