THREE CASES / FOUR TALES: COMMONS, CAPTURE, THE PUBLIC TRUST, AND PROPERTY IN LAND

摘要

The founding of America was the rule of capture writ large—the discovery doctrine is just capture applied to continents rather than foxes. But capture produces potentially different results when applied to foxes rather than to continents: "property" in foxes is qualified and possessory because the property ceases if the fox escapes—and animals ferae naturae (unlike continents) are wont to escape. This article examines the legal universe occupied by animals ferae naturae by examining three cases from the early nineteenth century. The cases examine the rule of capture as applied to animals ferae naturae, the nature of property in such animals, and how that property restricts property in land.