Three cases/four tales: commons, capture, the public trust, and property in land.

• Author: Goble, Dale D.
• Position: The Rule of Capture and Its Consequences

The past is a foreign country: they do things differently there. L.P Hartley (1)

 I. INTRODUCTION II. PIERSON V. POST. TAKING THINGS FROM THE COMMONS A. Capture as Possession B. Capture as the Law of the Rush III. ARNOLD V. MUNDY. LIMITING CAPTURE A. Before Mundy: The King's Prerogative and Wildlife 1. From Personal to Proprietary 2. Royal Animals and Royal Rivers 3. Sovereignty and Property B. Arnold v. Mundy: Republicanizing Royal Prerogative

3. After Mundy : State Ownership as a Limit on Capture IV. INHABITANTS OF STOUGHTON v. BAKER ANIMALS FERAE NATURAE AS A LIMIT ON PROPERTY IN LAND (THE WILDLIFE EASEMENT) A. The Common-Law World of the Early Republic B. The Rise of the Police Power V. CONCLUSIONS

   I. INTRODUCTION

   Judges--like the rest of us--tell stories to explain their decisions. Thus this article becomes a twice-told tale of the stories three courts told about animals ferae naturae. (2) The first story--originally written by the New York Supreme Court--is an allegory about the killing of a fox. (3) The New Jersey Supreme Court of Judicature wrote the second story to justify its decision on the ownership of oysters growing in the tidal reaches of the Raritan River. (4) In the final narrative, the Massachusetts Supreme Judicial Court weighed the balance between public and private rights in determining who must pay for the modifications to permit anadromous fish to pass upstream over a dam to spawn. (5)

   The three cases examine four recurrent topics in natural resource law: common property, capture, private property, and the public trust. The first case---the story of Pierson, Post, and the fox--is a story of how things come to be private property by capture from the commons. The tale of the Raritan oysters suggests a limit on the fox story: the government's responsibility as a trustee for the public to protect common property from private appropriation. Finally, the story of the shad and alewives, and Baker and Vose's milldam on the Neponset River, also examines questions of public trust/common property, but from the perspective of private property in land: its lesson is that such property is subordinate to the public's interest in wildlife. (6)

   Each of the cases probes a different aspect of the balance between public and private. What scope of unchecked autonomy is to be accorded the individual? What does the individual owe to society? The early nineteenth century has particular relevance to these questions. During this period, federal and state judges worked to reconfigure the common law to account for two ongoing revolutions: the political revolution from monarchy to republic, and the economic-social revolution from agrarian-communitarian to market-individualistic. (7)

   Animals ferae naturae also have a particular relevance to these issues. As Locke wrote a century earlier, "In the beginning, all the world was America" (8)--by which he meant, in the state of nature all the world was unowned and available for the taking. (9) For Locke and the Enlightenment civilians (Grotius, (10) Pufendorf, (11) Barbeyrac, (12) Bynkershoek, (13) and Vattel (14)) animals ferae naturae were the paradigm of an unowned thing; they were a then-current analogue for the "state of nature," that imagined and imaginary starting point for society. (15) Wildlife law, in short, has often been about more than wildlife, it has often been a speculation about "property." And in the first decades of the nineteenth century, this speculation occurred in a place that seemed to be defined by riotously exuberant abundance. (16) How did this anomalous situation affect the debate and shape assumptions? Were things truly unowned even in such a place?

   2. PIERSON V. POST. TAKING THINGS FROM THE COMMONS

1. Capture as Possession

   The law often embodies its foundational propositions in stripped-down, mythic allegories. Pierson, Post, and the fox is one such story--a tale that offers a partial answer to what Carol Rose, in a long tradition of legal philosophers, has called "a fundamental puzzle for anyone who thinks about property": "how do things come to be owned?" (17)

   Lodowick Post was out with friends and hounds "upon a certain wild and uninhabited, unpossessed and waste land" when he jumped "one of those noxious beasts called a fox." (18) Just as Post and his companions were about to seize their quarry, Jesse Pierson stepped in, killed the fox, and carried it off. When Pierson refused Post's demand for the carcass, (19) Post sued out a writ of trespass on the case. The justice court held that Post was indeed entitled to the fox. Pierson obtained a writ of certiorari to bring the case to the New York Supreme Court, arguing that Post had no property in the fox and thus no claim that he had been injured. (20)

   Both parties agreed that ownership could only be acquired by "occupancy"--that is, possession--but they differed on what occupancy required. Pierson argued that physical possession was required; (21) Post countered that "[a]ny continued act" demonstrating "the intention of exclusively appropriating that which was before in a state of nature" is "equivalent to occupancy." (22) The parties thus framed the issue before the court as a choice between actual and constructive possession.

