Acquisition By Capture: Animals
Native, non-domesticated animals (or by extension, other fugitive resources) are owned by that person who “first possesses” the resource.
A property right in an animal ferae naturae ( a wild animal) can be acquired only by the actual occupancy or possession of the animal.
Actual Possession requires:
An intent to capture;
Actual control over the animal.
Firm Possession of the animal must be established (minority rule)
Mere pursuit of an animal (a manifestation of intent, without actual control) is insufficient.
Acquisition by Capture: Domesticated Animals
Doctrine of “Animus Revertendi”- Animals that have been captured and domesticated, which then graze somewhere else but return “home” on a regular basis, “belong” to the person who domesticated them.
Acquisition by Capture: Exotic Animals
Doctrine of “Exotic Animals”- If an animal that you know or should know is not native to the area, most state laws provide that you do not acquire ownership of the animal simply because you captured it. You should assume that the animal escaped from its true owner.
Acquisition of Fugitive Natural Resources: Caves
Old Rule: “Capture”-If you discovered the cave, then you owned the entire cave even if it meandered under another person’s land.
RULE NOW: Doctrine of Constructive Possession- The owner of the surface land owns everything above and below ground.
Acquisition of Fugitive Natural Resources: Minerals (e.g., Oil)
Common Law Rule: “Capture”- take as much as you want from a common deposit that runs under your land, even if that deposit runs under other landowner’s lands.
Statutory Rule in MOST states: There is a limit on the number of wells/digs one can have on one’s land.
Acquisition of Fugitive Natural Resources: Percolating/ Ground Water
Majority Rule: Typically you could take as much as you wanted but today there is a limit on the amount of water you can withdraw from an aquifer.
Minority Rule: Doctrine of “prior appropriation” which rewards the first landowner to withdraw water.
Acquisition of Fugitive Natural Resources: Streams/Lakes or “Surface Water”
“Riparian Rights”- Only owners of the land contiguous to the body of water have the right to use it.
Natural Flow Rule: Have to put back the same amount of water taken and a riparian owner cannot use the water on noncontiguous pieces of land.
Reasonable Use Rule (Majority Rule): Allowed to take a reasonable amount of water. Domestic use prevails over commercial use. Can use for noncontiguous land, if no harm is done to other riparian owners.
Acquisition of Fugitive Natural Resources: Unusual or “Storm” Water
“Prior Appropriation” Doctrine- whoever first appropriates such a body of water gets to use it.
MAJORITY Rule: Riparian rights.
If want to use:
Use however you want so long as it doesn’t unnecessarily harm owners downstream
If you want to get rid of:
Common Enemy Doctrine: Do what you have to to get rid of it; tendered by reasonableness standards.
Natural Servitude Doctrine: cant obstruct water flow.
Acquisition by Capture: Miscellaneous Items (e.g., baseball)
In order to establish conversion, the Plaintiff must prove that he or she owned the item in question initially; however, there is no requirement that the defendant know that the property belongs to another or that the defendant intends to dispossess the true owner of its use and enjoyment.”
The first person to “firmly” or “completely” possess an item abandoned by its owner owns the item.
Acquisition by Discovery
In order to claim as one’s own an item previously owned in common, one must be the first to “possess” that item through his or her industry.
The exploitation and profitable use of land are promoted by the “First Possession” Rule.
