by Omar Ha-Redeye and Jacob Kaufman
(from the March Issue of Nexus, Western Law’s Student Newspaper)
The novel The Lord of the Rings was a phenomenon. The movie trilogy based upon it has grossed over a billion dollars and won a slew of Oscars.
But what’s really interesting about the work is that it is about property law.
Seems Like a Property Exam
Consider the following facts which seem ripped from a first year property law exam:
- Sauron holds ownership in the Ring through accession, by working one thing (base metals) into a new thing (a ring of power)
- He is dispossessed by Isildur, who now holds possession in the Ring.
- Isildur loses the Ring (he has a manifest intent to exclude others but no physical control) when it slips off his finger as he was swimming in the Anduin river to escape from Orcs.
- Déagol finds the Ring.
- He is dispossessed by Sméagol (a.k.a. Gollum).
- Gollum loses the Ring and it is finally found by Bilbo.
- Bilbo gifts the Ring to Frodo. Later, Aragorn (the heir of Isildur) tells Frodo to carry the ring to Mordor, making Frodo his bailee.
- Sam, assuming that Frodo is dead, takes the Ring according to instructions to help Frodo with the Ring in grave circumstances. Sam is acting here as a (fictional) bailee and he returns possession to Frodo after finding him still alive.
- At the end of the book, Gollum restores his possession of the ring. Seconds later, he and the Ring are both destroyed. At this point all property held in the Ring disappears.
Hierarchy of Ownership and Possession
The Lord of the Rings story is that of a property hierarchy with one owner and a series of possessors.
Bilbo states,
[The Ring] is mine isn’t it? I found it.
He seems to be laying a claim of ownership through finding. But finding only lets a finder hold possession in a thing. It does not extinguish the rights of those higher up on the hierarchy.
In Anderson v. Gouldberg it was found that “possession is good title against all the world except those having better title.” It does not matter that several of the possessors of the Ring like Isildur and Sméagol obtained possession by violently dispossessing others. That circumstance does not change the dispossessor’s rights vis-à -vis a third party.
The fact that all parties subsequent to Sauron hold only possession in the ring is acknowledged in the text. When Gandalf forces Bilbo to give up the Ring, he tells him to,
[s]top possessing [the Ring].
After discovering that Aragorn is the heir of Isildur Frodo exclaims that the Ring really belongs to Aragorn. Aragon corrects him:
It does not belong to either of us, but it has been ordained that you should hold it for a while.
Frodo later elaborates that the Ring,
does not belong to any mortal – though if any could claim it, it would be Aragorn.
Here he demonstrates his understanding of the property hierarchy – with Sauron at the apex as owner and Aragorn as next highest as a descendent of the first possessor after Sauron.
Aragorn’s Claim
What claims can Aragorn make that he is the rightful owner?
Isildur claimed the Ring as weregild for the death of his relatives at Sauron’s hand.
As Professor Gwen Seabourne notes this is,
compensation for the kin of the slain in respect of a (wrongful) killing.
If a claim in weregild is upheld then Aragorn would hold ownership of the Ring. The Ring, however, is shown to have Animus Revertendi as it seeks to return itself to Sauron.
Would this cut against a transfer in weregild? Canadian Courts have, so far, not ruled on how the intrinsic characteristics of magical items demonstrate who holds what property in them.
Another claim that Aragorn could make is that Sauron’s ownership of the ring elapsed due to abandonment.
Simpson v. Gowers defines abandonment as a “giving up, a total desertion, and absolute relinquishment.” Sauron did believe that the Ring was gone forever, which would support the idea that an abandonment occurred.
Asessing a Claim of Abanonment
Stewart v. Gustafson sets out four factors to further help determine if property has been abandoned:
- Passage of Time: As the years go by, the likelihood of abandonment increases. In this case 3000 years passed, which is a not insignificant lapse of time.
- Nature of Transaction: Certain transactions lend themselves more to assuming abandonment, having objects cut off your hand does not appear to be one of them.
