Acquisition by Capture Cont’d - Houston, · PDF fileAcquisition by Capture Cont’d...

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U N I V E R S I T Y U N I V E R S I T Y H O U S T O NH O U S T O Nofof Professor Marcilynn A. Burke Copyright2009 Marcilynn A. BurkeAll rights reserved. Provided for student use only.
Acquisition by Capture Contd
Carol M. Rose, Possession as the Origin of Property
Keeble v. Hickeringill Constructive Possession
More on Wild Animals Fugitive Resources
Carol M. Rose,Possession as the Origin of Property,
Perspectives, p. 180 Theories (3) Lessons from
Johnson v. MIntosh,Pierson v. Post, and Ghen v. Rich
Texts and subtexts and cultural relativity
Visual signals artificial systems

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Keeble v. Hickeringill, Queens Bench (1707),
Casebook p. 27.
Constructive possession Ratione soli
Malicious interference with trade Benefits to the market
Keeble v. Hickeringill Contd
Effect on Pierson v. Post? Instrumental end?

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Keeble v. Hickeringill Contd
Keeble v. Hickeringill
Contd

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Practical Implications of Coase
The law should assign entitlements to the party who values them most, so that the costly process of exchanging entitlements is unnecessary.
Alternatively, if the party who values the entitlement the most cannot be identified, the entitlement should be assigned to the party who can initiate an exchange at the lowest cost.
Robert Cooter (Perspectives, p. 209) argues that
, Whalers, and Coase
To whom should we assign the entitlement?
Who values the entitlement the most? Who is more identifiable for the sake
of negotiation?

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, Whalers, and Other Considerations
To whom should we assign the entitlement?
Who is providing the more useful or valuable labor?
What are the policies or instrumental ends behind the rule you choose?
The Rule of Capture and Wild AnimalsProblem 1, p. 31 Relativity & Trespass
T, a trespasser, captures a wild animal on the land of O, landowner, and carries it off to her own land where she confines it in a cage.
T1 trespasses on Ts land and takes away the animal.
In a suit by T against T1, who should win?
What if O went and took the animal from T and T sues O. Who should win?

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The Rule of Capture and (Wild) AnimalsProblem 2, p. 32 Constructive Possession
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 Fs land in the evening.
H, a hunter, shoots one of Fs deer one day during the hunting season..
F sues H for return of the carcass. Who prevails?
What policies might be served by holding for F? For H?
The Rule of Capture and Wild Animals Problem 4, p. 32 - Ownership
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 explains that the government ownswild animals, may regulate their taking, and may confiscate animals taken in violation of regulations.

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The Rule of Capture and Wild Animals Problem 4, p. 32 Ownership Contd
When the geese return the next year, F sues the government for damage to her field caused by the geese.
The government wins again, the court holding that the government does notown wild animals and thus is not liable for any damage caused by them.
Who Owns Wild Animals?p. 32, n.17
What if damage were caused by wildlife that the government reintroduced to the local environment?
See Christy v. Hodel, 857 F.2d 1324, 1335 n.9 (9th Cir. 1988), cert. denied, 490 U.S. 1114 (1989).

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Wolf ReintroductionID, MT, WY, UT, AZ & NM
3,491Total Number of Animals Killed By Wolves (1,196 sheep, 2,195 cattle, 100 other (llamas, guard dogs, horses, mules, pigs, chickens, etc.))
$330Average Payment Per Animal$52,428Average Payment Per Year
817Number of Payments$1,153,415Total Payments
The Bailey Wildlife Foundation Wolf Compensation Trust 1987-2008
Defenders of Wildlife
Learn more about the Bailey Wildlife Foundation Wolf Compensation Trust at http://www.defenders.org/wolfcomp.html.
The Rule of Capture and Other Fugitive Resources: Oil and Gas
There is a common pool of oil beneath As and Bs land.
Does A have a remedy at all if Bstarts draining the pool?
Suppose Bs well starts on her land but angles down such that it bottoms underneath As land. Does the rule of capture apply?

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The Rule of Capture and Other Fugitive Resources: Oil and Gas Contd
There is a common pool of oil beneath As and Bs land.
Suppose A reinjected oil that later moves under Bs land. B sues to recover damages for use and occupation of her land by As oil. What result?
The Rule of Capture and Other Fugitive Resources: Groundwater
Rule of Capture English common law rule of absolute right (limited by doctrines against waste and malicious injury) Texas.
American Rule reasonable use, usually measured by whether it is used on the land from which it is pumped.

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The Rule of Capture and Other Fugitive Resources: Groundwater Contd
Correlative Rights fair and just proportion, favoring on-land use as the American Rule, but based on amount of land owned.
Prior Appropriation First in time, first in right intentional diversion and beneficial use.
The Rule of Capture and Other Fugitive Resources: Surface Water
Riparian/Natural Flow Eastern States reasonable use and not damaging others
Colorado Doctrine/Prior Appropriation Rocky Mountain States diversion and beneficial use
California Doctrine/Mixed Riparian and Appropriative Rights Western States, including Texas

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