Property I -JLP - POSSESSION OF WILD ANIMALS: ACQUIRING...

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P OSSESSION OF W ILD A NIMALS : ACQUIRING TITLE 1) Definitions: a) Wild Animals : does not include domestic or domesticated animals b) Possession: involves i) physical relationship and ii) some intention to appropriate (broad general sense) 2) General Rule: Gaining Title: The Rule of Capture for Wild Animals : a) Deprive of natural liberty; (1) Not Enough: (a) pursuit alone is not enough; Pierson v. Post (2) Enough: Ultimate Control, need not be absolute : (a) mortally wounding, render escape improbable (b) Industry custom: do all that is practical to assume possession based upon circumstances (i) iron hold the whale because whales are so big 2) Purpose/Policy : i) Competition goal to kill animals; conservation policies have altered this ii) Labor theory: encourage industrious; who did all the work; want to reward efforts esp when significant financial concerns ; However: must come to fruition ; must be effective; e.g. never got around to patenting an idea, but it was still my idea; pursuit alone not enough iii) Economic theory: protect and develop industry iv) Gratifying reasonable expectations v) Ease of administration; categorical rules lead to certainty 3) Exceptions/Limitations to the Rule of Capture of Wild Animals : a) Ratione Soli : possessor of land has superior opportunity to appropriate things on the land; title to all animals captured on land; NOT deemed in possession (1) Policy: discourage trespassers ii) Malicious interference with another’s livelihood; Keeble , D shot off gun and scared away interfering with duck decoy; (1) Policy: Unfair competition iii) Exception to Ratione Soli--Navigable waters: owners of navigable waterway cannot stop because of public right of fishery (1) Note Exception: Mussel case; not right of “fishery” because sedentary (2) But note state can grant exclusive fishing rights to rivers that are navigable in fact e.g. Douglas lodge 4) Losing Title/Rule of Escape : a) Basic idea : title can be lost because it is a qualified property interest, i) peculiar to wild animals ii) NOT applicable to domestic or domesticated animals e.g. Chester the parrot b) Definition: i) Must regain natural liberty in broad sense (1) Enough: (a) Fend for itself (b) Free from artificial restraint c) Policy i) Labor Theory and Reasonable expectation in favor of second appropriator (seal case) ii) Need not regain natural habitat (Pacific sea lions escape into Atlantic) iii) Practical: identity issues; litigable factual issues d) Oil and gas analogy; ability to move freely; might shift without will of landowner; e.g. ok to extract gas of another if shifted under property i) Policy: effort; reasonable expectation; identification; e) Exceptions to Rule of Escape i) Animus revertendi: habit of return ii) Hot pursuit proximity in time and space iii) Public Interest or Special nature of some activity unknown at common law; silver fox fur breeding 1
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(1) Zoos, breeding; Lion cub in NYC (a) Lowered expectation on part of second appropriator
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Property I -JLP - POSSESSION OF WILD ANIMALS: ACQUIRING...

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