Comments on Epstein “Possession as Root of Title”

Comments on Epstein “Possession as Root of Title” Nick Parker Econ 594ER October 29, 2007

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

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 state’s role is secondary.

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’

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? • Epstein’s 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

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?

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 isn’t there any discussion of dissipation and racing for possession? Hasn’t custom been recognized as a legal rule?

Comments on Epstein “Possession as Root of Title”