Appropriation or "Take"



Through the passage of history, various legal authorities have disagreed as to the degree of control necessary to constitute a private appropriation or "take" of such animals through occupancy, so as to exclude the claims of all other persons to the same animals under law. These concepts of "acquisition" and degree of "control," as relate to individual ownership by possession and occupancy, have also been applied to American legal principles governing ownership of oil, gas and water.

(A good review of historic arguments is provided in Pierson v. Post 3 Cai. R. 175 (N.Y. Sup. Ct. 1805.) The incident at issue in this case occurred upon unoccupied "wastelands", and therefore did not involve other issues such as the relationship of the exclusive right to appropriate ("take" or hunt) wild animals "propter privilegium" as an incident of land ownership - "right of soil" (ratione soli.)

Justice Tompkins delivered the opinion of the court and provided the summary:. . .

  "Justinian"s Institutes, lib. 2, tit. I, sect. 13 [Justinian: Byzantine emperor 527-565 A.D.], and Fleta, lib. III, c. II, page 175 [English legal treatise, late thirteenth century], adopt the principle, that pursuit alone, vests no property or right in the huntsman; and that even pursuit accompanied with wounding, is equally ineffectual for that purpose, unless the animal be actually taken. The same principle is recognized by Bracton, lib. II, c. I, page 8 [English legal treatise, early to mid-thirteenth century].

  "Puffendorf, lib. IV, c. 6, sec. 2, [[section]]10 [late Seventeenth century], defines occupancy of beasts ferae naturae, to be the actual corporal possession of them, and Bynkershoek is cited as coinciding in this definition. It is indeed with hesitation that Puffendorf affirms that a wild beast mortally wounded, or greatly maimed, cannot be fairly intercepted by another, whilst the pursuit of the person inflicting the wound continues.

  "Barbeyrac, in his notes on Puffendorf, is of the opinion that actual 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, has deprived him of his natural liberty, and brought him within his certain control. So 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 labor, have used such means of apprehending them..." (Emphasis mine.)

Justice Field in his dissenting opinion in Geer v. Connecticut, 161 U.S. 519 (1896), expounds upon the concepts of possession, control and use: [It should be noted that the decision in Geer was later overruled in respect to any presumption of actual State ownership of animals "ferae naturae," either as a proprietary interest or in ownership in trust for the collective people of the State. See Hughes v. Oklahoma, 41 U.S. 322 (1979).]

  "....Although there are declarations of some courts that the state possesses a property in its wild game, and, when it authorizes the game to be killed and sold as an article of food, it may limit the sale only for domestic consumption, and the supreme court of errors of Connecticut, in deciding the present case, appears to have held that doctrine, I am unable to assent to its soundness, where the state has never had the game in its possession or under its control or use. I do not admit that in such case there is any specific property held by the state by which in the exercise of its rightful authority, it can lawfully limit the control and use of the animals killed to particular classes of persons or citizens, or to citizens of particular places or states. But, on the contrary, I hold that where animals within a state, whether living in its waters or in the air above, are, at the time, beyond the reach or control of man, so that they cannot be subjected to his use or that of the state in any respect, they are not the property of the state or of any one in a proper sense. I hold that, until they are brought into subjection or use by the labor or skill of man, they are not the property of any one, and that they only become the property of man according to the extent to which they are subjected by his labor or skill to his use and benefit. When man, by his labor or skill, brings any such animals under his control and subject to his use, he acquires to that extent a right of property in them, and the ownership of others in the animals is limited by the extent and right thus acquired. This is a generally recognized doctrine, acknowledged by all states of Christendom. It is the doctrine of law, both natural and positive. The Roman law, as stated in the Digest, cited in the opinion of the majority, expresses it as follows:

'That which belongs to nobody is acquired by the natural law by the person who first possesses it.' A bird may fly at such height as to be beyond the reach of man or his skill, and no one can then assert any right of property in such bird; it cannot, then, be said to belong to any one. But when, from any cause, the bird is brought within the reach and control or use of man, it becomes at that instant his property, and may be an article of commerce between him and citizens of the same or of other states. In an opinion written by me some years since, I had occasion to speak of this rule of law. I there said that it was a general principle of law, both natural and positive, that where a subject, animate or inanimate, which otherwise could not be brought under the control or use of man, is reduced to such control or use by his individual labor or skill, a right of property in it is acquired. The wild bird in the air belongs to no one, but when the fowler brings it to the earth and takes it into his possession, it is his property. He has reduced it to his control by his own labor, and the law of nature and the law of society recognize his exclusive right to it. The pearl at the bottom of the sea belongs to no one, but the diver who enters the water and brings it to light has property in the gem. He has by his own labor reduced it to possession, and, in all communities and by all law, his right to it is recognized. So the trapper on the plains and the hunter in the North have a property in the furs they have gathered, though the animals from which they were taken roamed at large, and belonged to no one. They have added by their labor to the uses of man an article promoting his comfort, which, without that labor, would have been lost to him. They have a right, therefore, to the furs, and every court in Christendom would maintain it. So, when the fisherman drags by his net fish from the sea, he has a property in them, of which no one is permitted to despoil him. Water Works v. Schottler, 110 U.S. 374, 4 Sup. Ct. 48." (Emphasis mine)

The Court in Ohio Oil Co. V. State of Indiana, 177 U.S. 190 (1900,) also classified oil, gas and water as "ferae naturae," the appropriation of which was subject to the same rationale as fish and game "propter privilegium":

