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Now it may well be that North American Indian tribes were not so indifferent to marking out landed property as eighteenth-century European commentators supposed. Or it may be that at least some tribes found landed property less important to their security than other forms of property and thus felt no need to assert claims to property in land. But, however anachronistic the Johnson parties’ (ultimately mooted) argument may now seem, it is a particularly striking example of the relativity of the ‘text’ of possession to the interpretative community for that text. It is doubtful whether the claims of any nomadic population could ever meet the common law requirements for establishing property in land. Thus, the audience presupposed by the common law of first possession is an agrarian or a commercial people – a people whose activities with respect to the objects around them require an unequivocal delineation of lasting control so that those objects can be managed and traded.
But perhaps the deepest aspect of the common law text of possession lies in the attitude that this text strikes with respect to the relationship between human beings and nature. At least some Indians professed bewilderment at the concept of owning the land. Indeed, they prided themselves on not marking the land but rather on moving lightly through it, living with the land and with its creatures as members of the same family rather than as strangers who visited only to conquer the objects of nature. The doctrine of first possession, quite to the contrary, reflects the attitude that human beings are outsiders to nature. It gives the earth and its creatures over to those who mark them so clearly as to transform them, so that no one else will mistake them for unsubdued nature.
We may admire nature and enjoy wildness, but those sentiments find little resonance in the doctrine of first possession. Its texts are those of cultivation, manufacture, and development. We cannot have our fish both loose and fast, as Melville might have said [Herman Melville, Moby-Dick, Chapter 89] and the common law of first possession makes a choice. The common law gives preference to those who convince the world that they have caught the fish and hold it fast. This may be a reward to useful labor, but it is more precisely the articulation of a specific vocabulary within a structure of symbols approved and understood by a commercial people. It is this commonly understood and shared set of symbols that gives significance and form to what might seem the quintessentially individualistic act: the claim that one has, by ‘possession’, separated for oneself property from the great commons of unopened things.
Notes and Questions 4.1
1How does the first occupancy rule differ from Locke’s theory of original acquisition? See Waldron, The Right to Private Property, pp. 173–4.
2Epstein later argues that for intangible assets first possession can operate through a ‘filing office system’ (i.e. property rights assigned to the first to register a claim) and that the same can be done for things like mining claims, where there are difficulties in deciding what in fact constitutes an assumption of possession (compare the similar problem noted by Nozick in Extract 3.6, in
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deciding how much Locke’s labour-desert theory would award to a private astronaut who clears a place on Mars). However, in response to this, Zerbe relates what actually happened to mining claims in the California gold rush. He referred to a classic study by Umbeck, ‘A Theory of Contract Choice and the California Gold Rush’, which revealed that mining rights were not assigned wholly according to who first filed claims, because original claims were too large to be enforced: ‘What governed the size of claim was a sort of group meeting in which a majority of people were wearing guns, and the majority decided [how the rights should be allocated].’ According to Umbeck, the size of claims allocated was the size that an individual person could efficiently control, but Zerbe treats this with some scepticism: ‘it is unclear that the efficient size from the individual’s point of view would also be the efficient size from the group’s point of view’ (Zerbe, ‘Time, Property Rights, and the Common Law’,
pp.804–5).
4.3.New things
New things can come into existence in a variety of ways. For example, they may come into being through an irreversible mixture of pre-existing things, or as the product of the labour of one or more people (a question we look at in more detail in Chapter 9). The situation we concentrate on here is where the new thing can be regarded as the income or product of a pre-existing thing. Pre-existing things can produce income or natural products in essentially two different ways. In the case of some types of thing, it is inherent in their nature that they will or may produce income or natural products: apple trees produce apples, cultivated fields produce crops, dividends are paid on shares, lottery tickets sometimes produce prizes. But an owner of a thing can also make a thing produce an income by forgoing beneficial use of it and instead granting the right to beneficial use of the thing to someone else for a period of time in exchange for a rent. So, for example, you might agree to lend your money to the bank if the bank pays interest on the loan until it is repaid, or you might agree to grant a lease of your house to students for a year if they pay you £500 a month rent. Whichever way the income or natural product arises, the basic rule is the obvious one: ownership of the income or product automatically accrues to the owner of the thing that produced it, the principal. In most cases, this seems too obvious to mention: of course you own the prize if your lottery ticket bears the winning number, just as you own the apples from your apple tree and the rent accruing if your house is let. Indeed, as we saw in Chapter 1, the right to the income and the natural product of a thing are usually both regarded as standard incidents of ownership of the thing itself.
