First Possession and Wild Animals
Classical First Possession: Locke and Wild Animals #
Locke’s argument for possession (by means of one’s labour) as the basis for establishing property rights in “unowned” things and land has had a lasting influence on common law property. More important still, the way in which Locke justified his principle of first possession laid much of the groundwork for the style of classical legal thought that would come to dominate in the nineteenth century.
One historical setting in which Locke’s principle of first possession became increasingly significant was Newfoundland’s seal fishery. By the nineteenth century, this industry had grown in economic importance and scale. Larger boats departing from southern areas of the island began to sail further afield in the sea ice during the hunting season. As in Clift v Kane, it was not uncommon for sealers to kill large numbers of seals on the open ice flows only to lose access to the pelts before they could haul them aboard, as their ships were cut off by changing ice patterns due to weather, ocean currents or other causes. Sometimes, another crew of sealers would come upon the pelts and recover them. In a subsequent contest between conflicting claims to the pelts, the courts were called upon to answer the question of which party had first come into legal possession. That question tested Locke’s seemingly straightforward application of his principle to someone who picks up an acorn off the ground and comes to possess it simply by virtue of time and effort spent.
In Clift v Kane, we encounter our first case study examining how judicial decisions about common law property rules created the foundations for Canada’s liberal market economy. In the context of Newfoundland’s nineteenth-century sealing economy, these rules established the terms of competition between sealers and determined the preconditions for bringing their “products” to market. While both judges in the case emphasize the importance of a freely competitive marketplace for Newfoundland’s seal fishery, it seems quite clear that we cannot simply take that marketplace as a given. In fact, its fundamental rules are in the process of being determined by the very case before the court.
As you read Clift v Kane, start by trying to identify and describe the two different rules of first possession being advanced by Chief Justice Hoyles (writing for the majority) and Justice Robinson (in dissent).
Possession in Wild Animals and Darwin, the IKEA Monkey #
You might remember Darwin, also known as the IKEA monkey, who went viral in 2012 for roaming around IKEA in a stylish coat. What you might not know is that Darwin was also the centre of a legal dispute—a legal dispute which involved some of the same principles of possession present in Clift v Kane.
The background to the legal dispute began when Yasmin Nakhuda purchased Darwin illegally from an exotic pet dealer. Nakhuda had been keeping the monkey as a pet for a few months when she brought him to IKEA, leaving him in a locked cage in her car while she shopped. However, Darwin escaped and wandered into the store, where he was captured by Toronto Animal Services and eventually brought to a primate sanctuary. Nakhuda sued the sanctuary to try and get Darwin back.
One key issue in the legal case was whether or not Nakhuda lost ownership of Darwin when he escaped. To determine the answer, the court relied on a 1917 case called Campbell v Hedley. In that case, a fox had escaped from a fox breeder and was shot by the defendant. The court held that domestic animals “are the subject of absolute property, and the owner retains his right of property if they stray away." 1 However, in the case of wild animals—like the fox—an owner only has qualified possession unless the animal is under their complete physical control, for example if the animal is dead. In this case, the fox breeder lost his qualified possession when the fox escaped and became the defendant’s absolute possession after it was killed.
The court in Nakhuda’s case came to a similar conclusion, finding that the sanctuary was the owner of the monkey: “when the monkey ran away and Ms. Nakhuda lost possession of him, she lost ownership of him. Accordingly, she has no right to have him returned to her.” 2
First Possession Revisited #
Popov v Hayashi, below, received considerable media and popular attention when the events giving rise to the case unfolded in October 2001. In part, this was because the facts seemed so unusual, even extraordinary. The basic legal problem at the heart of the case, however, was nothing new. To get a sense of that problem and the actual circumstances surrounding the legal issue, watch the following recorded video of the events on October 7 at PacBell Park in San Francisco.
Watch Barry Bonds’ 73rd Home Run #
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The starting point for characterizing the central legal issue in Popov is to recognize that, at the moment when the record-setting baseball made contact with Barry Bonds’ bat we can assume—as the parties in the case agreed to do—that it was effectively abandoned property. This placed the baseball into the legal category of “unowned things”—not too dissimilar from the seals discussed in Clift v Kane. Being abandoned, the baseball was—as it sailed in the air toward the stands full of eager fans—unburdened from any prior proprietary entitlements and therefore free to be claimed by the first possessor.
Next, read Justice McCarthy’s decision in Popov v Hayashi below. Pay close attention to both the result in the case and the judge’s justifications for reaching that result. Does Justice McCarthy’s decision typify the classical style, the modern style, some combination of these, or something else altogether?