Professor Eric Freyfogle
Property Spring 2012

* Acre = 43,560 sq feet (10 sq chains) * 4 rods = 1 chain = 66ft * In Western states, a person must obtain a usage right separate from the ownership of the land * To acquire a water right, one must: 1. Divert the water from the river 2. Apply it to a beneficial use a. Policy: because water is scarce b. Actual pattern of beneficial use is what you are limited to regardless of paper rights until then, you’re merely preparing it * Wildlife must be acquired separately * If you capture an animal, it is yours until it escapes and get backs into its natural habitat

1) First-in-time – the first person to claim it, has property rights to it a) Pierson v. Post – Pursuit alone not enough; Occupancy is for sure ok; Mortal wounding probably ok; Traps probably ok i) Post was in pursuit of a fox ii) Pierson killed the fox and carried it off, aware that the fox was being hunted iii) General Rule: property of animals ferae naturae is acquired by occupancy only (1) Occupancy: “The actual corporeal possession of them.” iv) "[A]ctual 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." v) “Also encompassing and securing such animals with nets and toils, or otherwise intercepting them in such a manner 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.” vi) Easy application of a rule clear and certain (2) Minimizes unnecessary litigation vii) Dissent: [Counterintuitive] Livingston criticizes majority for not thinking like sportsmen – interruption of the hunt (sporting argument); and foxes need to die (killing argument) = don’t mesh because he claims people will stop hunting, which only works for the sporting argument b) Leisner v. Wanie – Mortal wounding; Pursuit/intent to capture; Animal basically down = Property Rights viii) Wanie mortally wounded wolf and it was almost in his possession ix) Leisner came upon it in a hole and killed it x) "The instant a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another's intervening and killing it" xi) Don’t want to discourage hunting c) Buster – Serious wounding and overnight delay = no ownership xii) Compare to Haslem and the 24 hour seaweed grace period. d) Dapson v. Daily – No license = no property; Deer not reduced to inevitable capture = also not good xiii) P shot deer, unclear as to whether it went down, but galloped away xiv) D shot the deer, carried it away xv) P wasn’t licensed to hunt and therefore cannot claim the rights of a huntsman xvi) evidence does not establish that the animal "was so wounded by the plaintiff that it was about to be deprived of its natural liberty." e) State v. Shaw – Fish in trap = property of trap setter xvii) Dude had a boat with a net, fish could get out of net xviii) D took some of the fish from the net xix) Because escape was practically impossible, fish were owned by owner of net (3) “To acquire property rights in animals ferae naturae, the pursuer must bring them into his power and control, and so maintain his control as to show that he does not intend to abandon them again to the world at large.”