““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
Kesler v. Jones (Oxygen) DQ1.61: Factual 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)
Kesler v. Jones (Oxygen) DQ1.61: Factual Differences
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.
Kesler v. Jones (Oxygen) DQ1.61: Factual Differences
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?
Kesler v. Jones (Oxygen) DQ1.62: Differences in Analysis
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….”
Kesler v. Jones (Oxygen) DQ1.62: Differences in Analysis
from Albers
Kesler says, “Albers, a case squarely in point, supports the conclusion herein ....”
[i.e., NOT the reasoning.]
Kesler v. Jones (Oxygen) DQ1.62: Differences in Analysis
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.
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: 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.
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: 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:
Taber v. Jenny BRIEF: Statement of the Case
• 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.
Taber v. Jenny BRIEF: Statement of the Case
• 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?
Taber v. Jenny BRIEF: Statement of the Case
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 v. Jenny BRIEF: Statement of the Case
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 v. Jenny BRIEF: Statement of the Case
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] ???
Taber v. Jenny BRIEF: Statement of the Case
1st Sentence of Case: “This is a libel to recover the value of a whale.”
What does “libel” mean in this context?
Taber v. Jenny BRIEF: Statement of the Case
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 v. Jenny BRIEF: Statement of the Case
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.
Legal Framework of Taber & Bartlett
• 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)
Legal Framework of Taber & Bartlett
“Kodak Moment” (1913)
Legal Framework of Taber & Bartlett
• 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).
Taber v. Jenny BRIEF: ISSUE
• Does killer of whale lose property rights when it leaves the body of the whale in the ocean where …. [facts]?
Taber v. Jenny BRIEF: ISSUE
• 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?
Taber v. Jenny BRIEF: ISSUE
Parties/Case suggest several ways to resolve issue: –Whaling Customs (DQ2.02)–Law of Salvage (DQ2.04)–Common Law of Property
Taber v. Jenny BRIEF: ISSUE
• 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
Taber v. Jenny BRIEF: Factual Disputes & Findings
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)
Taber v. Jenny BRIEF: Factual Disputes & Findings
“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.
Taber v. Jenny BRIEF: Factual Disputes & Findings
“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)
Taber v. Jenny BRIEF: Factual Disputes & Findings
“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."
Taber v. Jenny BRIEF: Factual Disputes & Findings
“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)
Taber v. Jenny BRIEF: Factual Disputes & Findings
“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.
Taber v. Jenny BRIEF: Factual Disputes & Findings
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
DQ2.01: Taber under Mullett
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
DQ2.01: Taber under Mullett
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?
DQ2.01: Taber under Mullett
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.
DQ2.01: Taber under Mullett
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.