4 Wild animals
翻開美國原版的財產法著作,在談到"占有"問題時,最先談到的總是野生動物（Wild
animals） 的占有問題,根據(jù)羅馬法的觀點（Roman law veiw）,野生動物屬于共有財產,不屬于任何人（Belong
to no one ）,因此,對野生動物的占有屬于財產的原始取得。根據(jù)優(yōu)先占有原則,野生動物屬于最先占有和控制的人。那么什么是占有和控制呢？先來看看美國財產法教材經常引用的三個經典案例（Leadin
cases）:
案例一:Pierson v. Post
Facts（案情）: P（plaintiff,指原告,下同） was hunting a fox on wild, uninhabited
land. He and his dogs were hunting and pursuing the fox. Knowing
that the fox was being hunted by P and within his view, D（defendent,指被告,下同）
killed the fox and carried it off.
ISSUE（問題）: who has ownership of the fox？
HELD（判決）: in view of the fox is not enough. The fact that the
land was wild and inhabited is important. The court looks at
a bunch of treaties to decide this case because there wasn't
much case law. One authority hold that actual bodily seizure
is not necessary to constitute possession of wild animals. The
mortal wounding of an animal or the trapping or intercepting
of animals so as to deprive them of their natural liberty will
constitute occupancy. However, here, P only shows pursuit. hence
there was no occupancy or legal right vested in P and the fox
became D's property when he killed and carried it off.
這是由紐約州法院終審的經典案例,事情發(fā)生在1805年,原告帶著他的狗在野外的一塊土地（uninhabited
land）上追逐一只狐貍,這一切,被告都看在眼里,他跑過去殺死了那只狐貍并將它取走,擺在法官面前的問題是,誰將擁有這只狐貍的所有權（who
has ownership of the fox）？法院最后認為:占有野生動物需要捕獲該動物而不僅僅是追逐（The most
important thing to remember regarding possession of wild animals
is that the law requires capture rather than pursuit.）,當然,“捕獲”并不一定要求從形體上控制住該動物（Actual
bodily seizure）,有時候,擊中其要害（mortal wounding）也可以構成對野生動物的占有（possession
of wild animals）。
案例2:Ghen v. Rich
Facts: D purchased a whale at auction from man
who found it washed up on the beach. The whale had been killed
at sea by the crew of P's whaling ship which left P's identifying
bomb-lance in the animal. The custom was when the crew of a
whaling ship killed a whale using its identifying bomb-lance,
the ship's owner was considered the owner of that whale. The
finder ignored custom and sold whale.
Held: the court mentioned:
1. marks of appropriation enough
If the whale is killed and left ashore with the marks of appropriation,
it is the property of the captain.
2. Involuntary abandonment （anchor fails to hold）。 After initial
capture, possession was complete.
Anchor failed to hold in this case. Possession here was complete
because whale was killed and marked. Possession unequivocable
intention of appropriating for own use.
不能成為追趕人取得所有權的依據(jù),追趕者不能以其追趕行為對抗先占人。從上面的幾個案例,我們可以看出這一原則也是有例外的
翻開美國原版的財產法著作,在談到"占有"問題時,最先談到的總是野生動物（Wild
animals） 的占有問題,根據(jù)羅馬法的觀點（Roman law veiw）,野生動物屬于共有財產,不屬于任何人（Belong
to no one ）,因此,對野生動物的占有屬于財產的原始取得。根據(jù)優(yōu)先占有原則,野生動物屬于最先占有和控制的人。那么什么是占有和控制呢？先來看看美國財產法教材經常引用的三個經典案例（Leadin
cases）:
案例一:Pierson v. Post
Facts（案情）: P（plaintiff,指原告,下同） was hunting a fox on wild, uninhabited
land. He and his dogs were hunting and pursuing the fox. Knowing
that the fox was being hunted by P and within his view, D（defendent,指被告,下同）
killed the fox and carried it off.
ISSUE（問題）: who has ownership of the fox？
HELD（判決）: in view of the fox is not enough. The fact that the
land was wild and inhabited is important. The court looks at
a bunch of treaties to decide this case because there wasn't
much case law. One authority hold that actual bodily seizure
is not necessary to constitute possession of wild animals. The
mortal wounding of an animal or the trapping or intercepting
of animals so as to deprive them of their natural liberty will
constitute occupancy. However, here, P only shows pursuit. hence
there was no occupancy or legal right vested in P and the fox
became D's property when he killed and carried it off.
這是由紐約州法院終審的經典案例,事情發(fā)生在1805年,原告帶著他的狗在野外的一塊土地（uninhabited
land）上追逐一只狐貍,這一切,被告都看在眼里,他跑過去殺死了那只狐貍并將它取走,擺在法官面前的問題是,誰將擁有這只狐貍的所有權（who
has ownership of the fox）？法院最后認為:占有野生動物需要捕獲該動物而不僅僅是追逐（The most
important thing to remember regarding possession of wild animals
is that the law requires capture rather than pursuit.）,當然,“捕獲”并不一定要求從形體上控制住該動物（Actual
bodily seizure）,有時候,擊中其要害（mortal wounding）也可以構成對野生動物的占有（possession
of wild animals）。
案例2:Ghen v. Rich
Facts: D purchased a whale at auction from man
who found it washed up on the beach. The whale had been killed
at sea by the crew of P's whaling ship which left P's identifying
bomb-lance in the animal. The custom was when the crew of a
whaling ship killed a whale using its identifying bomb-lance,
the ship's owner was considered the owner of that whale. The
finder ignored custom and sold whale.
Held: the court mentioned:
1. marks of appropriation enough
If the whale is killed and left ashore with the marks of appropriation,
it is the property of the captain.
2. Involuntary abandonment （anchor fails to hold）。 After initial
capture, possession was complete.
Anchor failed to hold in this case. Possession here was complete
because whale was killed and marked. Possession unequivocable
intention of appropriating for own use.
不能成為追趕人取得所有權的依據(jù),追趕者不能以其追趕行為對抗先占人。從上面的幾個案例,我們可以看出這一原則也是有例外的