Cue the sweeping music and prepare yourselves for an unexpected journey into property rights.
The Hobbit and The Lord of the Rings are not just epic stories, but ones of basic property ownership.
My first law school reading assignment was for Property and understanding the concept of “a bundle of sticks.” This was not an epic journey across Middle-Earth, but over centuries of how human beings “own” property.
And what is the One Ring? It is a thing. And a thing is something that is owned.
So, who owns the One Ring?
A Timeline for My Precious
Sauron created the One Ring; defeated by Isildur;
Isildur, killed at Battle of the Gladden Fields. The One Ring is lost in the Gladden river for over 2,500 years;
Déagol discovered The One Ring on a fishing trip;
Sméagol murdered Déagol and took the Ring for himself. Sméagol becomes Gollum;
After 500 years in the Misty Mountains, the Ring falls off of Gollum’s finger after killing a goblin;
Ring found by Bilbo Baggins; Subsequently won in a game of riddles from Gollum;
Bilbo gives the One Ring to Frodo Baggins;
Samwise Gamgee takes possession of the One Ring after Frodo is thought dead; returns Ring to Frodo after rescue;
Gollum retakes Ring by biting off Frodo’s ring finger.
“Short cuts make for long delays.”
As a preliminary matter, let’s review some basics of Property law.
Black’s Law Dictionary iPad App defines “property” as follows:
1. The right to possess, use, and enjoy a determinate thing (either a tract of land or a chattel); the right of ownership <the institution of private property is protected from undue governmental interference>. — Also termed bundle of rights. 2. Any external thing over which the rights of possession, use, and enjoyment are exercised
Black’s Law Dictionary iPad App defines “lost property” as “Property that the owner no longer possesses because of accident, negligence, or carelessness, and that cannot be located by an ordinary, diligent search.”
Generally speaking, and this will vary state to state, someone who finds mislaid property has no right to it; a finder is entitled to possession of lost property against everyone except the true owner; and a finder is entitled to keep abandoned property. Wikipedia, citing Michael v. First Chicago Corp., 139 Ill. App. 3d 374, 382, 487 N.E.2d 403, 409 (1985).
“The road goes ever on and on”
Sauron was unquestioningly the original owner of the One Ring as its creator. This gave him the right to possess, use and enjoy The One Ring. However, during the final battle with the Elves and Man, Isildur cuts off Sauron’s finger, thus destroying Sauron’s physical form.
Isildur became the rightful owner of the One Ring after Sauron’s defeat as a “spoils of war,” which is property taken from the enemy in wartime operations. (See, Black’s Law Dictionary).
The One Ring is lost for over 2,500 years after Isildur’s death. Given that amount of time and no rightful heirs looking for the One Ring, Déagol became the owner of the One Ring once he found it in on his ill-fated fishing trip as a treasure trove or abandoned property.
Sméagol’s murder of Déagol did not make Sméagol the owner of the One Ring. One cannot benefit lawfully from committing a crime. While Sméagol was in possession of the One Ring for 500 years, he was never the lawful owner due to the murder.
Even if one can argue there was an undue influence over Sméagol from the evilness of the One Ring, Sméagol still killed Déagol to get the Ring. While the “control” of the Ring might not make Sméagol guilty of murder based on an insanity defense similar to the Twinkies Defense, it does not make him innocent of killing Déagol. A Court would be hard pressed to somehow have Sméagol inherit the Ring from Déagol based on the influence of the One Ring to drive Sméagol to kill, even if it was mutual combat from both Hobbits being corrupted by the One Ring.
Things get tricky with Bilbo acquiring the Ring. Technically, the One Ring was no longer in Gollum’s possession, as it had slide off Gollum’s finger. This raises issues of whether the Ring was lost or abandoned. The answer may turn on how much time had passed since the Ring had fallen off of Gollum’s finger on whether it was “lost” or “abandoned.”
Arguably, Bilbo found “lost” or abandoned property that was never lawfully Gollum’s. However, if the Ring was not considered abandoned, Bilbo’s games of riddles with Gollum would show a lawful transference of ownership, if Gollum had perfected title somehow (Gollum did have the Ring for 500 years without being challenged).
This theory is problematic, because it would require 1) murder being cured for ownership; and 2) Bilbo found the Ring before encountering Gollum while navigating his way through a pitch black tunnel. One could argue the Ring appeared abandoned to Bilbo, opposed to simply misplaced. However, if Bilbo was on notice the Ring belonged to Gollum, Bilbo could have problems with unlawfully taking the Ring. With that said, since Gollum planned to kill and eat Bilbo, Bilbo arguably took the Ring out of self-defense.
Bilbo made a direct gift of the Ring to Frodo. As such, the Ring properly belonged to Frodo as a gift and in his possession for 17 years [in the book; the filmed moved a lot faster]. However, after Gandalf’s return and the Ring is placed in fire, the text on the Ring was arguably a 3,000 year old mark of appropriation by Sauron.
A mark of appropriation is a way of showing ownership over an item with an identifying marking.
In the classic case of Ghen v Rich, a whaler was held to be the owner of a finback whale he harpooned because of the distinguishing markings of the bomb-lance. In effect, Ghen marked the whale as his own.
Arguably, Sauron had a mark of appropriation on the Ring showing he was the owner. Additionally, if Middle-Earth, and the Shire specifically, had laws like California that prohibit the appropriation of lost property when there are clues to the proper owner (CA Penal Code 485), Frodo would have to make reasonable efforts to notify Sauron that he (Frodo) had the Ring.
However, the mark of appropriation arguably would not be a valid claim of ownership due to the fact 3,000 years had past and that Sauron lost the One Ring when he was defeated by Isildur.
Assuming that Frodo was the proper owner, Sam briefly was the bailee of the Ring when Frodo was injured by the spider Shelob. While Sam first thought Frodo was killed (and thus took the Ring to keep it out of the enemy’s hands), Sam’s duty was to keep the Ring safe until he could return the Ring to Frodo as a bailee.
In the final battle at Mount Doom, Gollum once again steals the Ring by biting it off Frodo’s ring finger (raising many issues of intentional torts and criminal liability). However, this criminal possession is short lived as the Ring and Gollum fall into lava.
There And Back Again
Property rights give the owner the right to enjoy property and exclude others from using it. J.R.R. Tolkien may not have intended for his epic story of good vs evil to highlight issues of property rights, but Hobbits are not the only ones who take unexpected journeys.