in hot pursuit create close cases for the capture doctrine, these close cases do not undermine the labour-based approach to capture generally.

7.3 Multiple proprietary claims

Ordinarily, black-letter doctrine holds that possession rights should be assigned in all-or-nothing fashion. The custom relied on in Ghen and other whaling cases, however, entitled whale finders to reasonable finder’s fees. This custom makes sense in context. Because it is time and effort intensive to appropriate a whale into human commerce, it is justifiable to give two individuals rewards for doing so—the whaler, and the finder. The law of sunken ships and treasure provides another example. The legal system secures owners’ control and future use by returning stolen or lost articles to owners; this general principle applies to sunken goods when it is feasible to find the owner of a sunken wreck or treasure. In such cases, finders and recoverers deserve restitution but not possession or ownership. When true owners are unavailable, however, productive labour theory recommends that triers of fact follow a series of presumptions. The first presumption is to award boats or treasures to the parties who actually recover—i.e. capture—them. First finders override the claims of actual recoverers only if and when they mark off their claims and then proceed in good faith and with reasonable diligence to recover the boats.139 Yet both the first finder and the first recoverer contribute in different ways to the recovery of sunken goods. In the abstract, there is no way of saying whether the captain who finds a wreck or the one who salvages it successfully contributes more to the reintegration of the wreck into human commerce and use. In some circumstances, it may be reasonable to award the finder property and order restitution to the salvor; in others, the opposite assignments may be reasonable.

Here, productive labour theory justifies and encourages the same style of indirect-consequentialist reasoning as is used in the progression from actual capture to constructive capture. The law begins with a ‘rule’-level presumption in favour of single acquisition and ownership, like the presumption in favour of a bright-line actual capture requirement. As the preference for actual capture is rebuttable, however, the one-owner presumption is also rebuttable, when the asset is unlikely to be discovered without rewarding different contributions to the discovery and recovery of the asset.140

8. Accession Policy and Ratione Soli Doctrine

Again, however, acquisition doctrine operates as something of a backstop, in unowned areas like beaches, highways, and oceans. Quite often, the most effective way to enlarge citizens’ free exercise of their labour rights is to give them legal rights

139See Treasure Salvors, Inc. v Unidentified Wrecked & Abandoned Sailing Vessel 1981; Brady v Steamship African Queen 1960; Eads v Brazelton 1861.

140I thank Daphna Lewinsohn-Zamir for encouraging me to discuss this issue more fully.

that operate with little express reliance on the underlying moral rights. Chancellor Kent certainly appreciated as much. Although he justified civil property rights on natural rights grounds in his Commentaries, he acknowledged readily that acquisition had ‘become almost extinct’, and ‘made to yield to the stronger claims of order and tranquility’ associated with the alienation of property.141 What Kent said of alienation is also true of accession. In most cases, the ratione soli rule and other related accession doctrines secure labour-based property rights more effectively than capture rules do. Productive labour theory can explain, just as well as other theories of property, why accession ‘dominates first possession’ in practice.142

Consider Fisher v Steward, the beehive case discussed in the Introduction. Fisher and several associates had found the beehive while trespassing on Steward’s land, Steward had appropriated the hive, and the New Hampshire supreme court held that Steward’s appropriation and possession were lawful. Although the court rejected the claim by Fisher et al. that their ‘labor and skill’ entitled them to the hive,143 in so doing the court did not necessarily reject labour theory. It takes four separate practical judgments before it can be said that labour-based moral rights justify the positive-law holding in Fisher, and not all of these judgments are uncontroversial. Nevertheless, if a public official consulted simple and obvious observations about how people use land, trees, and bees, he might reasonably conclude that Fisher’s holding represents a reasonable way to secure in law property rights grounded in the moral right to labour. The first move is the move explained in Section 4: if Steward ‘owns’ his land, the best way to promote labour is to endow him as ‘owner’ not merely with a usufruct but rather with broad legal rights of exclusive control, use, and disposition over his land. Each of the next three judgments relates to a separate application of the accession policies discussed in Section 5.

