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Abstract
Within the context of property rights’ systems, developed either by
traditional tribal communities or by modern political communities, one will
always be confronted with the problem of non-appropriated and abandoned
assets. In the legal tradition we use to call the first category res nullius, the
second res derelictae.
The question arises by which rule or procedure res nullius and derelictae
should be brought under an ordered property rights’ regime and be put,
provided transferability of such assets is recommendable, within market
circulation.
This entry summarizes the modern economic theories on these issues.
JEL classification: K11
Keywords: First Appropriation, Capture, Occupation, Auction, Title, Initial
Acquisition
1. Introduction
Within the context of property rights’ systems, developed either by
traditional tribal communities or by modern political communities, one will
always be confronted with the problem of non-appropriated and abandoned
assets. In the legal tradition we use to call the first category res nullius, the
second res derelictae. The origins of the res nullius-res derelictae problem
are obvious: (1) either already known assets are not yet appropriated by
members of the concerned community or are abandoned again by these
numbers; (2) new types of scarce resources, which were not known or not
regarded as scarce at the moment of the articulation of the rules of the
property rights system, may appear. Examples of (1) are: newly discovered,
acquired or conquered land such as the American West, wild animals, water
from seas, oceans and streams. Examples of (2) are: inventions and artistic
creations, frequencies of the broadcast spectrum, subsurface minerals, orbital
spaces.
The question arises by which rule or procedure res nullius and derelictae
should be brought under an ordered property rights’ regime and be put,
provided transferability of such assets is recommendable, within market
circulation.
In order to demarcate the subject matter of this chapter as clearly as
possible from other topics, it is necessary to point to some differences with
the problem of the emergence of a property rights system as such and with
the notion of adverse possession.
The problem of emergence of property rights systems regards the
economic rationale and the involved cost categories of setting up a property
rights rule system and institutions as such. Under the heading of emergence
of property rights, the evolutionary proces from an institutionless and
ruleless open access-situation towards an ordered system of rights,
administrative, policing and adjudicative institutions, is analyzed. In this
chapter a problem is discussed which will necessarily always emerge also
within established property rights systems. The problem of the emergence of
property rights systems implies also the rights’ area of political power. For
this subject matter we suppose that the constitutional problem of the right
political power-balance is solved in an economically rational way, so that the
problem may be defined as a choice to be made by an economically rational
political or judicial agent between different alternatives concerning the
establishment of property rights on res nullius on derelictae. Of course, there
are strong similarities between the two subjects. In both cases, for instance,
one has to deal with initial open-access situations and one will be faced, as a
consequence, with the problem of establishing property rights on stock or
rights of capture on flows of stocks.
The problem of initial acquisition should also be distinguished from the
problem of adverse possession. In the former case, one is dealing with assets
which are unowned in terms of the concerned legal systems (for example,
land of the American West in terms of the US legal system, not necessarily
in terms of native American tribal systems). In the latter case, one is dealing
with assets which are, though still owned, not in factual possession of the
owner but of another person, that is, the adverse possessor. The problem of
adverse possession regards both the relationship of the adverse possessor
with third parties and with the real owner (see further in this volume, 1200,
Adverse Possesion and Title Systems). In both cases, however, one has to
deal with the problem of the definition of possession; in the first case
because often first possession constitutes the legal base of initial acquisition,
and in the second case in order to determine when one is entitled to claim
the protection the possessor enjoys against third parties, and to determine
the start of prescription periods.
2. First Appropriation or Auction?
The rule of first appropriation (‘first come, first served’; ‘finders, keepers’)
is firmly rooted in Western legal culture and social practice. Also in state of
nature situations, such as the allocation of parking places on the street and
seats in a restaurant, people regard it as natural that the first occupant
should be respected. Probably the possessive advantage explains a lot of this
spontaneous attitude.
Legal rules, endorsing first appropriation, are often considered as
expressions of a democratic and egalitarian spirit. Everyone has an equal
chance at the start, without regard to his class-status, race or religion.
The American Homestead Act of 1862 is probably one of the most
striking examples of this egalitarian philosophy (Allen, 1991; Lueck, 1995).
