There are four ways to establish property rights of personal property. In a previous article, adverse possession was mentioned as one of those means. The other means includes capture, finding, and gifting personal property. This article focuses on the rule of capture.

However, we have already introduced this concept in the past. Pierson dealt with the capture of wild animals. The discussion continues with State v. Shaw.

State v. Shaw

65 N.E. 875 (Ohio 1902).

Shaw and others are the defendants, charged with grad larceny (carrying away personal property belonging to another while intending to keep it). They were dismissed and the state appealed.


Was larceny committed?


“To acquire a property right in animals ferae naturae, the pursuer must bring them into his power and control, and so maintain his control as to show that he does not intend to abandon them again to the world at large. When he has subjected them within his own private inclosure. . . a felonious taking of them from his inclosure. . . will be larceny.”


The fish were trapped and the taking of them was larceny. Reversed.


The defendants had cast nets into an enclosure at Lake Erie that contained several fish and pulled up seven hundred thirty pounds of fish, valued at 41 dollars. The fish were the personal property of Grow and Hough.


The fish were not able to escape, except only a few, during times of flood and storms. So, it was relatively easy for the defendants to pick up the nets and snag the fish. Because the fish were previously captured, doing so is considered larceny.

Other things to note is that the capture must be within a certain control. The fact that the fish had a way to escape was insignificant because the majority of the fish could escape. Also, the location of the control is central. If the fish were in a pond on private property, the defendant’s case would have been even weaker.

Additional Notes

The rule of capture applies not only to animals but can also reference natural resources such as oil, water, and natural gases.

In Pierson, for the rule of capture to apply, escape needs to be rendered impossible. However, here, nearly impossible is sufficient. In other words, the owners would have shown a certain control. Here, the fact that there were so many fish confined in the same place showed that a certain control was exhibited.

We can contrast this case from Pierson where pursuit is not capture. Here, capture had already occurred.

Popov v. Hayashi

2002 WL 31833731 (Cal. Sup. Ct. 2002).

Our cases thus far have dealt with wild animals. This case turns now to other forms of capturing personal property. In this case, a baseball.

Popov is the plaintiff, this case is in the trial stage.


Who captured the ball?


The actor must maintain possession of the ball after making incidental contact with people and things.

“Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property.”

This interest can be used to support a cause of action for conversion.


The ball should be sold and the proceeds split between the parties.


Barry Bonds hit his 73rd Home Run of the season in 2001. The crowd surged forward in an attempt to catch the ball. Popov had the best opportunity, but the footage is inconclusive of whether he would have caught the ball. Hayashi ended up on the ground, pushed by everyone else. He saw the ball on the ground and picked it up. Now, the question remains, who possesses the ball?


Popov has a pre-possessory interest in the ball because he had the first opportunity to catch it. This would protect his interest form any wrongdoers. However, Hayashi was not a wrongdoer and he had the ball. Thus, it would be unfair to deprive the other of their interest in the ball. For, giving the ball to one or the other would provide a conclusion that is inconsistent with the facts. In the sake of fairness, the ball should be sold and the proceeds sold to satisfy both interests in the ball.

Additional Notes

A pre-possessory interest occurs when someone has taken significant but incomplete steps to claim abandoned property. The question is, how many steps are necessary for the pre-possessory interest to occur? Another question is, what should be the outcome of determining who has pre-possessory interests.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 1L Spring, Property

Will Laursen

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