Thursday, September 6, 2007

Canada's Answer to Pierson v. Post

Bruce Ziff (University of Alberta) sent along this very interesting post on the rule of capture in Newfoundland.  If you like the rule of capture (as I do), you'll want to check out the link to Bruce's article included in the post.

Pierson v. Post is well known not just to American property law teachers and students, but is a staple of Canadian law teaching as well. I have always felt that the case was overrated as a teaching tool, though it holds a continuing fascination for some. Indeed, there has been a recent flurry of scholarly activity about the litigation (such as A. McDowell, "Legal Fictions in Pierson v. Post", 105 Mich. L. Rev. 735 (2007) D. Dharmapala & R. Pitchford, "An Economic Analysis of 'Riding to Hounds': Pierson v. Post Revisited", 18 J.L. Econ. & Org. 39 (2002); B.R. Berger, "It's Not About the Fox: The Untold History of Pierson v. Post", 55 Duke L.J. 1089 (2006)).

To my mind, a cluster of little-known Newfoundland decisions concerning the seal hunt offer a better introduction to basic property doctrine. In the late-19th century, five cases were heard before the Newfoundland Supreme Court concerning the right to pans (piles) of seal pelts left on the ice floes during the annual hunt. In essence, each contest concerned the rights of the first taker against crews that happened upon the seemingly abandoned carcasses. Who should prevail? Two approaches are advanced in the cases, neither of which adopts the simple solution found in Pierson v. Post (nor that of the dissent in that case). For more, see Ziff, "The Law of Capture, Newfoundland-Style". Comments welcome.

The cases are listed below. The most useful one from a pedagogical point of view is Clift v. Kane. I have PDF versions for those interested. Contact:

Power v. Jackman (1859) 4 Nfld.L.R. 333 (S.C.)

Noel v. Warren (1861) 4 Nfld.L.R. 557 (S.C.)

Doyle v. Bartlett (1872) 5 Nfld.L.R. 445 (S.C., en banc)

Clift v. Kane (1870) 5 Nfld. L.R. 327 (S.C., en banc.)

Power v. Kennedy (1884) 7 Nfld.L.R. 34 (S.C.)

Ben Barros

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