The act allowed families to claim 160 acres of land, a surface considered as
sufficient to feed a large farmer’s family. At the payment of ± 10 dollars and
the uninterrupted occupation of the claimed land during five years, the
claimants obtained a valid title. The Act was applicable to the vast
territories, west of the Mississippi-Missouri. About 250,000,000 acres were
patented under the Act. Under Roman law, first appropriation (occupation)
was possible for goods which did not belong to anybody (quae antea nullius
erant), such as wild animals, for goods taken from enemies (quae ex hostibus
capiuntur), for abandoned goods (res derelictae) (see Gaius 2, 66; see D. 41,
1,1,1-7; D. 41,7,1. Van Oven, 1948). For treasure trove (thesaurus) finders
keepers applied when the treasure was found in the finders’ land. When
another found the treasure half of the treasure accrued to the finder, half to
the owner (see I, 2, 1, 39. Van Oven 1948; see also art. 716 Belgian and
French C.C.).
The Common law upholds also a rule of first appropriation concerning
unowned things such as wild animals, as is illustrated by the famous case of
Pierson v. Post (3 Cai. R., 175, N.Y. Supreme Court, 1805 - see further).
First appropriation is also deeply rooted in liberal legal philosophy.
According to John Locke first appropriation through mixing his own labour
with the land constituted the only way of initial acquisition in the state of
nature. As a consequence, Western colonists could freely homestead land in
America, for Indians still lived under a state of nature (Grunebaum, 1987;
Tully, 1994).
While the first appropriation rule is firmly rooted in our legal tradition
and social practices, many economic studies criticize this solution as an
inefficient rule (Anderson and Hill, 1990; Barzel, 1968; Libecap and
Wiggins, 1984; Merrill, 1986). Before discussing the economic merits or
shortcomings of the first appropriation rule, we have to make an important
distinction between the possession of a resource stock and the possession of
resource flows (Lueck, 1995). In the first case the possessor, able to control
the stock in a stable way, has the prospect to future flows of this stock. In the
second case, the possessor, unable to control the stock as such, is only able to
capture flows once they are generated by the stock.
Examples of the two categories are:

The discussion about the efficiency of initial acquisition rules has another
dimension in cases of stock possession than in cases in which only flow can
be captured. Consequently we discuss the case of stock possession first.

In several economic analyses it is pointed out that first appropriation
rules concerning resource stock provoke a race among potential claimants,
by which ownership is established too early. This may lead to a full
dissipation of the rental stream of the asset. In order to show this source of
inefficiency, we compare with the situation in which only a single claimant
is interested in establishing ownership of a stock resource. We assume also
that the flow value grows overtime, due to increases for in the demand the
asset caused, for instance, by population growth (Lueck, 1995, p. 398).
Under these assumptions the optimal time tx to establish ownership for a
single claimant is the point where the marginal return from waiting, that is,
the present value of the stock flow at tx ,equals the marginal cost of waiting,
that is, the present value of the opportunity cost of establishing rights also at
tx.
When a first appropriation rule opens an unconstrained competition
among many potential claimants and these claimants are more or less
homogeneous (more or less at an equal starting point in the race, due to
equality of physical strength, investments and information), rents will be
entirely dissipated.
The competitive rush between potential claimants to claim rights causes
ownership to be established at the tR, when the present value of the rental
flow at tRequals the present value of the entire costs of establishing
ownership at tR. Rights are, compared with the single-claimant situation,
established too early. The race equilibrium implies that the rental stream is
fully dissipated.
The condition of homogeneity among potential claimants is, however,
very unlikely. Several factors in the real world cause heterogeneity among
claimants by which a full dissipation of rental streams of resource stock does
not occur. Heterogeneity in this context does not refer to the variance of
distribution of the costs of establishing ownership among potential
claimants, but to the cost gaps between the lowest-cost contenders.


The distribution of costs in Figure 1b is at greater variance than in
Figure 1a, yet heterogeneity, as understood in this context, is higher in the
distribution of costs in Figure 1a because the differences between the lowest
cost-contenders, the ones most likely to participate to the race, are larger.
In the case of relevant heterogeneity the lowest-cost contender may enjoy
such an advantage to the next best contender that his appropriative behavior
becomes similar to that of a single claimant, by which appropriation at an
efficient time may occur. Heterogeneity of potential claimants can be the
result of different factors such as unequal distribution of talents and
information, an historical advantage in investment, or random factors. It can
be diminished by investments, for instance a company investing in research
capacity in order to fill the gap with a competitor who had started already
his rush to a patentable invention. The other factors are, however, important
enough to preserve in most cases a decisive margin of heterogeneity.
Beside natural factors such as uneven distribution of talents and random
factors, heterogeneity can also be preserved by an institutional factor.
Possession can be defined in such way that competitive races are excluded.
The finders keepers rule, for instance, attaches crucial legal importance to
the random fact of finding, so that competitive rushes become impossible.
As a consequence, one must conclude that a first appropriation rule does not
lead necessarily to full dissipation of rents. When heterogeneity among
potential claimants is guaranteed, dissipation will be avoided and property
rights will be established on efficient point in time.
The main alternative for a first appropriation rule, which can be
defended on economic grounds, is the auction. This procedure presupposes
of course a pre-appropriation by a third instance, such as public authorities,
which pretend to have a general claim on assets, especially land, on the basis
of legal prerogatives such as eminent domain, or the right to the spoils of
conquest or discovery. These pre-appropriated assets are then submitted to
an auction procedure, through which the asset is allotted to the highest
bidder. By this procedure, it is argued, assets are on average allotted to the
most efficient users because these users expect the highest return of the asset
and will consequently bid away with the highest offers. This market-
mimicking procedure implies, however, also some costs (Lueck, 1995, p.
403). Mainly three cost-categories must be envisaged:
(1) Defining the auctioned assets: an auction requires a definition of the
auctioned assets; such a definition requires costly information (search costs,
prospection, valuation) about the assets in order to avoid the so-called
winners curse. Such costs can be prohibitively high, so that an auction
procedure has to be written off for initial acquisition. An extreme example in
this respect regards inventions. In order to auction them, the auctioneer has
to invent them first, in order to define them. A first to invent policy, which
allots the intellectual property to the inventor himself, is obviously much
cheaper because it avoids the transaction costs between inventor and
auctioneer, and auctioneer and bidders.
(2) Costs of the auction: auctions are costly, not only on the side of the
auctioneer, but also on the side of potential bidders.
(3) Costs of protection of property rights: in order to auction, the auctioneer
has to secure property rights on the auctioned assets.
In the choice between the two main alternatives, that is, first
appropriation or auction, a trade-off exists between two categories of costs:
the efficiency losses due to too early establishment of property rights in
competitive races on one hand, and the different costs of auction procedures
on the other hand. In particular two factors are decisive in this respect: the
heterogeneity-homogeneity of potential claimants for the cost levels of first
appropriation; and the possibilities to define and to evaluate ex ante the
concerned assets for cost levels of auction.
3. Rules of Capture
When the establishment of property rights on an entire stock is impossible or
at least too costly, because exclusion costs are prohibitively high, property
rights will only prevail on the flow of the stock.
For instance, instead of establishing property rights on an entire oil well
underground, property rights are only possible on pumped oil; instead of
establishing property rights on herds of wild animals, property rights are
only possible on captured and killed game; instead of establishing property
rights on entire streams or rivers, property rights can only be established on
water taken from them.
A situation of capturing only flows can lead to an open access
dissipation (see also Chapter 2000 in this volume). With an increasing
number of users the marginal return to the effort of using declines. Due to
the lack of any restriction, the numbers of users increases until the marginal
return is equal to the marginal effort, which means that all rents from the
flow of the resource are dissipated (Lueck, 1995, p. 403).
Take, for instance, a river in a desertifying area, submitted to an open-
access regime of capture. The evolution of returns is as follows:

The optimal amount of users is 50 while under an open-access -regime
additional users will show up until the cost of effort is equal to the average
return, which is at the same time the marginal return for each user
separately because in the example each user is supposed to exhaust water
during the considered period. Consequently, only once the number of users
will increase up to a number of 90. At that number profits of water use are
nil.
With this problem in mind, we may assume that several institutions,
legal as well as customa, which regulate a situation of flow capture, may
find their economic rationale in an attempt to solve or to alleviate this
problem. We can distinguish the following ones:
3.1 Common Property Arrangements
The open access is restricted to some users. By this a kind of common
property on the asset is introduced, the commoners being the ones entitled to
capture. This can lead to more optimal use-levels. On the other hand
exclusion costs may increase. Because there is an inverse relationship
between exclusion costs and the number of included, the trade-off between
exclusion costs and costs of rent dissipation may lead to a number of users,
which is higher than the optimal amount (Lueck, 1995, p. 422).
Examples of such a common-property arrangments are:
(1) Riparian rights: the system of riparian rights prevails in England and in
the eastern American states. It is based on old common-law doctrine. Water
rights are tied to ownership of land, bordering the water. Owners (or people
with a derived right) of such land are entitled to correlative and reasonable
use of the water. The water rights cannot be sold apart from the land (Lueck,
1995, p. 427; Rose, 1990).
The system creates a common property regime of adjacent landowners to
the water. Due to the restriction the users are able to control each other in
order to prevent overuse and dissipation. The common property regime by
the bordering landowners permits also a low-cost -control. Downstream
owners will suffer from overuse or pollution from upstream -owners and will
react quite swiftly. The setting up of expensive superincumbent control
agencies can be avoided in this way.
(2) The commons: in most villages in Europe some land, such as wasteland
and pasture-land, was held in commons. All families of the village were
entitled to use this land for gamekeeping, for gathering dead wood and for
grazing their cattle. Because the villages were involved in long-term and
multiplex relationships, rules on overuse were easy to implement. In fact,
most historical commons do not reflect the dramatic picture of the tragedy of
the commons as depicted by Hardin (Ellickson,1993; Lueck, 1995, p. 422).
 (3) Wild game: in feudal England, the right to capture game was limited to
feudal lords as a privilege. This restriction, based on class origin, limited
access and probably prevented inefficient over-hunting (Lueck, 1995, p.
424). It was expected that the collapse of this feudal privilege system would
lead to overuse and rapidly declining populations of wild game. This was
effectively the case at the beginning of the French revolution, when all
farmers suddenly started to hunt, mainly in order to protect their crops
against pigeons and rabbits. As a consequence, strict regulation had to be
imposed to control the hunting of game in France. Also in England, game
hunting privileges were abolished during the nineteenth century and
ownership rights to wild game were granted to all landowners. The effect
was, however, far less dramatic in England than in France.
The enclosure movement had created large consolidated holdings. This
permitted large wild game stocks to live on a few holdings. Agreements to
control game capture remained as a consequence, easy to reach and to
implement.
In America, with its scattered private landholdings (see also the
Homestead Act) and its wide-ranging species, control of game capture by
private owners was difficult, so states were granted extensive regulatory
control over the access and use of wildlife.
3.2 Intensive and Stable Group Interaction
As mentioned already in quoted examples, multiplex relationships between
the members of the capturing community will stimulate spontaneous (that is,
not imposed and not enforced by an external authority) restriction of the use
of flows and the prevention of open-access dissipation.
If some members of the same community care more than others about
the common and the future wealth of it (moral entrepreneurs) they will be
able to develop restrictive rules and practices, which can be enforced by
second- party -control (tit for tat, because multiplex relationships imply
repeated games) and by third-party control, based on gossip and reputation
(Ellickson, 1991).
Historical examples of such close-knit societies, restricting spontaneously
the capture of flows, are easy to find: the ‘commons’ of agricultural villages;
hunting and fishing rights in tribal societies (Johnsen, 1986); and customs of
lobstermen in Maine (Acheson, 1989).
3.3 Maintaining Homogeneous Group Membership by Equal Contingent
Rules
Often groups whose members are entitled to flow capture apply a rule
following which each member is entitled to a same amount of capture. At
first sight such a rule seems to be inefficient, as the highly productive
capturer will spend too little effort, while the less productive too much.
It is possible, however, that equal-contingent rules are maintained in
order to stimulate homogeneity of group membership. These rules force a
group to preserve homogeneity by screening potential members, by
endoctrination and by limiting the transfer of membership rights (see below)
(Lueck, 1995, p. 408).
By preserving homogeneity the group prevents the more efficient
capturers from eliciting a race for capturing, which leads to overuse and
open-access dissipation. As an historical example we can quote the equal
access of English villagers to the common resources (pasture - grass, estover
- wood, diggings - coal and stones, turbary - burf and peat, piscary - fish)
(Lueck, 1995, p. 422).
