Chapter 3: Possession and Title at Common Law?
How does one possess different types of things?
What are the legally salient characteristics of that thing, and the claimant?
What actions or behaviour demonstrate possession?
When does possession become owner?
What does “possession is 9/10’s of the law” mean?
Who is the true owner?
What does a true owner do? [Merrill: controls and excludes]
When is a true owner dispossessed?
What happens when there is no owner?
Who does a possessor have a better rights against?
How does Cml rationalize multiple claims in a thing?
How do these actions relate to justification, the absolute nature of property rights, and the right to exclude?
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Adverse possession only applies to land and not things.
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Buildings are fixtures, and are ordinarily considered land.
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Law of possession and law of finders is the only thing that applies to things.
Possessor is not a legal term, in that the court cannot conclude someone is a possessor.
Possession is a fact, not a legal term.
Casner & Leach, Cases and Text on Property (1984) p.135 – PURPOSE OF READING CML PROPERTY CASES
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Reading cases is designed to understand how the law is ‘put together’
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Cases are not designed to teach some abstract position of law, but with determining the principles governing an activity
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The examination of jurisprudence (the method by which law is derived) is the grist of our intellectual mill.
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Pierson v. Post, 1805, p.136 (NY SC) – POSSESSION – Rights in abandoned things; killing/wounding = possession; pursuit does not equal possession
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Facts: Post was pursuing a fox. Pierson intervened, killed the fox, and retained possession of it.
Issue: Whether Post, by the pursuit of the fox, acquired such a right to, or property in, the fox, and if such right is sufficient to sustain an action against Pierson for killing and taking him away. Has Post established by his chase the right to or property in the wild fox? [NO]
Rule: To get possession of a wild animal, you must manifest an unequivocal intention of appropriating the animal and deprive him of its natural liberty. Killing is incidental of possession. Mere pursuit is insufficient.
Ratio: Maj (J. Tompkins): Pierson owns the fox because he killed it; Post’s right is not stronger.
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Summarizes historical legal writing of Justinian, Fleta, Puffendorf, and Bynkershock to conclude that Post has no legal right to the fox, but the fox became the property of Pierson who intercepted and killed the fox.
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Pursuit alone vests no property right in the huntsman. Mere pursuit gave Post no legal right to the fox; it became the property of Pierson who intercepted and killed it.
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To get possession of a wild fox, you must exercise certain control over the fox, constituted in this case by mortal wounding or trapping of the fox. (cf. Locke – you must mix some kind of labour with the fox, you can’t get rights just by seeing/chasing)
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No requirement for you to actually be “holding” the fox but there needs to be that suggestion.
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To find that the mere pursuer has legal rights would be fertile source of quarrels and litigation.
Dissent (J. Livingstone): If sportsmen were left to decide, without citing ancient legal texts, they would find legal rights for the pursuer.
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Since Post worked at pursuing the fox, it is not fair that Pierson should be allowed to intervene at the end and gain title to the fox.
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Post has title: “Property in animals ferae naturae may be acquired without bodily touch or manucaption, provided the pursuer be within reach, or have a reasonable prospect of taking what he has thus discovered an intention of converting to his own use.”
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Cites custom to buttress his arguments against majority’s use of legal scholars.
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He supports a “might makes right” kind of Test: large number of big dogs have rights to fox; or killing fox with big sword gives legal rights over shitty mutts chasing fox.
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More pragmatic view, utilitarian view, blended in with a rights-based approach: wants to encourage fox-hunting because it is useful to society (has a public utility) and so he should be allowed to enjoy the benefits of this activity.
Ratio: granted legal rights to Pierson as killer eliminates any right to injury or damages by Post.
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Clift v. Kane., Year, p.140 Nfld– Possession – rights in abandoned property; killing AND seizing =possession
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Facts: 1000 seals killed and dressed by one crew, drift on ice flows to another crew who take possession.
Issue: Who has the legal possession/interest in the dead seals?
Ratio: (from the court, Robinson, J. dissenting):
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The labour of dressing the seals gave that crew the absolute property in the seals which could not be diverted without their consent.
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Killing and seizing is all that is required for the absolute acquisition of property interests in common animals.
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Killing without seizing is not enough to establish property for it has no utility
Rule: It is not necessary to secure and continue possession to maintain property interests. Same as Pierson – they have reasonable control.
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The Tabantia, 1924, UK, p. 141 – Elements of Possession – how to possess something that is hard to possess.
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Facts: A ship sunk in the North Sea. It was thought to have treasure in its hull. The plaintiffs (first salvage company, moderately equipped to perform to the salvage) were undertaking a salvage operation and had performed some limited work due to inclement weather. They did however, mark out the area, moored crafts, set up devices for divers to work, etc. when the defendants (second salvage company, better equipped) came along, interfered with the devices of the 1st ship and started their own salvage operation. Plaintiffs assert possessory rights over the wreck and complain of trespass and wrongful interference by defendants.
