Acquisition of Personal Property- the Rule of Capture
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Terms:Personal Property: Property that is movable; i.e., not real estate. Lost Property: Trespass to Chattels: Conversion: |
The most basic and fundamental rule for determining ownership of property is that the first person who captures or takes hold of the property owns it. This is called the "first in time" rule or the rule of capture.
The rule of capture dictates that the first person who captures a resource is entitled to it. This rule has been applied to many different kinds of resources, and it has been applied to both real and personal property.
Lost Property
The capture rule applies only to property that does not have a true owner at the time that it is found. Despite the existence of the popular “finders keepers” maxim, the capture rule does not give the finder of lost property a right to keep the lost property. See
However, a finder does have rights to the found property that are superior to those of any other person except for the rightful owner. For example:
- Batman loses his cowl while sliding down a fireman’s pole at a local park. He cannot locate his cowl, so he covers his face and goes home. Joker, while walking in the park later on, finds the cowl. Joker must return the cowl to Batman.
- Batman loses his cowl while sliding down a fireman’s pole at a local park. He cannot locate his cowl, so he covers his face and goes home. Joker, while walking in the park, finds the cowl. Later, Penguin steals the cowl from Joker. Joker can sue Penguin for trespass to chattel or conversion because Joker, as a finder, had superior rights to the cowl than did Penguin, even though Joker’s right to the cowl is inferior to Batman’s.
- Batman loses his cowl while sliding down a fireman’s pole at a local park. He cannot locate his cowl, so he covers his face and goes home. Joker, while walking in the park, finds the cowl. Later, Joker loses the cowl and Penguin finds it. Penguin must return the cowl to Joker if Joker claims it. Of course, if Batman claims it, Penguin would have to return the cowl to Batman, because Batman’s right to the cowl is superior to both the rights of Joker and of Penguin.
Animals
The general rule involving wild animals is that the first person to capture the animal owns it. However, actual capture, as opposed to mere sight or intent to capture, is required. For example:
Fred loves to barbecue fresh deer meat and he often goes hunting in the Fall season. Fred is on such a hunting trip, and he has been tracking one particular deer for the last few hours. Immediately before Fred shoots the deer, Barney, another hunter, catches the deer first. In this case, Barney rightfully owns the deer even though Fred has been chasing it. Giving chase is not enough to secure ownership. In order to acquire ownership of a wild animal, actual capture is required. See Pierson v. Post, 3 Cai.R. 175 (N.Y. 1805) .
Although, if an animal is mortally wounded but not yet dead or trapped so that capture is assured, the animal is considered to be captured. See
An interesting question arises when captured animals escape. The general rule is that if the animal has been domesticated so that it routinely returns to its owner, the animal is considered to be captured, even after it leaves the presence of its owner. For example: