§ 3.01  The Origin of Property Rights [23-24]

 

Property courses sometimes begin with the ownership of wild animals because this subject helps answer a key question: how do property rights begin?  Because wild animals in nature are unowned, the rules governing their acquisition help us understand the policies that influenced American property law.

 

§ 3.02 The Capture Rule in General [24-28]

 

                        [A]       Basic Rule

 

No one owns wild animals in their natural habitats.  Under the common law capture rule, property rights in such animals are acquired only through physical possession.  The first person to kill or capture a wild animal acquires title to it.

 

                        [B]       Defining “Capture:” Pierson v. Post

 

The leading case interpreting the capture rule is Pierson v. Post, 3 Cai. R. 175 (N.Y. 1805).  Post, a hunter, found and pursued a fox over vacant land.  Pierson, fully aware that Post was chasing the fox, killed it himself.  When Post sued Pierson for the value of the fox, the court held that Pierson was the true owner, because he had been the first to actually kill or capture the fox, however rude his action may have been.

 

                        [C]       Release or Escape After Capture

 

In general, ownership rights end when a wild animal escapes or is released into the wild.  However, if a captured wild animal is tamed such that it has the habit of returning from the wild to its captor, it is still owned by the captor.

 

§ 3.03 Evaluation of the Capture Rule [28-29]

 

Today the capture rule is condemned by legal scholars for the same reason that once supported it: it encourages the destruction of wild animals.

 

§ 3.04 Rights of Landowners [29-30]

 

English law held that the owner of land was in constructive possession of the wild animals on the land.  American courts reject this view; here, a landowner owns no rights in wild animals on her land.  However, because an owner may bar hunters and others from trespassing on her land, this gives an American landowner the exclusive opportunity to capture wild animals on the land, subject of course to hunting laws.

 

§ 3.05 Regulation by Government [30-31]

 

Modern game laws and other government restrictions have substantially eroded—thought not erased—the capture rule.  Despite the breadth of these regulations, however, state and federal governments do not “own” wild animals in a proprietary sense.