Principles of First Title: Merrill, Marx, and Musings on Supplanting First-Possession with Accession

By Ori J. Herstein

The most prevalent theory on how original title should be established (how something unowned by anyone becomes owned by someone) adopts the principle of first-possession. As its name suggests, this principle bestows ownership on the party who is first to establish possession of an unowned resource. In a very interesting and ambitious article Columbia professor Thomas Merrill argues that the principle of accession offers an alternative approach to determining original title. The principle of accession bestows ownership of P (an unowned resource) on x as a function of x’s ownership of Q, Q being the property most prominently connected/related to P. Merrill argues that accession is a ubiquitous background principle in the law of property, shaping numerous legal doctrines. Among his many examples is the common understanding that interest proceeds belong to the owner of the principle on which the interest is paid, that ownership of a newborn animal goes to the owner of the newborn animal’s mother, and that the product of plant life, such as crops, belongs to the owner of the soil the plant grows on.

After espousing the various efficiency virtues of the principle of accession as a principle of original title and explaining accession’s corresponding advantages over the principle of first-possession, Merrill turns to presenting some normative shortcomings of accession. Shortcomings such as ascribing ownership based on status and luck rather than on desert, and having regressive distributive outcomes (making the rich richer). When we should prefer accession to first-possession is, therefore, unclear.

Reading Merrill it occurred to me that in addition to reflecting on the advantages and disadvantages of accession over first-possession in the abstract, it is also worthwhile contemplating the implications of actually exchanging an established first-possession regime with a regime of accession. Implications I imagine may be rather costly in moral as well as economic terms. Here is an example:

In his writing on the laws of the theft of wood, Karl Marx criticizes the 19th century reform outlawing the then long-standing custom entitling peasants to collect twigs and branches that had naturally fallen from trees, even if the peasants were not the owners of the trees or the land. This customary regime assured peasants access to wood, a resource even more crucial then than now (those German winters can be cold). The wood theft reform turned countless ordinary people into thieves and disenfranchised them of their customary privilege to a crucial resource.

How is all this relevant to the costs of shifting from first-possession to accession? Applying modern legal terms to Marx's observations, it seems to me that prior to the reform, ownership of fallen twigs and branches was governed by a principle of first-possession: the branches and twigs belonged to whoever picked them up. The legal reform effected a shift from a de facto first-possession regime of original title to a regime of accession: the fallen twigs and branches were no longer “up for grabs” but belonged exclusively to the landowner as a function of his ownership of the land and the trees from which the twigs and branches fell. The moral costs of this regime shift were, as explained above, grave: over-criminalization (for many the only alternative to stealing was freezing to death); distributive injustice (making the poor poorer); and general harm to numerous aspects of people’s lives (a reasonable Marxist account of these laws is to view them as a tool of political-economy social-engineering: forcing people away from their stable customary, rural, and agrarian life towards an urban, proletarian and capitalist mode of existence); as were, I assume, the economic costs of violently shifting away from a well-established regime (after the promulgation of the wood theft laws 5/6 of all criminal prosecutions in Prussia were related to wood "theft"!).

My sin of anachronism notwithstanding – feudal-based privileges are not really translatable into categories of modern property law – I think employing this historic example to reflect on the principles of accession and first-possession does point to a “need” for supplementing the abstract thinking about the comparative advantages and disadvantages the two principles of original title have over each other, with reflection on the costs and benefits of supplanting one principle for another in actual established legal regimes. In this, I modestly tried to answer Merrill’s call for further theoretical reflection on the somewhat neglected principle of accession.