Issue: Do the plaintiffs have a valid legal possession of the Tubantia? [YES] (how do you possess something that is so unpossessable? [4 requirements]
Rule: Since the plaintiffs did everything a reasonable person could do and it was obvious they had the intention of working on the ship as a whole, they have a valid possessory claim over it. Also, the defendants intentionally hampered with P’s moorings and work.
Maj (Sir Henry Duke):
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Does the Plaintiff exhibited the elements of possession (what a reasonable and prudent owner would do):
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Physical control of the wreck (use and occupation) [YES];
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Occupation sufficient for exclusion (power to exclude)[YES] (Merrill);
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Animus possidendi (where the person in custody of the property knows and intends that he is holding the property for his own benefit) [YES]
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Treated the wreck as owners would [YES]
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Finding the wreck incapable of possession would be unfortunate and discourage salvage efforts of great public importance.
Ratio: Elements of possession found to exist in favour of plaintiff.
Comments: other party at dive site demonstrates Bad faith.
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Gimmelmann, Virtual Worlds as Comparative Law. (2004) p.144 – context and disparity of property rules
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Property is among the first features incorporated into a computer game
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Virtual Property is enormously successful: people like playing with fake property, and virtual property has been recognized by a Chinese court as property.
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Virtual Property satisfies many of the incidents of real world property and satisfies the normative demands of many major theories justifying property.
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Virtual property rights are absolute – interface will not have a command to use or steal
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Possession-is-all rule means that having possession is all that is required to own virtual property. (ie Dropping is abandonment)
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It is difficult to reduce concept of possession to a computer code (i.e. coding interaction to reliably lead to a conclusion).
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In a code world, there is no judicial discretion – it is all be hard rules instead of nuances and ambiguities.
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In software, there is a god, the programmer, who decides what exactly are the rules of the game.
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This is in sharp contrast with the real world where there are complex and often times indeterminate rules.
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In computer games, the group who does the most work to kill the monster will get the monster.
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He contrasts a social code against a computer code to show that it’s difficult to come up with hard & fast rules about property.
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Popov v. Hayashi, 2002, p. 149 – POSSESSION – Balancing of competing rights
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Facts: Both P and D attended a baseball game where Barry Bonds hit his record breaking home run. Popov reached up and his glove made contact with the ball, stopping its trajectory. A melee ensued in which Popov was thrown to the ground and lost control, or the chance at gaining, control of the ball. D, in the melee, picked up the ball and put it in his pocket, only taking it out when cameras were recording.
Issue: Whose has the possessory interest in the ball? [Shared equally]
Maj (J. McCarthy):
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Popov intended to establish and maintain possession of the ball (animus possidendi), but Hayashi picked it up.
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Custom is specific in baseball – often, the player “owns” the ball and gets it back (in exchange for signing another ball, usually). Note, though, that there had been a precedent set by a player in the 30’s who gave the actual ball to the fan in the stand.
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We don’t want to encourage violence (might = right), i.e. people attacking each other so they can claim possession. (Note distinction from Post – in that case, Pierson didn’t attack Post to gain control of the fox.)
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Both parties have an interest since Popov was initial capturer of the ball, and Hiyashi was able to take full control of the ball because Popov dropped it.
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Determining that Popov was in full possession of the ball before he was attacked is impossible, and it is unfair to Hayashi to assume that he did, because Hayashi did no wrong.
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Determining that Hayashi had full possession and property rights in the ball was unfair to Popov because he made the first contact with the ball, and was prevented from gaining full control by circumstances outside his control.
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An award of the ball to the plaintiff would be unfair to Hayashi. It would be premised on the unsupported assumption that Popov would have caught the ball.
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An award of the ball to the defendant would unfairly penalize Popov. It would be based on the unsupported assumption that Popov would have dropped the ball.
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Each man has a claim of equal dignity as to the other and both plaintiff and defendant have an equal and undivided interest in the ball.
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Where someone undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the failure to continue the effort is interrupted by the unlawful acts of others, he has a pre-possessory interest in the property. This pre-possessory interest constitutes a qualified right to possession, which can support a cause of action for conversion.
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Conversion is the wrongful exercise of dominion over the personal property of another
Ratio: They both have an equal property interest in the ball. It is to be sold and the proceeds equally divided.
Comments: connect to Rubbish Theory (what makes value); INS v AP;
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R. Sloot, Taking the Least of You. (2006) p.152. – Ownership of tissue before/after extraction (cf. Moore)
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Pending case of Dr. Catalona vs. George Washington University in which the University is suing for control of human tissue he collected over years of research and stored at the university.
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Do the samples belong to the Dr, university of the patients?
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Subtext/background: Ted Slavin a hemophiliac had blood that was particularly valuable for Hepatitis B research.