Again, however, more complex situations may require more elaborate rules. Consider the case of animal progeny. Animals are the natural product of two parents, not of one. Felix Cohen points out in Dialogue on Private Property,
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extracted below, that a legal system considering how to allocate ownership of animal offspring can choose between three possible rules: it can allocate ownership of the offspring to the owner of the mother, or it can allocate it to the owner of the father, or it can adopt a rule that, when an animal is born, it automatically falls within the same category as wild animals, i.e. it is unowned until captured. What factors would lead a system to adopt one rule rather than another?
To appreciate what he says, it is useful to return to the rationale for the obvious simple rule: why in the usual case does the owner of the principal automatically also own its income or product? The answer depends to some extent on the nature of the principal. There are some things whose value resides solely in the income or product they will or may produce. The lottery ticket is the obvious example, but the same would be true of the apple tree if owned by a commercial fruit grower. In both cases, there is no point in owning the principal unless you are also guaranteed ownership of its product. In the case of other things, the principal thing can only be made to yield income or natural products, or to produce a higher quality or higher value yield, by the expenditure of skill and labour and/or the addition of improving agents. So, for example, land can be made to yield crops by cultivation and by the investment of fertilisers and fencing. Ownership of the crop provides the incentive for the owner of the land to incur these expenditures, and since all the profit of increased production accrues to the landowner, he has the incentive to increase the productivity of the land whenever increased productivity is cost-effective in terms of the increased investment required to produce it. Further, a blanket rule that ownership of income and natural products automatically accrues to the owner of the principal (however the income or natural products accrue) will leave the owner of the principal free to put the principal to its most productive use – for example to stop growing crops on his land and instead hire it out for pop festivals. There are other reasons for adopting the simple basic rule. Allowing owners to swap beneficial use for rent ensures that beneficial use is put in the hands of those who value it most for the time being.
Cohen’s third solution – allocating the ownership of income and natural products to no one – presents problems, both where the product has a negative value and where it has a positive value. To take the first, we need owners to take responsibility for the products yielded by the things they own if those products are harmful in themselves, or capable of causing harm or nuisance to others. This applies to leaves falling from trees as much as to polluting chemicals produced by a manufacturing process. The rule that ownership of the income or product automatically accrues to the owner of the principal provides a basis for the environmental law principle that the polluter pays. On the other hand, where the income or natural product has a positive value, the problem arises because of the first occupancy rule. If income and natural products are ownerless (for example, apples are owned by those who pick them, regardless of who owns the tree), the owner of the principal will have to incur costs excluding others to ensure that he is the first taker, and those who want to engage in trading in the product will have to incur
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costs in ensuring that they are the first taker. An apple wholesaler would not, therefore, own an orchard but would employ a gang of pickers to lie in wait outside apple trees waiting for them to ripen and meanwhile repelling rival pickers. Allocating ownership of the apples to the owner of the tree therefore eliminates these costs and makes apples cheaper. This is not to say that it is never the answer to allocate ownership of natural products to the first taker. There are some natural products that are of value to some people but not to others, and in these cases it may make sense to allot ownership to the first taker. Most societies making extensive use of horses have evolved such a rule about horse dung: the owner of the horse is in the best position to collect it to use as manure, but, if he does not want to do so, the first person to take it may keep it, and indeed anyone who wants horse manure may choose to follow the horse to ensure that he gets there first (see Haslem v. Lockwood (1871) 37 Conn 500, discussed by Lueck in ‘First Possession as the Basis of Property’).
Felix Cohen draws on a number of these factors to explain why most legal systems have chosen the rule that ownership of animal offspring accrues to the owner of the mother. However, even in the case of animal progeny, there may be differences in circumstances which justify a different rule. So, for example, as Lord Denning points out in Tucker v. Farm and General Investment Trust Ltd (extracted at www.cambridge.org/propertylaw/), this rule is replaced by a co-ownership rule in the case of swans, and even in the case of other animals, the right rule for allocating ownership as between the owner of the mother and the owner of the father will not necessarily be the right rule for allocating ownership as between the owner of the mother and the person in possession of the mother. In Tucker, the owner of ewes (a hire purchase company) had leased them to a farmer under a hire purchase agreement. Consistently with the reasoning of Felix Cohen, the Court of Appeal held that lambs born to the ewes during the hire period belonged to the farmer, not to the hire purchase company.
Extract 4.5 Felix S. Cohen, ‘Dialogue on Private Property’ (1954) 9 Rutgers Law Journal 357 at 359
T H E C A S E O F T H E M O N T AN A M U L E
C:Mr F, there’s a big cottonwood tree at the southeast corner of Wright Hagerty’s ranch, about 30 miles north of Browning, Montana, and under that tree this morning a mule was born. Who owns the mule?
F:I don’t know.
C:Do you own the mule?
F:No.
C:How do you know you don’t own the mule? You just said you didn’t know who
owns the mule. Might it not be you?