- Property Holder’s Conduct: Abandonment can be inferred if a property holder does not try to require possession a reasonable time after receiving notice. After finding that the Ring was still attainable, not only is Sauron trying to retake possession but he is described as “seeking it, seeking it, and all his thoughts [are] bent on it.”
- Nature of the Thing: As the value of a chattel increases, the likelihood of inferring abandonment decreases. The extreme value of the Ring (it could be used to conquer all Middle Earth) cuts against an abandonment. The specific nature of the Ring also cuts against abandonment. Gandalf specifically states that “[the Ring’s] keeper never abandons it”.
It appears to be that the evidence points to no abandonment having occurred.
However, it seems likely that 3,000 years well exceeded the limitations period.
Therefore, Sauron has lost his right to legal recourse.
As far as Canadian law goes however he would still have a self-help remedy, which he apparently exercised by sending the Nazgûl to seize the ring.
Updates
- Ilya Somin, Assistant Professor who teaches property at George Mason University School of Law, adds some notes to this story at the Volokh Consipracy,
In addition to the primary property dispute over the ownership of the Ring, there are several other conflicts over property in the Lord of the Rings, such as the claim of Rohan’s neighbors that the Riders wrongfully disposessed them of their land, the conflicting claims to ownership of Moria as between the Dwarves and the Balrog, and Aragorn’s claims to inherit the lands and other property of his ancestor Isildur. The chapter on “The Scouring of the Shire” with its scathing portrayal of Saruman’s “Gatherers and Sharers” and Saruman’s nationalization of industry is a thinly veiled attack on socialism. None of this is to say that Tolkien was some kind of libertarian. He hated modern industry and capitalism. But he did have a conservative traditionalist’s attachment to private property, and it comes through in the book at many points.
- Be sure to check out the comments on his page as well, including IP claims laid by the Elves.
- Although David Colborne says this post is “geeky as hell,” Avierra of The Floating World retorts, “hot nerds are so very hot” (you should see us in wool suits in the summer). She then point out that Heidi Bond, a Michigan law student, has reviewed offer and acceptance in the LOTR context.
- John C. Wright raises issues of intestate and inheritors.
- K-wat raises international jurisdictional issues (we use Canada because that’s where we live, though common law principles are similar)
This is a reformatted article from a previous post. Acknowledgement is provided to Prof. Adam Parachin, who teaches first-year Property at the University of Western Ontario for the initial inspiration of these posts.
Oh no! Smeagol took the ring by an act or robbery, accompanied by a felony-murder, no less. Isldur, on the other hand, siezed the ring, a weapon, from the enemy in a war, which was totally lawful. Isildur, remember, after the death of Elendil was both king and commander. Did we really need to wait for a retired JAG to remind us of the difference between war and private violence?
You have some typos in this article. In point 3 of the “ripped from a first year property law exam” section, Anduin is misspelled “Audiun”. In the “Hierarchy of Ownership and Possession” section, Bilbo is twice misspelled “Biblo”.
LawIsCool: Thanks, will fix.
Mr. Gots–
Good point!
I agree with you that there is definitely a distinction between murder and war (and I hope I didn’t come off as suggesting otherwise).
However, I disagree with you that Isildur’s seizure of the ring is per se lawful. Under Canadian law there is no right to property by conquest. In fact, s. 77(g) of the National Defence Act forbids such conduct (“every person who… steals from, or with intent to steal searches, the person of any person killed or wounded, in the course of warlike operations … is guilty of an offence.”) The status of the ring as a weapon might change things but I believe that Isildur’s conduct precludes him from taking advantage of that.
Under the law of Middle Earth, Isildur chose to frame his seizure of the ring not out of a generic right of conquest but in wereguild. As I noted if the Court accepted that claim, he would hold ownership of the Ring.
[This comment was eaten last night, I’m reconstructing from memory but it may be slightly different]
Two things:
1. There’s no “u” in my last name. Don’t feel too bad about that, though – you’re certainly not the first person to throw one in there. *grin*
2. I meant “geeky as hell” in a good way! If we live in a world where “geeky” is an insult, well, stop the world – I want off!
