金融法律辅导：美国财产法(4)

翻开美国原版的财产法著作,在谈到"占有"问题时,最先谈到的总是野生动物（Wild

animals） 的占有问题,根据罗马法的观点（Roman law veiw）,野生动物属于共有财产,不属于任何人（Belong

to no one ）,因此,对野生动物的占有属于财产的原始取得。根据优先占有原则,野生动物属于最先占有和控制的人。那么什么是占有和控制呢？先来看看美国财产法教材经常引用的三个经典案例（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（问题）: who has ownership of the fox？

HELD（判决）: 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.

这是由纽约州最高法院终审的经典案例,事情发生在1805年,原告带着他的狗在野外的一块土地（uninhabited

land）上追逐一只狐狸,这一切,被告都看在眼里,他跑过去杀死了那只狐狸并将它取走,摆在法官面前的问题是,谁将拥有这只狐狸的所有权（who

has ownership of the fox）？法院最后认为:占有野生动物需要捕获该动物而不仅仅是追逐（The most

important thing to remember regarding possession of wild animals

is that the law requires capture rather than pursuit.）,当然,“捕获”并不一定要求从形体上控制住该动物（Actual

bodily seizure）,有时候,击中其要害（mortal wounding）也可以构成对野生动物的占有（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.

不能成为追赶人取得所有权的依据,追赶者不能以其追赶行为对抗先占人。从上面的几个案例,我们可以看出这一原则也是有例外的