Accession doctrines differ sharply in application, depending on how the proposed ‘principal’ and ‘accessory’ resources in question relate to one another. Legally, the most obvious difference is this: some accession-related doctrines apply as brightline rules (say, the riparian doctrine of accretion144), while others apply as general standards varying in application to the totality of particular circumstances (say, the doctrines regulating the merger (accessio) or substantial transformation (specificatio) of goods145). To reconcile these and many other accession-related doctrines, however, leading early Anglo-American legal authorities justified accession in the same general terms identified in Section 5. According to Blackstone, accession applies when a ‘given corporeal substance receive[s] afterwards an accession by natural or by artificial means, as by the growth of vegetables [or] the pregnancy of animals’, but not in cases in which ‘the thing itself . . . [is] changed into a different species’.146 Blackstone stresses the perception-related aspect of accession doctrine. Entity B deserves to be treated as a legal accessory to entity A if it seems an outgrowth of or extension from A’s ‘corporeal substance’, but not if it seems

‘a different species’. Kent explains accession in similar terms, but he also exempts cases in which B’s poem is written on A’s parchment, on the ground that the written manuscript belongs to the ‘author[, who] has a higher, and, consequently, the principal interest in’ it.147 For Kent, the owner of entity A deserves to own entity B as an accessory if his labour to create A creates a normative interest in B; in this situation, accession focuses on the previous and likely future uses of A and B. In a similar vein, one early accession case acknowledged that it is ‘very difficult to ascertain any principle of uniform and universal application, on which the [standard] is itself founded’, but then encouraged the law to identify the owner with ‘the principal interest’ in the asset or assets in question.148

To be sure, these legal tests are circular. One asks whether the proposed accessory is perceived so closely with the proposed principal asset that the former should be deemed an accessory to the latter; the other asks whether the former seems likely enough to be used beneficially as a package with the latter that it ought to be deemed a legal accessory to the latter. Notwithstanding this circularity, however, the tests provide enough guidance to focus legal inquiries into the issues needed to settle the Fisher case.

The first application runs from Steward’s land to the trees on his land. Although there may not be perfect or irrefutable empirical information, it seems safe to rely on armchair empirics to conclude that trees are accessories to land. In doctrine, trees are deemed accessories because they are classified as fixtures and fixtures are automatically accessories.149 To be sure, this per se classification could be challenged. In human perception, trees seem less intertwined with land than soil seems. At the same time, because trees are rooted in ground, the law does no violence to human perception if it classifies a tree as part of the same res or ‘entity’ as land. In addition, it seems practically certain that trees and lands are used more productively if treated as a combined entity. If Fisher and friends could have appropriated trees on Steward’s land, they would have deserved and received implied easements of access to tend and enjoy their trees. Such easements would require Steward and similarly situated landowners to monitor their boundaries. Such monitoring would make it more difficult for owners to enjoy their land to the fullest. In addition, a landowner may reasonably be expected to account for trees and how well they fit in with his plans for the long-range management of his land. No surprise, then, that, in the Fisher case, Fisher and the other plaintiffs did not even contest Steward’s ownership of the tree.150

So next, in a case like Fisher, the conscientious judge must determine whether Steward’s exclusive control over the land and tree entitle him to corresponding control over the beehive. Doctrinally, that question presents another possible extension of the fixture doctrine. The answers to the two questions accession policy

147 Kent 1826, 2: 296 (emphasis added). Here, Kent noted Roman law to the contrary, pronounced it ‘absurd’, and recommended that readers follow French principles in conformity with the principles explained in text.

148Lampton’s Executors v Preston’s Executors 1829, 459.

149See e.g. Brown 1975, ss. 16.1–2, pp. 514–22; Kent 1826, 2: 295.

150See Fisher v Steward 1804, 60.