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When his doctor indicated how valuable his blood was he began to sell his antibodies to a number of labs and companies.
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He also donated substantial amounts to further research.
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Distinguish Dr. Catalona from Moore (tissue ownership): But here is one thing the Moore case didn't address: Those tissues are still yours when attached to your body. If you know this ahead of time and if your tissues turn out to be valuable, you can control them and play the tissue market as well as any biotech company.
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Slavin owned his tissue and Moore did not. Difference was Slavin knew in advance his tissue was valuable and established the terms before anything left his body. Moore did not have the information and tried to get rights after tissue left his body.
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Difference b/w Ted Slavin and Moore (Moore):
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Slavin took action before his “parts” had been commercialized.
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Moore tried to get rights in his “parts” after they were removed – but “feeling of ownership doesn’t hold up in court”.
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Justifications for giving property interest to Slavin vs Moore:
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Labour: Slavin took action to inform himself (Locke?)(but labour arguments fall a bit when we consider that Slavin was informed of the value before taking action, whereas Moore was never informed at all).
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Control/first occupancy (Tubantia, Pierson v Post): your rights are only as good as your ability to control them (i.e. while they’re still in your body, you can control).
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Korn (Snr VP Association of American Medical Colleges):
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Consent diminishes the value of tissue; and
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People are morally obligated to allow their bits and pieces to be used to advance knowledge to help others.
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What if Slavin was the only person whose antibodies could cure something like AIDS? Could the state “expropriate” his cells in the light of the overriding public interest?
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Case
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Common Law Cause of Action
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Definition:
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Pierson v. Post
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Trespass on the case
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‘The form of action, at common law, adapted to the recovery of damages for some injury resulting to a party from the wrongful act of another, unaccompanied by direct or immediate force, or which is the indirect or secondary consequence of defendant’s act.’
Remedies: Money.
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Clift v. Kane
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Trover (technically detinue sur trover)
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At that time: Recovery of damages against a person who had found another’s goods and wrongfully converted them to their own use.
Remedies: can recover specific chattel at discretion of court. Also money.
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The Tubantia
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Unspecified: trespass? Injunction granted
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Popov v. Hayashi
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Conversion
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‘Exercise of the right of ownership over goods belonging to another to the exclusion of the owner’s rights’. I.e. you used my thing in a way that made you look like the owner. No need to be the title holder or true owner.
Remedies: money, goods valued at time of conversion.
From decision: ‘Plaintiff's cause of action for conversion is sustained only as to his equal and undivided interest. In order to effectuate this ruling, the ball must be sold and the proceeds divided equally between the parties.’
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Armory v. Delamirie
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Trover
Replevin
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See above
Recovery of possession of disputed object pending outcome of dispute.
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Trespass to chattels
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An unlawful and serious interference with the possessory rights of another to personal property.
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Case
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Why?
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Pierson v Post (Fox)
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How is a wild animal privatized?
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Test: Are you exercising control? By exercising a certain control. Killing it is controlling it but it is not necessary. What is critical is controlling the beast. Pierson’s quality of labour is insufficient.
Dissent: Post had a reasonable prospect of taking (intent).
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Clift v Kane (Seals)
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Who owns the dead and dressed seals when the iceberg drifts?
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Those that killed them, not those that capture the iceberg because the seals were “laboured” and a RP would not expect the ice to break off. Trover.
What is physical control? It is what a reasonable person would think is controlled. Labour argument + reasonable control.
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Tabantia
(Bad faith really affects your rights.)
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Who gets the treasure?
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The first salvage company because they performed some work, marked out the area, set up devices for divers to work. Also, the others had bad faith: they interfered with the devices set up.
Test for a better claim, assuming good faith.
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Does plaintiff exhibit physical control (use & occupation)? Yes.
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Does he have power have power to exclude?
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Does he have intent to exclude?
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Is he treating the wreck as an owner would?
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Popov v Hayashi
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Who owns the b-ball?
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Conversion: If you act like an owner and try to exclude the owner you become the owner. Modern version of Pierson and Post. Different outcome than Pierson v Post, but then again Pierson didn’t attack Post. Rubbish theory, had no value. Then who hit it increased value. INS v AP (ball is common property and taking out of common)
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Conversion often results in the thing being used up.
Summary of Possession
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Adverse Possession does not apply to things/goods/chattels/tangibles/in tangibles
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Being an owner or possessor is not a legal term of art - it is not a term that the court would recognize
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Possession has an element of intent and physical control (Pierson)
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Control can be an actual or reasonable prospect (Pierson) a potential anomaly
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For things that are hard to possess, control is often determined by reference to customary standards of the relevant, trade, or profession, or community.
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Notice how courts mobilize justification to support their position: Labour, law and economics, utilitarianism
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Certain actions can demonstrate possession: excluding, killing, trapping, mortally wounding, acting like a reasonably prudent person salvager
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