Fundamentals First Possession
ACQUISITION BY CAPTURE If you are first in time to have actual possession or constructive possession then you own it. Actual Possession: If I immediately possess or occupy it, I own it.
♦ Pierson v. Post 1805: On wild territory, Post chases fox with hounds in sight of Pierson; Pierson shoots fox and carries it off. Rule: Mere pursuit without mortal wounding animal or depriving it of its liberty is not possession or occupancy. Pierson wins, against fox hunting culture, which would have awarded the fox to the first pursuer. POLICY: To promote certainty.
If I do all that is possible to establish possession, then it is mine.
♦ Ghen v. Rich 1881: Ghen killed whale with bomb-lance that contained his identifying mark; three days later another found whale ashore and sold its oil to Rich. Rule: In line with whaling custom, the person who kills first with the bomb-lance gets the whale. POLICY: To promote certainty and the killing of whales. ♦ Animus revertandi: If animal has tendency to return, then it is not wild. ♦ Rule of Increase: The owner of the mother gets its increase.
Constructive Possession: If it is on or under my land, then I own it.
♦ RATIONE SOLI: Wild animals on my property belong to me. ♦ Keeble v. Hickeringill 1707: Defendant comes near Plaintiff’s resort/duck pond and fired several rifle shots to scare ducks away. Keeble owns ducks because he owns land under them. For Plaintiff. ♦ Rule of capture applied to oil, gas, and water: * If you own the land, you own stuff directly under your land. * Everyone over a pool of oil, though it traverses boundaries, can drill as much as possible. * Slant drilling is a trespass. * Where water is scarce, prior appropriation applies to ground water; first driller has sole water rights.
Fundamentals First Possession