3.4 Restriction of Transfer of the Right to Capture
Restrictions of trade are usually inefficient as they hamper the allocation to
the highest bidder, on average the most efficient user of the good. When
property rights can be established on entire stocks, limits to transfer, which
might have existed for religious and military reasons, tend to disappear. The
gradual marketization of land in European legal history serves as an
example. When rights can only be established on flows of stock, the
restriction of transfer may find its economic rationale in the preservation of
homogeneous membership and the avoiding of open access dissipation
(Lueck, 1995, p. 409). When rights of capture are transferable one can
expect a rapid decline of homogeneity as rights will be always traded to
more efficient users, offering a price which is higher than the expected
capture returns of the present user. Consequently, trade of capture rights will
lead to heterogeneity of users, possibly leading to a race for capturing.
Examples of such restrictions of trade are: the rights of English villagers to
the commons, the right of riparian owners to use water for household
consumption.
4. Definition of Possession as a Title for Initial Acquisition
Under a rule of first appropriation the person who took control over the
concerned asset becomes the owner. This apparently simple rule is, however,
often difficult to apply to practical cases as questions may arise about the
concrete acts and signs necessary to establish factual control. This is
illustrated by the famous case Pierson v. Post, 1805. Post was hunting a fox
on an unowned beach. He almost had the beast in his sights when an
interloper appeared, killed the fox and ran off with the carcass. Post sued on
the theory that his pursuit established his property right to the fox. The court
however, decided otherwise, arguing that only the one who killed or at least
mortally wounded the animal and thereby bringing it under a certain control
had a claim to ownership. One can find similar cases in all legal systems,
about which long doctrinal debates developed.
Does economics have to say anything in this debate? Can we develop an
economic criterion for an efficient definition of possession in order either to
apply the first appropriation rule or to fix the beginning of prescription in
case of adverse possession ?
From an economic point of view the definition of possession should meet
two criteria: clarity and stimulation of heterogeneity of potential claimants.
4.1 Clarity
The acts and circumstances which serve as a sign of possession should be
clear and unambiguous to the members of the legal community. They must
reveal in a clear way one’s intent to appropriate.
By linking ownership rights to unambiguous, visible signs of possession
one avoids further inefficient racing for a specific asset and endless trials
about possession. The preference for clarity is illustrated by the famous case
Brumagin v. Bradshaw 1870 (39 Cal. 24 1807; Rose, 1985). The case
concerned a considerable amount of land in the Potrero district of San
Francisco. Before this land had become a residential and commercial area, it
had been settled by a certain George Treat, who pastured livestock on the
land. The party which claimed through Treat alleged that the latter had
repaired a fence across the neck of the Potrero peninsula. The other party
alleged that outsiders could still land in boats and that there was a gap in the
fence. The court ruled that a jury should consider whether Treat’s fences
gave sufficient notice to the public that he had appropriated the property.
Also in the case Pierson v. Post 1805, the court ruled in favor of Pierson,
who killed and the fox took the carcass. The court decided in favor of the
party which had itself put in the clearest position of possession and about
which uninformed outsiders would most likely recognize the possession.
The preference for clarity in the definition of possession implies also a
trade-off between inefficient racing and litigation costs on one hand, and the
impairing of incentives of efficient appropriation by saucy intruders on the
other hand. In the case Pierson v. Post, Pierson free-rode on the efforts of
Post. Such a ruling could stimulate free riders’ attitudes in general, by which
efficient appropriative behavior would be hampered and suboptimal
appropriation levels would prevail (Rose, 1985).
4.2 Stimulation of Heterogeneity among Claimants
As mentioned already (see Section 2) the dissipation of rental streams is the
highest when potential claimants are homogeneous. By defining possession
in a certain way it is possible to influence the homogeneity-heterogeneity
level of potential claimants and to prevent rent dissipation to a certain
extent. As a consequence, some possession rules may find their economic
rationale in the stimulation of claimants’ heterogeneity. The following
examples can be given:
(1) Finders Keepers Rule for Finds: this rule applies often for treasure trove,
abandoned property (voluntary parting) and lost property (involuntary
parting). Salvage rules under maritime law, however, allow for a division of
the spoils (sunken ship and their cargo) between finder and the former
owner.
