MUSIC: The Percussive Rhythm of (GEORGE HERBERT) WALKER Uranium Brief Coordinators: New Sign-Up Sheet on My Door Today After Class Krypton Brief Coordinators: Await Instructions All Lunches Postponed Until After Break; New Sign-up Sheet Circulated Next Week. Weasel Assignment Due Friday 10/4 @ 4pm

HEALTH UPDATE Deep Infection (& Little Toe !) Removed from My Foot Skin Graft Inserted & Wound-Vac Attached for Several Months Necessitates Walker or Wheelchair Thanks to All Who Sent Well Wishes by E-Mail or Via Marysabel!!

Weasel Assignment Questions I’ll Take Qs in Class Today & Next Thursday I’ll Take Qs By E-Mail or in Person until 3:30 pm on Wed 10/2 Q on What Adam Knew? Given that Adam had to empty the full traps & reset the traps where weasels escaped, more than reasonable to assume he was aware of relevant #s and time frames. OTHER QUESTIONS?

RECAP: Manning v. Mitcherson MANY VERSIONS OF HOLDING As with Pierson, exact scope of Manning holding necessarily unclear until Ga. S.Ct. clarifies. We’ll use other language from case to help determine best alternatives (DQ1.45 & 1.47). We’ll use squirrel hypothetical to see how different versions of holding might accomplish different results (DQ1.48) Today: Apply Manning factors. Tomorrow: Look at sample holdings for each side.

MINING the MEANING of MANNING Relevant Language (DQ1. 45 & DQ1 MINING the MEANING of MANNING Relevant Language (DQ1.45 & DQ1.47 & Rationales) including VOLUNTEERS from RADIUM & URANIUM

Mining Manning ‘s Meaning: DQ1.45 The law of Georgia is, that to have property in animals, birds and fishes which are wild by nature, one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them. (Top p.40) POSSIBLE SIGNIFICANCE TO COURT’S REASONING?

Mining Manning ‘s Meaning: DQ1.45 The law of Georgia is, that to have property in animals, birds and fishes which are wild by nature, one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them. Could simply go to 1st possession and mean that Mitcherson owned bird prior to escape. Could mean, “Once tamed, yours forever”, BUT structure of opinion suggests otherwise.

Mining Manning ‘s Meaning: Taming Enough? (p.40 2d para): …the bird in controversy was shown to have been tamed. It was also testified that …

Mining Manning ‘s Meaning: Taming Enough? …the bird … was … tamed. It was also testified that it had been in the possession of the plaintiff in the warrant about two years; that it knew its name, and when called by its owner, would answer the call; that it had left its cage on one occasion, and after having been gone a day or two returned; that on the 27th day of December, before the preceding new year's day, it was missing from its cage, and on the latter day it was received and taken possession of by the defendant …

Mining Manning ‘s Meaning: Taming Enough? …the bird … was … tamed. It was also testified that in the possession of the plaintiff about two years; knew & would answer to its name; prior escape & return; Caught and given to defendant 5 days after escape ¶ Under this evidence, there does not seem to be any question of sufficient possession and dominion over this bird, to create a property right in the plaintiff.

Mining Manning ‘s Meaning: DQ1.45 The law of Georgia is, that to have property in animals, birds and fishes which are wild by nature, one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them. Could mean, “Once tamed, yours forever”, BUT if holding is that simple, court probably would just say so and NOT list all the other evidence.

Mining Manning ‘s Meaning: DQ1.45 To have property in animals ferae naturae, “one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them.” Present tense suggests this is not a rule for when you acquire property rights, but a rule about how you maintain property rights in a living wild animal.

Mining Manning ‘s Meaning: DQ1.45 To have property in animals ferae naturae, “one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them.” Present tense suggests this is not a rule for when you acquire property rights, but a rule about how you maintain property lights in a living wild animal. As noted, D almost certainly argued that P lost her property rights because she no longer had the bird within her “actual possession, custody or control.”

Mining Manning ‘s Meaning: DQ1.45 To have property in animals ferae naturae, “one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them.” D must have argued that P lost her property rights because she no longer had the bird within her “actual possession, custody or control.” The Court rejected that argument: “Under this evidence, there does not seem to be any question of sufficient possession and dominion over this bird, to create a property right in the plaintiff.

