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C. Occupatio through Hunting and Fishing: Cases 94–96

Chapter 3: Acquiring Ownership and Losing Ownership

Cases 94–96. The rules set forth in these cases are largely preserved in the Louisiana Civil Code, which is the state law of the only civil law jurisdiction in the United States:

LA C.C. Bk. III, T. XXIII, Title XXIII (2007)

Chapter 1. Occupancy

Art. 3412. Occupancy
Occupancy is the taking of possession of a corporeal movable that does not belong to anyone. The occupant acquires ownership the moment he takes possession.

Art. 3413. Wild animals, birds, fish, and shellfish
Wild animals, birds, fish, and shellfish in a state of natural liberty either belong to the state in its capacity as a public person or are things without an owner. The taking of possession of such things is governed by particular laws and regulations.

The owner of a tract of land may forbid entry to anyone for purposes of hunting or fishing, and the like. Nevertheless, despite a prohibition of entry, captured wildlife belongs to the captor.

Art. 3414. Loss of ownership of wildlife
If wild animals, birds, fish, or shellfish recover their natural liberty, the captor loses his ownership unless he takes immediate measures for their pursuit and recapture.

Art. 3415. Wildlife in enclosures
Wild animals or birds within enclosures, and fish or shellfish in an aquarium or other private waters, are privately owned.

Pigeons, bees, fish, and shellfish that migrate into the pigeon house, hive, or pond of another belong to him unless the migration has been caused by inducement or artifice.

Art. 3416. Tamed wild animals
Tamed wild animals and birds are privately owned as long as they have the habit of returning to their owner. They are considered to have lost the habit when they fail to return within a reasonable time. In such a case, they are considered to have recovered their natural liberty unless their owner takes immediate measures for their pursuit and recapture.

Art. 3417. Domestic animals
Domestic animals that are privately owned are not subject to occupancy.

Regarding the common law “Rule of Capture,” which was itself borrowed from civilian doctrine,  Carol M. Rose writes: “[A]nalogies to the capture of wild animals show up time and again when courts have to deal on a nonstatutory basis with some ‘fugitive’ resource that is being reduced to property for the first time.” “Possession as the Origin of Property,” U. Chi. L. Rev. 73, 75 (1985): quoted by Dukeminier et al. (2010) at 36–39 with discussion of oil and gas and water.

Discussion Question:
  1. An interesting application of the rule of capture, although modified in its result by equitable considerations, is to be found in Popov v. Hayashi WL 31833731, Cal.Superior (2002).  The case arose from “competing claims to the ball that Barry Bonds hit out of the park for his record-breaking seventy-third home run of the 2001 season. . . . Popov caught the home-run ball, although maybe not securely; he was engulfed by a crowd as the ball entered his glove, tackled, grabbed, hit, and kicked.  The ball ended up on the ground.  Hayashi picked it up and put it in his pocket.” To whom did it belong?  See Dukeminier et al. (2010) at 114 with discussion.  


Chapter 3: Introduction | A. Cases 67–71 | B. Cases 72–93
C. Cases 94–96 | D. Cases 97–98 | E. Cases 99–101
F. Cases 102–104 | G. Cases 105–119 | H. Case 120


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