..."In Brown v. Spilman, 155 U.S. 665, 669, 670 S., 39 L. ed. 304, 305, 15 Sup. Ct. Rep. 245, 247, these distinctive features of deposits of gas and oil were remarked upon. The court said:

'Petroleum gas and oil are substances of a peculiar character, and decisions in ordinary cases of mining for coal, and other minerals which have a fixed situs, cannot be applied to contracts concerning them without some qualifications. They belong to the owner of the land, and are a part of it, so long as they are on it or in it, or subject to his control, but when they escape and go into other land, or come under another's control, the title of the former owner is gone. If an adjoining owner drills his own land and taps a deposit of oil or gas, extending under his neighbor's field, so that it comes into his well, it becomes his property. Brown v. Vandergrift, 80 Pa. 142, 147; Westmoreland & C. Natural Gas Co. v. De Witt, 130 Pa. 235, 5 L. R. A. 731, 18 Atl. 724.

"In Westmoreland & C. Natural Gas Co. v. De Witt, 130 Pa. 235, 5 L. R. A. 731, 18 Atl. 724, the supreme court of Pennsylvania considered the character of ownership in natural gas and oil as these substances existed beneath the surface of the earth. The court said: 

'The learned master says gas is a mineral, and while in situ is part of the land, and therefore possession of the land is possession of the gas. But this deduction must be made with some qualifications. Gas, it is true, is a mineral; but it is a mineral with peculiar attributes, which require the application of precedents arising out of ordinary mineral rights, with much more careful consideration of the principles involved than of the mere decisions. Water, also, is a mineral, but the decisions in ordinary cases of mining rights, etc., have never been held as unqualified precedents in regard to flowing or even to percolating waters. Water and oil, and still more strongly gas, may be classed by themselves, if the analogy be not too fanciful, as minerals feroe naturoe. In common with animals, and unlike other minerals, they have the power and the tendency to escape without the volition of the owner. Their 'fugitive and wandering existence within the limits of a particular tract is uncertain,' as said by Chief Justice Agnew in Brown v. Vandergrift, 80 Pa. 147, 148, . . . They belong to the owner of the land, and are a part of it, so long as they are on or in it, and are subject to his control; but when they escape and go into other land, or come under another's control, the title of the former owner is gone. Possession of the land, therefore, is not necessarily possession of the gas.'

...."Again, in Jones v. Forest Oil Co., (January, 1900), 194 Pa. 379, 44 Atl. 1074, the same subject was once more considered. The complaint was filed by one land owner having a gas well on his land, to enjoin the owner of adjoining property from using in a gas well thereon a pump which was asserted to have such power that its operation would draw away the oil and gas from the well of the complainant to that of the defendant. Reviewing the cases to which we have just referred, and after quoting the language of Chief Justice Agnew, in Brown v. Vandergrift, 80 Pa. 142, 147, wherein, as we have seen, oil and gas were by analogy classed as 'minerals feroe naturoe,' the court decided:

'From these cases we conclude that the property of the owner of lands in oil and gas is not absolute until it is actually in his grasp and brought to the surface.'

 ..."In People's Gas Co. v. Tyner, 131 Ind. 277, 281, 16 L. R. A. 443, 31 N. E. 59, .... After quoting authorities relating to subterranean currents of water, and treating gas and oil before being reduced to possession as of a kindred nature, the court said:

'Like water it is not the subject of property except while in actual occupancy, and a grant of either water or oil is not a grant of the soil or of anything for which ejectment will lie.'

"The case of Brown v. Vandergrift, 80 Pa. 142, from which we have previously quoted, was then referred to, and the analogies between oil and gas and animals feroe naturoe were approved and adopted. In Townsend v. State, 147 Ind. 624, 37 L. R. A. 294, 49 N. E. 14,... it was decided that the owners of the surface of the land within the gas field, whilst they had the exclusive right on their land to sink wells for the purpose of extracting the oil and gas, had no right of property therein until by the actual drawing of the oil and gas to the surface of the earth they had reduced these substances to physical possession....

"Without pausing to weigh the reasoning of the opinions of the Indiana court in order to ascertain whether they in every respect harmonize, it is apparent that the cases in question, in accord with the rule of general law, settle the rule of property in the state of Indiana to be as follows: Although in virtue of his proprietorship the owner of the surface may bore wells for the purpose of extracting natural gas and oil until these substances are actually reduced by him to possession, he has no title whatever to them as owner. That is, he has the exclusive right on his own land to seek to acquire them, but they do not become his property until the effort has resulted in dominion and control by actual possession. It is also clear from the Indiana cases cited that, in the absence of regulation by law, every owner of the surface within a gas field may prosecute his efforts and may reduce to possession all or every part, if possible, of the deposits, without violating the rights of the other surface owners.

..."Thus, the owner of land has the exclusive right on his property to reduce the game there found to possession, just as the owner of the soil has the exclusive right to reduce to possession the deposits of natural gas and oil found beneath the surface of his land. The owner of the soil cannot follow game when it passes from his property; so, also, the owner may not follow the natural gas when it shifts from beneath his own to the property of someone else within the gas field. It being true as to both animals feroe naturoe and gas and oil, therefore, that whilst the right to appropriate and become the owner exists, proprietorship does not take being until the particular subjects of the right become property by being reduced to actual possession..." (Emphasis mine.)