Art. 716 Code Civil (Belgium-France) also allows for a fifty-fifty
division of treasure trove between finder and owner, when the treasure is
found on somebody elses’ land (see also art. 939 Code Civil Quebec)
(Dukeminier and Krier, 1993; Lueck, 1995, p. 413).
The finders keepers rule limits competition among potential claimants to
time ‘first come first served’, by which appropriation becomes largely
dependant on random factors. Consequently, other potential claimants than
the finder are not able to eliminate heterogeneity by investments.
(2) Telepossession: in the case Columbus-American Discovery Group Inc. v.
Atlantic Mutual Ins. Co., 1992 (974, F. 2d 450-4th Cie 1992) (Lueck, 1995,
p. 413) the court allowed the establishment of rights on a sunken treasure
through the use of remote video cameras which produced live images. It did
not require physical possession, but coined the term telepossession.
By such a definition of possession in this case the court maximized
heterogeneity among sea explorers and prevented costly duplication in
exploration.
(3) The Homestead Act 1862: this already mentioned Act (see Section 2)
seems to refute the thesis of efficient definition of possession. Rather, the
procedures of this act concentrated on stimulating the homogeneity of
potential claimants through publicly announcing and promoting the
homesteading of the concerned areas.
Further elements of the historical context of this act, however, offer an
explanation of these procedures. On the one hand, auctioneering and land
sale by the government, the most used procedure prior to the Homestead Act,
proved to be too costly for the frontier (definition and division of land
tracts). On the other hand, squatting on the land at the frontier increased
rapidly, which created rising problems for protecting the squatters against
Indians and criminal gangs. By opening blocks of land tracts to the public,
by organizing races among many potential claimants for these tracts, dense
settlement of land was promoted, by which land enforcement costs were
mitigated (Allen, 1991; Lueck, 1995, p. 414).
4) Hard rock mining: the American General Mining Law of 1872 establishes
a first appropriation rule for mineral rights on public lands. The miner who
discovers a valuable mineral deposit, locates the claim and does the
assessment work, can apply for a patent. While prospecting, he is protected
by the doctrine of pedis possessio. The law protects the possession of the
miner in order to obtain a patent eventually later on, at the moment when
heterogeneity is the highest, that is, at the moment of the discovery (Lueck,
1995, p. 416).
(5) Intellectual property: for this type of property, mostly a first to invent
policy is followed by applying the rule of acquisition by creation
(Dukeminier and Krier, 1993).
The auction alternative would only be possible here after the invention or
creation, which would impair incentives for research or artistic creativity a
lot.
Several studies point to the fact that the law tends to grant the invention
ownership very early, when claimant heterogeneity is still large.
Also courts tend to grant broad patent protection when a new invention
signals room for many improvements, thus preventing a race for ownership.
When an idea has limited room for improvement, only a narrow protection
is granted (Grady and Alexander, 1992).
(6) Whaling norms: as for wild game the rule of first appropriation may pose
a problem for whale fishing. Often whales are pursued by one ship,
harpooned by another and, after breaking loose, killed and captured by a
third ship. Customary rules were developed among whalers which reflect
the avoidance of wasteful races by fixing possession at the moment of high
heterogeneity. These rules differed, however, according to the kind of whale
being fished. When the right whale, a docile kind of whale, was mostly
fished, whalers applied the fast fish-loose fish rule, that is, the whaling boat
which kept the whale to the boat with the harpoon was the owner. If the
whale got loose, it was open again for catching. This rule preserved
maximum heterogeneity.
When whale fishery turned more to the catching of sperm whales, a very
energetic kind, whalers applied the iron holds the whale rule, that is, even
when the fish got loose but the boat whose harpoon was in the whale
remained in fresh pursuit, this boat preserved its possession. The other rule
became unpractical because sperm whales, once harpooned, could sink the
boat by diving. As a consequence, a rule which preserved heterogeneity too,
but was less dangerous, was applied (Ellickson, 1991, p. 195).
Acknowledgements
The author would like to thank Roger Van den Bergh for organizing the
anonymous refereeing procedure.
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