Though I am but an impotent shadow wandering in the wastelands to the east , I would like to speak tagainst those who so brazenly claim my property now that I have fallen so utterly.
However, as I am still pursuing action against the heirs of Isildur for dispossesion and housebreaking (not to mention loss of a finger), upon the advice of counsel, I am unable to comment further………until the age of man is over and the age of the Orc begins.
Funny.
“It appears to be that the evidence points to no abandonment having occurred.
However, it seems likely that 3,000 years well exceeded the limitations period.
Therefore, Sauron has lost his right to legal recourse.”
I think it could be argued that 3,000 years is not relatively a long time if, indeed, the original owner is still around.
There IS a lot of property law in the LoTR – I never really thought about it before.
How about mathoms – is there a legal angle on those?
“Sauron did believe that the Ring was destroyed, …”
No he didn’t — the effects of the Ring’s destruction are unmistakable. He knew it was lost, perhaps irretrievably so (washed down the Anduin to the bottom of the sea).
I would point out the hierarchy of property claims against the One Ring is complicated by the fact that Sauron the Great perished at the hands of Elendil and Gil-Galad, or, at least, was reduced to a shadow. If so, did he die with a will? If he died intestate, who is his nearest relative? The race of the Maiar, angelic beings, do not seem to have family relations, as fathers, sons, and cousins, so the disposition of property through the probate court would be problematical.
Mark–
True, 3,000 years probably wouldn’t be that long for someone who lives as long as Sauron. However, the limitations period is purely objective and not based on the lifespan of the people involved.
Yvonne–
Hmm… I guess just the standard rules on ownership apply to mathoms. Some of them are frequently regifted, some just collect dust in the equivelents of attics (what’s the name of an underground attic?) but in all cases someone holds ownership of them. I guess you could use them to discuss the law of gifts.
Mr. Woods–
Good catch! I meant something like “gone forever” but yeah destroyed is definitely not the word to use– fixed in the text. The good thing about being a blawger is that the internet is your editor!
Mr. Wright–
Fascinating point. Personally I don’t think that Sauron died that day. However, if he is considered dead and if there is no will (which as you point out, there is no evidence for) then in Canadian law it seems that then property in the ring would go to Eru (as Sauron’s father, if you accept him as father as opposed to, say, creator). As you point out, it’s hard to say what the relationship of the Maiar are to Sauron. If they are cousins (or second cousins) as you guess then Sauron’s property will be distributed to next of kin of equal degree of consanguinity equally. So it seems that all five Istari would hold joint ownership in the ring equally. If we can’t identify any Maiar as relatives, then it looks like property in the ring would escheat to the State. Which I guess would be Isildur. So that’s another way to give ownership to Isildur.
The assumption of limitations that would be in place for that “realm” needs to consider that the limitations on “real” Earth are based on our lifespans, while the limitations on Middle Earth would be based on the lifespans of those making the law (immortals?). Perhaps it could be hashed out to our satisfaction on “The Big Bang Theory” on CBS? If we are considering only the law as it stands in reality, I humbly and geekily concede the point.
Mightn’t common law suggest that the Crown has ownership of treasure trove? Would that be Aragorn, then? Does the concept of treasure trove still exist?
I think that the author overlooked one issue. Deagol finds the ring in the Anduin River in 1263. South Staffordshire v. Sharmon held that property found in a lake was “attached” to the land and belonged to the possessor of the property.
The part of Anduin River, where the Ring was left for thousands of years before being re-discovered, was in Rhovanion, which was later conquered by agents of Sauron in 1260. So it looks like Sauron might have yet another claim for the ring since he was in possession of the land at the time the Ring was re-discovered.
Also, since the One Ring is a chattel (arguably even a piece of art), the “Rule of Discovery” from O’Keefe v. Snyder, Sauron is probably not precluded from asserting his claim until he actually discovers that Frodo is in possession of the Ring. This puts a big cloud on Bilbo’s title by adverse possession.
So perhaps Sauron has another cause of action to retrieve the One Ring.