Is Merrill’s analysis persuasive?
In his premise Thomas Merrill presents the principle of accession as an alternative to the principle of first of possession as the source of original title to property. The principle of accession holds that ownership is established by assigning resources to the owner of some other thing that is already owned. According to Merrill, in some circumstances either principle, accession and first of possession, could be used to resolve a dispute over original title but in these areas of overlap, accession rather than first possession tends to prevail.
After reading Merrill’s analysis, it appears that the concept of accession has some pros, such as fairness and avoiding conflicts, but in the other hand it has some cons, such as unpleasant economic ramifications, killing creativity, and finally unclarity and confusion in some cases. Merrill’s analysis also doesn’t add to our understanding of property law.
Pros of the accession:
In his analysis to the concept of accession, Merrill represented good examples of how accession could provide fairness to the people acquiring property. For example in the case of crops, Merrill showed how accession could provide fairness to the good faith cultivators from being denied the fruits of their labors. In Merrill’s hypothetical, a life tenant dies or a tenant at will is terminated. According to Merrill when this happens, under the doctrine of emblements, the crops belong to the person in possession of the soil when the crops were planted, which is prevent the good faith cultivators from being denied the fruits of their labors.
In another example, Commingled goods, Merrill proved that accession plays good role in providing fairness to the person acquiring property. Commingled goods refer to goods that physically united with other goods in a way that loses the identity of the original goods. Merrill answers the question of which owner of the two owners of the goods should be the owner of the final good, by the owner who supplied the larger or more valuable input. The application of the accession principle in this case, represents fair results.
Another example of the fairness of the principle of accession appears in the case of ad coelom, which declares that the owner of the surface of land owns from the depths to the sky. Between the two principles, the principle of first of possession and the principle of accession, the later avoids potential conflicts between those who seek the acquisition of properties found under the lands, such as natural gas. For example, in the case of acquiring gas, applying the concept of accession sounds fairer than the concept of first of possession. Among the three theories applied to natural gas; the theory that the gas is considered Ferae Nature, the theory that the gas belongs to the rest of the world and that the State owns subsurface mineral rights go to the government and the theory that the gas belongs to the owner of the surface. The last theory sounds fairer and it avoids conflicts in the society.
Similarly in the case of intangible property, the concept of accession provides fair results comparing to the concept of first of possession. In the case of Adaptation rights, Merrill provide reasonable application to the principle of accession to the author of a copyrighted book who, according to Merrill, has the exclusive right to prepare a screenplay for a movie based on the book because he is the holder of the more prominent property, the original book. Also in the case of trademarks, the owner of a trademark should be protected from those who use similar trademarks in a way that would lessen its uniqueness of the original trademark.
One of the pros of the principle of accession is that it helps in avoiding conflicts. As mentioned above, applying the concept of accession, avoid those who are interested in acquiring property fighting over already established principles. For example in the case of natural gas, accession will make it known that only the owner of the surface is the owner of what is under it, therefore other people will not seek acquiring these properties.
In his paper, Merrill describes this feature by explaining that the first possession operates as a race while the accession on the other hand operates like a magnet. Based on this description, accession avoids conflicts resulted from the race situations as in the first of possession situations.
Cons of accession:
Although Merrill’s analysis has some pros, one might argue that it also has some cons, such as, unclarity, possible unpleasant economic ramifications, killing creativity, and finally it doesn’t answer the question of the first source of property in some cases.
Unpleasant economic ramifications:
Applying the principle of accession, may lead to unpleasant economic ramifications. It may make the rich richer and the poor poorer.  For example, in the case of Accretion, only the riparian landowner whose land is gradually augmented by alluvial formations owns the newly formed land but the person whose banks in not attached to the new land will not be able to own the new land. Similarly, the case of Adaptation rights and ad coelom, one might argue that only those who have closer relationship to the source of property deserve to own the new property while those who don’t have close relationship to the source of property don’t deserve to own the new property.
Secondly applying the principle of accession might lead in some cases to the killing of creativity. For example, in the case of patent improvements, according to Merrill, only those who owns patent can do improvements to the patents products. Following this approach might stop others from doing improvements to the existed products, which might kill productivity and creativity in the society. Furthermore, that might lead to the monopolization of products in the hands of their first makers.
Different times in his analysis, Merrill appeared unclear. For example, in regards of newborns, Merrill said that the newborn animal could be assigned to its first possessor but instead it should be assigned to the person who owns another resource that has a prominent connection to the new resource–the newborn’s mother. What he does not make clear is how the newborn could be granted to someone other than the owner of the mother under the principle of first possession! How would a person claim ownership over the newborn animal because he is the first possessor? Similarly in the examples of interest and Publicity, the application of the principle of accession seemed unclear. Maybe Merrill needed to provide clearer examples or he should have explained how the accession is a better source of ownership than the first of possession in the cases of interest and publicity.
Did Merrill analysis add to the understanding of property law?
The unclarity of Merrill’s analysis leads us to the answer of the second question; does the concept of accession, which Merrill here attempts to revive, usefully add to our understanding of property law? It seems that, in different areas in his analysis, Merrills’ claims seemed incontestable, which no reasonable person would disagree with him about it. So it makes me wonder why did he bother to write about it if it is very obvious! For example, who would argue that the author of copyrighted book should not have the exclusive right to prepare a screenplay for a movie based on that book?, that the owner of the mother of the newborn animal should not own the newborn?, that the owner of the trademark should not have power over any use of the mark having a close enough connection to the mark to affect its value as a mark? Or that the celebrity herself has control over her persona? Aren’t all these cases common sense that no reasonable person would argue against? In these examples it seems that Merrills is twisting the concept of accession to apply it in situations that really don’t prove the usefulness of the concept. Maybe he should have cited some case law or real problems occurred in the hypotheticals mentioned above, otherwise it seems unrealistic that someone would argue against the accession principle in these situations.
Merrill’s analysis could be persuasive in some areas of property law, such as Crops, Accretion, Commingled goods, Ad coelom, Fixtures, and Adaptation rights. But on the other hand it could be problematic, such as in its economical ramifications, discouraging creativity, and unclarity. Finally, although Merrill’s analysis seemed reasonable and sensible in some cases but it seemed in other cases unrealistic, unuseful and didn’t add to our understanding to the property law.
 Merrill, Thomas W. 2009. Accession and Original Ownership. Journal of Legal Analysis 1 (2):459–510.
 Hammond v. Central Kentucky, 75 S.W.2d 204, (1934)
 Elliff v. taxon drilling co., 210 s.w.2d 558 (Tex. 1948)
Principles of First Title: Merrill, Marx, and Musings on Supplanting First Possession with Accession, Ori Herstein, (june 2010) http://www.dorfonlaw.org/2010/06/principles-of-first-title-merrill-marx.html