Mining Manning ‘s Meaning: DQ1.45 & Possible Doctrinal Rationale To have property in animals ferae naturae, “one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them.” Defendant seems to have argued that P lost her property rights because she no longer had the bird within her “actual possession, custody or control.” However, the court held that the totality of the evidence here showed that she retained “sufficient possession and dominion over [the] bird” to still have property rights.

Mining Manning ‘s Meaning: DQ1.45: RADIUM The law of Georgia is, that to have property in animals, birds and fishes which are wild by nature, one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them. Interesting idea from Fall 2012 that OO retains ownership if sufficient evidence remains of taming, domesticating or confining. Could Finder here tell that bird had been tamed and/or confined?

Mining Manning ‘s Meaning: DQ1.47 To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. (p.40 last para.) For Sweet, probably not an accident! Court probably means owner did not deliberately allow bird to fly free.

Mining Manning ‘s Meaning: DQ1.47: RADIUM To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. Likely true here; if so, why relevant?

Mining Manning ‘s Meaning: DQ1.47: RADIUM To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. Possible Relevance of Street/Neighbor House: Only a short distance from point of escape? Not returned to natural habitat/liberty? (although court doesn’t use this language) Finders might be aware of prior claim OO might be able to recapture easily

Manning v. Mitcherson: Might add Distance to NARROW HOLDING: The original owner retains property rights in an escaped [animal ferae naturae] [that had distinctive crest][that responded to its name] [that had escaped and returned once before] [that had been owned for two years][that had been missing for only five days][that OO located day after it was found] [that only traveled a short distance after escape]

Mining Manning ‘s Meaning: DQ1.47: (p.40 last para.) To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. This is unsupported rhetoric. You need to do better when making your own arguments. (More Explanation = More Persuasive = More Points)

Mining Manning ‘s Meaning: RATIONALES & DQ1.47: (p.40 last para.) To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. WHY? URANIUMS: Used as basis for Policy Rationale? RADIUMS: OTHER IDEAS re MEANING

Mining Manning ‘s Meaning: DQ1.47: URANIUM/RADIUM To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. WHY? MAYBE: Unfair to OO; too close in time and distance to lose rights (protect emotional & material investment) MAYBE: Finder should know that there is prior OO, so shouldn’t keep it MAYBE BOTH PLAUSIBLE ADDITIONAL ARGUMENT: Court is concerned that OO not have to over-invest in confinement (Canary Alcatraz) to maintain ownership. Cf. Shaw (Certainty)

Mining Manning ‘s Meaning: DQ1.47 RADIUM (p.40 last para.) To hold that the traveling organist with his attendant monkey, if it should slip its collar, and go at will out of his immediate possession and control, and be captured by another person, that he would be the true owner and the organist lose all claim to it, is hardly to be expected; or 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. Again looks like short time/distance relevant.

Mining Manning ‘s Meaning: DQ1.47: RADIUM Animals Referenced in Last Paragraph: Wild Animals in a Menagerie (= Zoo) Organ Grinder’s Monkey Why These Animals?

Mining Manning ‘s Meaning: DQ1.47: RADIUM Why Animals Referenced in Last Paragraph: Wild Animals in a Menagerie (= Zoo) Organ Grinder’s Monkey MAYBE: Valuable (but canary much less $$$) MAYBE: F should know there’s prior owner NOTE: Menagerie animals again inconsistent with simply relying on “tamed”

Mining Manning ‘s Meaning: DQ1.47 & POSSIBLE POLICY RATIONALES Based in Labor/Investment The court stated that it would be unjust to allow the finder to keep a pet bird that escaped to the street. It compared the case to an escaped organ grinder’s monkey and to wild animals escaping from a menagerie. These analogies suggest that it might be trying to protect the original owner’s investment in training and purchasing the animal. This idea would support returning the canary to the plaintiff in this case. Can Do Similar Based in Notice to Finder (I’ll Add Slide)

Mining Manning ‘s Meaning: DQ1.47 & POSSIBLE POLICY RATIONALES Based in Notice to Finder The court stated that it would be unjust to allow the finder to keep a pet bird that escaped to the street. It compared the case to an escaped organ grinder’s monkey and to wild animals escaping from a menagerie. These analogies suggest that it might believe that the finders of all these animals ought to know that they have a prior owner, and so should return them. This idea would support returning the canary to the plaintiff in this case.