F:Well, I suppose that it is possible that I might own a mule I never saw, but I don’t think I do.
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C:You don’t plan to declare this mule on your personal property tax returns?
F:No.
C:Why not, if you really don’t know whether you own it? Or do you know?
F:Well, I never had any relation to any mules in Montana.
C:Suppose you did have a relation to this mule. Suppose it turns out that the mule’s father was your jackass. Would that make you the owner of the mule?
F:I don’t think it would.
C:Suppose you owned the land on which the mule was born. Would that make you the owner of the mule?
F:No.
C:Suppose you owned a piece of unfenced prairie in Montana and the mule’s mother during her pregnancy ate some of your grass. Would that make you the
owner of the mule?
F:No, I don’t think it would.
C:Well, then you seem to know more about the ownership of this Montana mule
than you admitted a few moments ago. Now tell us who really owns the mule.
F:I suppose the owner of the mare owns the mule.
C:Exactly. But tell us how you come to that conclusion.
F:Well, I think that is the law of Montana.
C:Yes, and of all other states and countries, as far as I know. For example, the Laws of Manu, which are supposed to be the oldest legal code in the world, declare:
50.Should a bull beget a hundred calves on cows not owned by his master, those calves belong solely to the proprietors of the cows; and the strength of the bull was
wasted.
(Institutes of Hindu Law or the Ordinances of Manu
[translated and edited by S. G. Grady, Chapter 10])
Now how does it happen, do you suppose, that the law of Montana in the twentieth century AD corresponds to the law of India of 4,000 years or so ago? Is this an example of what Aristotle calls ‘natural justice’, which is everywhere the same, as distinguished from conventional justice which varies from place to place and from time to time?
F:Well, it does seem to be in accordance with the laws of nature that the progeny of the mother belong to the owner of the mother.
C:Wouldn’t it be just as much in accordance with the laws of nature to say that the progeny of the father belong to the owner of the father?
F:I suppose that might be so, as a matter of simple biology, but as a practical matter it might be pretty hard to determine just which jackass was the mule’s father.
C:Then, as a practical matter we are dealing with something more than biology. We are dealing with the human need for certainty in property distribution. If you plant seed in your neighbor’s field the biological connection between your seed and the resulting plants is perfectly natural, but under the laws of Montana and all other states the crop belongs to the landowner. And the Laws of Manu say the same thing:
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49.They, who have no property in the field, but having grain in their possession, sow it in soil owned by another, can receive no advantage whatever from the corn, which may be produced.
(Institutes of Hindu Law or the Ordinances of Manu
[translated and edited by S. G. Grady, Chapter 10])
Would you say here that, as a matter of certainty it is generally easier to say who owns a field than to say who owned the seeds that were planted in it?
F:Yes, as a general rule I think that would be the case.
C:Then whether we call our rule of property in livestock an example of natural law or not, its naturalness has some relation to the social need for certainty, which seems to exist in 48 different states and 48 different centuries. Do you think that property law reflects some such human demand for certainty?
F:I think it does in the cases we have been discussing.
C:Couldn’t we have some other equally certain and definite rule, say that the mule belongs to the owner of the land where it was born.
F:It might be a hard thing to do to locate the mule’s birth-place, but the young mule will show us its own mother when it’s hungry.
C:Suppose we decided that the mule should belong to the first roper. Wouldn’t that be a simple and definite rule?
F:Yes, but it wouldn’t be fair to the owner of the mare who was responsible for its care during pregnancy if a perfect stranger could come along and pick up the offspring.
C:Now, you are assuming that something more than certainty is involved in rules of property law, and that somehow such rules have something to do with ideas of fairness, and you could make out a good case for that proposition in this case. But suppose you are trying to explain this to a cowboy who has just roped this mule and doesn’t see the fairness of this rule that makes it the property of the mare’s owner. Are there any more objective standards that you could point to in support of this rule? What would be the economic consequences of a rule that made the mule the property of the first roper instead of the mare’s owner?
F:I think that livestock owners wouldn’t be so likely to breed their mares or cows if anybody else could come along and take title to the offspring.
C:You think then that the rule that the owner of the mare owns the mule contributes to economic productivity?
F:Yes.
C:But tell me, is there any reason to suppose that the owner of the mare will be able to raise the mule more economically than, say, the first roper or the owner of the ground on which the mule was born?
F:Well, so long as the mule depends upon its mother’s milk, it will be less expensive to raise it if the owner of the mother owns the offspring. And presumably the owner of the mother has physical control over his animals, and no extra effort is involved in his controlling the offspring as long as they are dependent upon their mother.
C:So, in effect, the rule we are talking about takes advantage of the natural dependency of the offspring on the mother animal. By enlisting the force of habit or