Comments on Epstein Possession as Root of Title

1
Comments on Epstein Possession as Root of Title

• Nick Parker
• Econ 594ER
• October 29, 2007

2
Introduction

• Should the law recognize first-possession as a
  full, transferable property right?
• Article explores strengths and weaknesses of
  first-possession rules
• Gives them a qualified endorsement
• plausible alternatives have more shortcomings

3
The Institutional Framework

• Three practical points about 1st-possession
• The rule that possession is the root of title is
  easy for courts to understand and apply this is
  a good starting point
• Without committing to this starting point,
  broader cases about the transfer of deeds, etc.,
  could not be effectively adjudicated
• Because a conflict does not arise in courts until
  claims assert themselves, they are usually
  between private parties and the states role is
  secondary.

4
Defining First Possession

• Pierson v. Post (1805)
• Facts Post was in hot pursuit of a tiring fox
  that Pierson easily captured
• Questions
• Did hot pursuit establish a legitimate claim?
• Would wounding the fox establish a claim?
• Court said no to hot pursuit but yes to
  wounding!
• Big question of why is 1st possession sufficient
  for ownership was ignored to focus on the
  little question of what constitutes a first
  possession

5
Labor Theory of Entitlement

• Locke (1690) each man has a natural right to a
  natural resource that he applies labor to
• Q Is this an efficient and\or equitable rule?
  How does it apply when A and B both purse the fox
  but only B is successful? Who should have
  possession when acquisition is based on luck?
• Epsteins critique
• It is ironic that the premise of labor theory
  that a man owns the fruits of his labor not be
  applied to a thing that is possessed and
  unclaimed by others.
• OK, but who should be liable for making sure an
  asserted claim is common knowledge? Why not
  address this question? And this highlights the
  importance again of the little question
  addressed in Post v. Pierson

6
A Contractual Escape?

• Should the custom of maritime law take precedent
  over property law (of Post v. Pierson) in the
  whaling case of Swift v. Gifford (1872)?
• Epstein says yes, but there are limits to social
  contracts of this sort.
• In water law
• Surface ownership rests with adjacent land
  ownership rule of first possession
• Groundwater is governed by rule of capture
  presumably because veins are hidden and know
  would knows under whose property the water was
• Is the point that, with groundwater, customs
  fail because there are not good enough implicit
  rules defining ownership?

7
Defense of 1st-Possession

• The real question is should rights be allocated
  via 1st-possession or should systems create
  original common ownership via the state?
• Are these the only options? What about mightiest
  takes claim? Others?
• Epstein is wary of state delineation of rights
• Could lead to continuous state ownership
• Could lead to politically driven distribution of
  rights
• First-possession has enjoyed the in all past
  times the status of legal rule and the burden of
  persuasion lies upon those who wish to displace
  it
• Q Why isnt there any discussion of dissipation
  and racing for possession? Hasnt custom been
  recognized as a legal rule?