   The majority sided with Pierson. Citing a long list of "ancient writers upon general principles of law," (23) the court concluded that "actual bodily seizure" or, at a minimum, "mortally wound[ing] or greatly maim[ing]" the animal, was required because these give the pursuer the "certain control" required for actual possession. (24) Thus, "mere pursuit gave Post no legal right to the fox, but ... he became the property of Pierson, who intercepted and killed him." (25) This conclusion was buttressed for the majority by the role possession played in providing "certainty, and preserving peace and order in society." (26)

   The dissent began with the proposition that examining the customs of those actually engaged in the activity is preferable to "poring over" the writings of "Justinian, Fleta, Bracton, Ptffendorf, Locke, Barbeyrac, or Blackstone." (27) Since there was no evidence of the customs of sportsmen, Livingston (like a law-and-economics sage) contended that "our decision should have in view the greatest possible encouragement to the destruction of an animal, so cunning and ruthless in his career." (28) He believed that awarding the fox to the pursuer would achieve this objective.

   The majority and dissent agree on the fundamental propositions: possession is required for ownership and control is the key; it is the control of nature that is the root of property. They also agree that property allocation rules ought to serve utilitarian objectives. They differ only on the degree of control required. The majority favors the unequivocal notice that comes from the act of physical possession because it will reduce litigation with its attendant social costs; the dissent prefers to reward the socially useful labor of the hunters. Neither, however, addresses the more fundamental question: why does possession create title? (29)

   The "ancient writers," to whom both the majority and dissent refer, offered two different answers to this question. Grotins and Pufendorf advanced a consent theory: "it is to be supposed that all agreed, that whatever each one had taken possession of should be his property." (30) Locke, who thought the likelihood of consent was vanishingly small, (31) countered with a labor theory: when a person removes something from nature "he hath mixed his Labour with it ... and thereby makes it his Property." (32)

   Although echoes of Grotius and Locke might be heard in both the majority and dissent, the law is (as we are often reminded) neither logic nor philosophy, but rather a practical thing. (33) In their unexamined assumption that possession is sufficient to establish title, the majority and dissent in Pierson v. Post echo Blackstone, who thought that the dispute between Grotius and Locke "savours too much of nice and scholastic refinement"; it was sufficient, Blackstone concluded, "that both sides agree ... that occupancy is the thing by which the title was in fact originally gained." (34)

   Beyond this, however, the court had no need to consult the "ancient writers upon the general principles of law" (35) because there was ample precedent at common law. In 1592, for example, the King's Bench had decided that a person could acquire property in wild animals per industriam--that is, "by industry as by taking them [i.e., capture], or by making them mansueta [naturae, i.e., tamed]." (36) The court also defined the property that could be acquired in animals ferae naturae as "qualified": it is possessory in the sense that it is lost if the animal escapes. (37) Thus, arguably at least, the majority got it right: Post's industry had yet to achieve control over the animal.

   The rule of capture envisions animals ferae naturae as (at least potentially) the stuff of property. But wildlife is an uncommon sort of property. (38) In addition to being "qualified and possessory," as the King's Bench noted, an animal ferae naturae is both alive and dependent for its continued survival on the forbearance of humans, a forbearance that history demonstrates is uncommon. Wildlife, as vagrant stuff subject to capture, requires the tolerance of everyone who might kill it or destroy its habitat--and much of the story of wildlife in America has been a recurring demonstration of the tragedy embedded in the saga of Pierson, Post, and the fox.

2. Capture as the Law of the Rush

   America has been a rush from the beginning. (39) There have been gold rushes and timber rushes, (40) rushes to grow cows (41) and to claim newly opened lands. Nor are rushes solely historical: there now is a rush to capture the insecticide intolerance of pests. (42) By capturing and controlling a bit of nature--grass or trees or animals--and converting it into dollars, natural capital is transformed into...