Ratione Soli

From opensourceproperty.org

Lord Holt, who decided Keeble, is also a key—if perhaps slightly confusing—expositor of the related and peculiarly English doctrine of ratione soli (Latin for “by reason of the soil”), also referred to in Pierson. Ratione soli is the principle that the right to take possession of wild animals belongs to the owner of the land where the animal may be found; thus title to any animals captured or killed on owned land automatically vests in the landowner. The English rule is in stark opposition to the civil (i.e., Roman) law rule, reflected in the Institutes of Justinian, which is that the captor of a wild animal acquires property rights in the animal wherever captured, though he may be liable in trespass to the owner of the real property on which the animal was pursued or taken. This distinction affects not only the right to possession of the animal itself, but also the measure of damages, because the damages from the trespass may be less than the value of the animal.

A strong principle of ratione soli was consolidated in mid-19th century England as part of the class wars between the landed gentry—who passionately defended game hunting as an exclusive sport for the aristocracy—and the upwardly-mobile merchant classes and more desperate farmers and poachers—who saw game as a token of luxury and a means of sustenance, respectively. See generally Chester Kirby, The English Game Law System, 38 AM. HIST. REV. 240 (1933). The aristocrats won a decisive victory in a suit by a game merchant against certain servants of the Marquis of Exeter, who had forcibly seized several dozen rabbits purchased by the merchant for resale, on grounds that they had been poached from the Marquis’s lands. Blades v. Higgs, (1865) 11 Eng. Rep. 1474, 11 H.L.Cas. 621. The Law Lords ruled that wild animals are the property of the owner of the land on which they are taken, and that the Marquis’s servants were therefore within their rights in repossessing the rabbits.

Ratione soli was initially rejected by the newly independent American states, in favor of a rule of “free taking.” This made some sense in the America of John Locke’s imagination: a vast, naturally bountiful, largely undeveloped, and sparsely populated continent. Moreover, “[i]n the New World, game was no sporting matter, but rather a source of food and clothing.” Thomas A. Lund, Early American Wildlife Law, 51 N.Y.U. L. REV. 703 (1976). Thus, for the first century of the new Republic’s life, landowners for the most part enjoyed no special privileges to wild animals on their otherwise idle land; hunters were presumed to be free to enter or cross unenclosed and undeveloped land in pursuit of game, even where that land was privately owned. Landowners could defeat this presumption by posting notices of their intent to exclude hunters at the boundaries of their property, but in practice posting was uncommon and generally ineffective for large holdings in the wilds of the frontier. Id. at 712-14.

Over time, even the vast North American continent saw its natural resources threatened with depletion by overexploitation, and its lands subject to increased development that conflicted with the free taking regime. Nevertheless, while a small number of American cases adopted ratione soli (see, e.g., Rexroth v. Coon, 23 A. 37 (R.I. 1885) (bees); Schulte v. Warren, 75 N.E. 783 (Ill. 1905) (fish)), the rule never took hold here as it did in England. Today, wild animals are subject to a variety of state and federal regulations that fairly comprehensively govern whether, when, and under what circumstances they may be hunted or captured, on the theory that wildlife is a common resource to be managed by the government for the benefit of the people. See generally Michael C. Blumm & Lucus Ritchie, The Pioneer Spirit and the Public Trust: The American Rule of Capture and State Ownership of Wildlife, 35 ENVIRON. L. 673 (2005). But a majority of states still allow licensed hunters to take or pursue game on unenclosed private land unless the landowner has posted against hunting or trespassing. Mark R. Sigman, Note, Hunting and Posting on Private Land in America, 54 DUKE L. J. 549, 558-68 (2004).

One possible virtue of the doctrine of ratione soli is the same as the virtue of the punitive damages award in Jacque v. Steenberg Homes: it may marginally discourage trespasses on land by those who would trespass for the purpose of capturing wild animals. But at what cost? And do we really need ratione soli when, as Jacque makes clear, punitive damages are already available against trespassers? Or when, as Keeble makes clear, there are other legal remedies available against those who interfere with landowners’ efforts to exploit wild animals on their land? Is there any other principled justification for either ratione soli or free taking, or are the rules merely sops to particular political interests? In light of all this history, what do you think ought to be the legal rights of landowners with respect to wild animals that happen to be on their land? Why? Is there any reason landowners should have a superior claim to anyone else?