“romantic russia” london symphony orchestra (recorded 1956, 1966) music: mid- to late 19 th...

““Romantic Russia” Romantic Russia” London Symphony Orchestra London Symphony Orchestra

(recorded 1956, 1966)(recorded 1956, 1966)Music: Mid- to Late 19Music: Mid- to Late 19thth Century Century

Oxygen Brief #1:Available for Pick-Up

Krypton Brief #1:We’ll E-Mail You PDF of

Packet on Monday

Kesler v. Jones (Oxygen) DQ1.61: Factual Differences

from Albers• Identify Factual Differences Between Kesler and

Albers & Discuss Possible Significance

Start by Creating List of Differences


from AlbersProbably Less Significant Differences (from Prior Years)

1.Semi-Domesticated v. Not (Only Very Mild Help in Albers)

2.Level of Security Employed by OO (Doesn’t Seem Very Significant in Albers)

3.D was F in Kesler; Bought from F in Albers: (Might matter if Q of D being innocent purchaser, but not true in Albers)

4.Caretakers in possession rather than OO (not clear why this would effect result)


from AlbersProbably Most Significant Differences

1.Kesler caretakers still in pursuit when fox killed.

2.Probably shorter time & distance from escape to kill

3.Fox in Kesler had escaped once before & been recaptured.

4.Kesler finder/defendant is not expert.

5.No evidence Kesler fox has tattoo.

6.Kesler takes place in Idaho, not Colorado.


from AlbersHelp OO or F (and Why?)

1.Kesler caretakers still in pursuit when fox killed.

2.Probably shorter time & distance from escape to kill

3.Fox in Kesler had escaped once before & been recaptured.

4.Kesler finder/defendant is not expert.

5.No evidence Kesler fox has tattoo.

6.Kesler takes place in Idaho, not Colorado.

Kesler v. Jones (Oxygen) DQ1.62: Differences in Analysis

from AlbersAlbers assumes F would win under the rule in Mullett, so it carves out an exception to that

rule for valuable wild animals.

How does Kesler deal with the Mullett rule?


from Albers

Kesler holds that the fox never returned to natural liberty because she …

“had formerly escaped and been recaptured; she had been out of her pen but a short time;

her owners were in pursuit [and] she was killed but a short distance from her pen….”


from Albers

Kesler says, “Albers, a case squarely in point, supports the conclusion herein ....”

[i.e., NOT the reasoning.]


from Albers

Albers: Returns pelt to OO by rejecting Mullett rule & creating new rule for

valuable animals v.

Kesler: Returns pelt to OO by applying Mullett rule

Kesler v. Jones BRIEF: Oxygen

2d Issue (Escape/Unlawful Retention):

Did trial court err in entering judgment for

defendant because … ???

Helpful to frame in terms of what constitutes return to NL

Kesler v. Jones BRIEF: Oxygen

2d Issue (Escape/Unlawful Retention):

• Did trial court err in entering judgment for defendant because the original owner of a escaped fox with no intention of returning retains property rights because the fox had not returned to natural liberty, where– it had escaped and been recaptured before, – it was killed a short time and distance from its escape,

and – its owners were still pursuing it when it was killed?

Kesler v. Jones (Oxygen) DQ1.62: Differences in Analysis from

AlbersNote block quote from treatise (p.53):

Even without AR, “where the wild animals of a menagerie escape from their owner's immediate possession, it is hardly to be expected that the courts would hold that they would therefore belong to the first person who should subject them to his dominion.”

Kesler v. Jones (Oxygen) DQ1.62: Differences in Analysis from

AlbersCompare block quote (p.53) to Manning

(p.40): Even without AR, “where the wild animals of a menagerie escape from their owner's immediate possession, it is hardly to be expected that the courts would hold that they would therefore belong to the first person who should subject them to his dominion.” v. It “is hardly to be expected … that the wild animals of a menagerie, should they escape from their owner's immediate possession, would belong to the first person who should subject them to his dominion.”

Kesler v. Jones : MAJOR POINTS

• Escaped wild animal Escaped wild animal not returned to natural not returned to natural libertyliberty if closely pursued with good possibility if closely pursued with good possibility of recapture (different approach than of recapture (different approach than AlbersAlbers))• Explicit relevance of pursuit, time, distanceExplicit relevance of pursuit, time, distance• Severability of Property RightsSeverability of Property Rights

QUESTIONS?QUESTIONS?

Pierson and Kesler : First Possession v. Escape

• Same terms can have different significance Same terms can have different significance depending on context.depending on context.