Introduction to Mullett v. Bradley CASE BRIEF: KRYPTON

Mullett v. Bradley BRIEF: KRYPTON Statement of the Case: Mullett … ??? sued Bradley … for [cause of action] seeking [remedy]

Mullett v. Bradley BRIEF: KRYPTON Statement of the Case: Mullett, original owner of an escaped sea lion, sued Bradley … ??? for [cause of action] seeking [remedy]

Mullett v. Bradley BRIEF: KRYPTON Statement of the Case: Mullett, OO of an escaped sea lion, sued Bradley, who purchased the animal from its finder for [cause of action] … ??? seeking [remedy]

Mullett v. Bradley BRIEF: KRYPTON Statement of the Case: Mullett, OO of an escaped sea lion, sued Bradley, who purchased the animal from F for conversion (1st sentence of case) seeking [remedy] … ???

Mullett v. Bradley BRIEF: KRYPTON Statement of the Case: Mullett, OO of an escaped sea lion, sued Bradley, who purchased the animal from F, for conversion seeking damages. (1st sentence of case)

Mullett v. Bradley BRIEF: KRYPTON Procedural Posture: The lower court dismissed the complaint. The plaintiff appealed. After a Trial or on a Dispositive Motion? How do you know?

Mullett v. Bradley BRIEF: KRYPTON Procedural Posture: The lower court dismissed the complaint after a trial. The plaintiff appealed. “The complaint was dismissed on the merits.” (Top p.43) Statements referring to evidence and proof, e.g., “The evidence not only fails to show that there was any animus revertendi on its part, but the inference from the facts proven is quite the contrary.” (Long para. mid-p.43)

Mullett v. Bradley BRIEF: KRYPTON Facts Relevant to Analysis: Court’s analysis makes no mention of capture, transport, blemishes, rejection by buyer, so we can start with … P placed sea lion he owned on island … What’s Next ?

Mullett v. Bradley BRIEF: KRYPTON Facts Relevant to Analysis: P placed sea lion he owned on island. Sea lion escaped. P made no effort to recapture it. Fisherman found sea lion 2 weeks later, 70+ miles from the island. Fisherman sold it to D. A year later, plaintiff recognized the sea lion and demanded its return. D refused. ADDITIONAL KEY FACT NOT FOUND IN FACT SECTION OF OPINION?

Mullett v. Bradley BRIEF: KRYPTON Facts Relevant to Analysis: Sea lions are native to Pacific Ocean; not found in the Atlantic. P placed sea lion he owned on island in Atlantic. Sea lion escaped. P made no effort to recapture it. Fisherman found sea lion in Atlantic 2 weeks later, 70+ miles from the island. Fisherman sold it to D. A year later, plaintiff recognized the sea lion and demanded its return. D refused.

Mullett v. Bradley “Fish-pound” is submerged net for catching fish (as in Shaw) Shaw refers to two pound-nets (as opposed to 2 lb. nets) Could call this (unnamed) sea lion “Thomas” b/c taking fish out of nets belonging to others.

Manning v. Mitcherson as Precedent Using Factors & Elements Generally Manning Applied OXYGEN: Application of Manning Factors to: Squirrel Hypothetical (Today) Facts of Mullett (Today) Facts of Albers (Next Week) DQ1.48 & Broad Holdings (Tomorrow)

Mining Manning ‘s Meaning: DQ1.48 OXYGEN (for Tomorrow) Task: Draft 2 Versions of the Holding Helpful to A/OO Helpful to B/F I’ll Go Thru a Few Examples from Prior Classes I’ll look at samples from Oxygens in office hours or in e- mails

Using Factors or Elements Crucial Set of Skills for Lawyering & for Exams We’ll Continue at Length Next Few Classes Again in DQs Throughout Unit Two Plus Torts, Criminal Law, etc.

Using Factors or Elements Assume Each There for Separate Reason For Each: Identify Kinds of Facts that Are Relevant Look for Explicit Definitions (none in Manning) Look for Explicit & Implicit Policy Justifications We did this some already for Factors from Manning; we’ll do for Mullett tomorrow.

Using Factors or Elements When Applying to New Facts Apply One at a Time, Then Look at Whole Picture If “Elements”, Each Has to Be Satisfied for P to Win If “Factors”, Consider Strengths & Weaknesses of All If significant arguments for both parties on any one, try to resolve with: Use of Definition (where available) Comparisons to Use of Factor/Element in Prior Cases Purpose of Factor/Element (Policy Justifications)