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Sapere aude - dare to be wise
Wednesday, September 10, 2003

Today in Property we continued our discussion of animals ferae naturae and the extension of the concept to fugitive minerals such as oil and natural gas. Questions arose from movies I have seen.

Son of Kong opens with a man in sorry legal shape. After a long and difficult Broadway debut, Kong owner Carl Denham is holed up in a boarding house trying to avoid all the litigation stemming from the events of the previous movie. They have him for destruction of property, wrongful death, trespassing, &c. I think Denham's lawyers (if he could afford them) might make a case that, since Kong was ferae naturae, he lost his property claim when the air force shot the beast from high atop the Empire State building (Pierson v. Post, Supreme Court of New York, 1805). Of course, since prehistoric apes are not indigenous to Manhattan, Denham has strict liability. I think Denham realized this, and that is why he fled on a boat back to Skull Island where the sequel was taking place.

The discussion of mineral rights brought up an old piece of Latin from Hammonds v. Central Kentucky Natural Gas Co. (255 Ky. 685, 75 S.W. 2d 204 (1934): "To whomever the soil belongs, he owns also to the sky and to the depths." I don't like this concept for a number of reasons. First of all, it dates from a time when people thought that a flat earth was the center of the universe. This might be academic, and I am willing to ignore the sky part. But what about the depths? In theory, your property extends to the center of the earth. Does this give you the right to mine iron from the earth's core? Or, why stop halfway? Why don't your property rights continue on through the center and out the other side? When you buy a house on Maple Street, do you also own the mineral rights on the floor of the ocean on the other side of the globe?

Too many hypotheticals. This discussion does remind me of a movie: Lucio Fulci's L'aldila. It's an Italian horror movie from the early 80's, a classic of its type. Basically, a woman inherits a hotel in New Orleans with about four feet of standing water in the basement (No wonder, it's below sea level.), but that is not the worst of her troubles. Beneath the water is one of the seven gates of Hell! Now, from what I gather in Edwards v. Sims 232 Ky. 791, 24 S.W.2d 619 (1929). The woman would only have a legal claim to that part of Hell directly below her property. Could she control who went there and what activities took place? Or, do the resident devils and demons have a prior adverse property claim dating back from eternity. And then there's the question of jurisdiction, but that is a Civ Pro question.

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