Same terms can have different significance Same terms can have different significance depending on context: depending on context: PursuitPursuit• Unowned AnimalUnowned Animal: Close pursuit : Close pursuit insufficientinsufficient to to

createcreate ownership. ownership.• Escaped AnimalEscaped Animal: Close pursuit : Close pursuit may be may be

sufficientsufficient to to maintainmaintain ownership. ownership.


Same terms can have different significance Same terms can have different significance depending on context: depending on context: Natural LibertyNatural Liberty• Unowned AnimalUnowned Animal: Close pursuit : Close pursuit insufficientinsufficient to to

deprive deprive animal of NLanimal of NL• Escaped AnimalEscaped Animal: Close pursuit : Close pursuit may be may be

sufficientsufficient to to prevent prevent animal from animal from returningreturning to to NL.NL.

UNIT II: EXTENSION BY ANALOGY (WHALING CASES)

Taber v. Jenny: KRYPTONKRYPTON(ITE)In-Class Brief & DQs 2.01-2.04 (Rest of Today)

Taber v. Jenny BRIEF: Statement of the Case

Identifying parties a little complicated in these cases.

Initially looks like ship v. ship:


• Hillman killed and anchored a whale• Zone found and took the whale

BUT a ship is an inanimate object that can’t really do these things.


• Hillman, a ship whose crew killed and anchored a whale• Zone, a ship whose crew found and took

the whale

So who are Taber and Jenny?


Who are Taber and Jenny?•Who would get value of goods created from whale carcass?– Not Crew: paid in wages, room & board–Might be Ship Captains, but probably salaried.

Also case gives their names as Cook and Parker


Taber, presumably the owner of Hillman, a ship whose crew killed and anchored a whale sued Jenny, presumably the owner of Zone, a ship whose crew found and took the whale ….

But court refers to libellants & respondents in the plural, so …


Taber and others, presumably the owners of Hillman, a ship whose crew killed and anchored a whale sued Jenny and others, presumably the owners of Zone, a ship whose crew found and took the whale ….

•for [cause of action]???•Seeking [remedy] ???


1st Sentence of Case: “This is a libel to recover the value of a whale.”

What does “libel” mean in this context?


1st Sentence of Case: “This is a libel to recover the value of a whale.”•The initiating pleading in an admiralty action [until 1966], corresponding to the declaration, bill, or complaint in an ordinary civil action. (Glossary)•In context of an ordinary civil suit, libel = a tort (defamation in a written form).


Taber and others, presumably the owners of Hillman, a ship whose crew killed and anchored a whale sued Jenny and others, presumably the owners of Zone, a ship whose crew found and took the whale ….

Presumably for conversion (see Bartlett) (not libel!!)•Seeking damages for the value of the whale.

Taber v. Jenny BRIEF: Procedural Posture

Decision after a trial.(See Briefing Instructions for Trial

Court Cases)

Legal Framework of Taber & Bartlett

Basic Facts of Both Cases: •Crew of 1st ship kills whale, marks and anchors it, leaves •Whale found & taken by crew of 2d ship•Exercise for You (if not turning in briefs): Trim facts of both cases to those that are relevant to analysis, as we did for Shaw.


• Basic facts of both cases: – 1st Crew kills whale, marks, anchors, leaves – Whale found & taken by crew of 2d ship

• Uncontested that Crew of 1st Ship Acquired Property Rights by Killing Whale (Kodak Moment)


“Kodak Moment” (1913)


• Basic facts of both cases: – 1st Crew kills whale, marks, anchors, leaves – Whale found & taken by crew of 2d ship

• Uncontested that Crew of 1st Ship Acquired Property Rights by Killing Whale

• Issue Like Escape Cases: Did 1st Crew Lose Property Rights by Leaving Whale Behind?

Taber v. Jenny BRIEF: ISSUE

• No procedural element because not an appeal (so no error by court below).


• Does killer of whale lose property rights when it leaves the body of the whale in the ocean where …. [facts]?


• Does killer of whale lose property rights when it leaves the body of the whale in the ocean where …. [for example]– killer anchors whale leaving marks

indicating killer’s identity– killer returns as soon as practicable to

collect whale – finder of whale sees identifying marks

and knows whale is less than 12 hours dead?


