Acquisition of Personal Property- the Rule of Capture

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 Ganter v. Kapiloff, 516 A.2D 611 (Md. 1986). On the contrary, in many states, it is a crime to keep lost property without making a reasonable attempt to locate the true owner and return the property. 

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:

1. 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.
2. 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.
3. 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 Ghen v. Rich, 8 F 159 (D. Mass. 1881).

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:

1. Fred captures and domesticates several wild deer. Once the deer are domesticated, Fred allows them to roam free and graze. Each night, after grazing, the deer naturally return to the corral that Fred has built for them. In this case, since the animals return to Fred after they graze, they are considered to be captured even when they roam free. Therefore, they cannot be taken by anybody else. However, if the captured wild animal is not domesticated, then the owner loses all rights to it if the animal escapes. 
2. Siegfried and Roy are looking to add another animal to their magic act. They hire Gunther, a professional lion catcher and tamer, to bring them a lion. Gunther travels to the jungle and captures a lion. However, on the way back, the lion escapes, and before Gunther can reclaim the lion, William catches it and keeps it for himself. In this case, neither Gunther nor Siegfried and Roy have ownership of the lion because it is a wild animal that has not been domesticated. Therefore, they lost their ownership rights once the lion escaped, and William can rightfully claim ownership of it. See E. A. Stephens & Co. v. Albers, 256 P.15 (Colo. 1927).