Parties/Case suggest several ways to resolve issue: –Whaling Customs (DQ2.02)–Law of Salvage (DQ2.04)–Common Law of Property


• Parties/Case suggest several ways to resolve: – Whaling Customs (DQ2.02)– Law of Salvage (DQ2.04)– Common Law of Property

• Before we look at those:– Look at Factual Disputes/Findings to

Clarify Details– Try Applying Escape Cases (DQ2.01)

Taber v. Jenny BRIEF: Factual Disputes & Findings

• New Section of Brief for Trial Court Cases

• In case without jury, Trial Judge responsible for making “findings” resolving factual disputes between the parties

• Read carefully to identify disputes


Zone relied on a custom that applied to whales that are found adrift. “But, from the evidence, it does not appear that this whale was found adrift. On the contrary, I am satisfied that it was anchored when taken by the boat of the Zone.” (top p.62)


“from the evidence, it does not appear that this whale was found adrift. On the contrary, I am satisfied that it was anchored when taken by the boat of the Zone.”

•Dispute #1: Was whale anchored when found by ship Z? •Finding #1: Yes.


“Whether it was found in the place where it had been left by the captors, or had dragged the anchor [MEANS?], and if it had dragged, how far, is left in some uncertainty. I do not think it is shown to have dragged, certainly not to any considerable distance….” (top p.62)


“Whether it … had dragged the anchor, and if it had dragged, how far, is left in some uncertainty. I do not think it is shown to have dragged, certainly not to any considerable distance….”

•Dispute #2: Had whale dragged its anchor when found by ship Z? •Finding #2: No, at least not "to any considerable distance."


“I do not think [the whale] is shown to have dragged [its anchor], certainly not to any considerable distance, and if it had, there is no proof of usage embracing such a case.” (top p. 62)


“I do not think [the whale] is shown to have dragged [its anchor], … and if it had, there is no proof of usage embracing such a case.” •Dispute #3: Was there a custom [= usage] in whaling industry that if an anchored whale dragged its anchor, ownership can be lost? •Finding #3: No evidence of such a custom.


Questions on this Part of Brief?

On to DQ2.01.

DQ2.01: Taber under Mullett

DQ2.01: Taber under MullettAbandonment

•Easy to Apply to Almost Any Kind of Property•Evidence of No Abandonment?

DQ2.01: Taber under MullettAbandonment

•Easy to Apply to Almost Any Kind of Property•Lots of Evidence of No Abandonment:– Value of Whale– Anchored & Marked– Left Due to Fog: Returned as Soon as

Could– Search/Pursuit When Missing


Natural Liberty•What might you call the “natural liberty” of a dead whale? (from last time)– “free from artificial restraint”– “free to follow the bent of its natural

inclination”

DQ2.01: Taber under MullettNatural Liberty

•What might you call the “natural liberty” of a dead whale?– “free from artificial restraint”– “free to follow the bent of natural inclination”

•MAYBE: A dead whale adrift = NL

DQ2.01: Taber under MullettNatural Liberty

•Maybe a dead whale adrift = NL– Would float with current – Whale out of control of OO & hard to find– Could be there naturally– F might have trouble locating OO

•If NL means “adrift”, no NL here


Intent to Return•Clearly Dead Whale Has No Intent at All•Can You Think of Something in This Scenario that Might Serve the Same Function?


Intent to Return•Can You Think of Something in This Scenario that Might Serve the Same Function?•Try This Characterization of AR: “Labor by OO Enabling OO to Safely Allow Animal Out of Her Immediate Control”

DQ2.01: Taber under MullettIntent to Return

•Can You Think of Something in This Scenario that Might Serve the Same Function?•Try This Characterization of AR: Labor by OO Enabling OO to Safely Allow Animal Out of Her Immediate Control

•Maybe Anchoring Animal Serves Same Role; if so, they did here.


Overall: If You Accept My Metaphors, Easy Case for OO Under Mullett

•Lots of Evidence of No Abandonment•If NL = Adrift, It Isn’t•If AR = Anchored, It Is

DQ2.01: Taber under Albers

DQ2.01: Taber under Albers: MarkingMarking

•Evidence:– Anchor & Tow-Line– Waif (8-foot staff w flag at top)– 2 Irons (harpoons)

•How strong are marks?

DQ2.01: Taber under AlbersStrength of Marking

•Evidence:– Anchor & Tow-Line– Waif (8-foot staff w flag at top)– 2 Irons (harpoons) w initials H.N.B.

•Very Clear Indication of an OO•Man-Made & Specifically Identify OO

DQ2.01: Taber under AlbersStrength of Marking

•“A whale not being the product of human care or labor, does not, of itself, purport [means?] to be property, and what would have been the right of the finders, if the captors had abandoned it without any marks of appropriation, need not now be considered.” (p.62 last sentence)

Taber explicitly makes marks relevant.

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