MUSIC: Gilbert & Sullivan PIRATES OF PENZANCE (1879) Welsh National Opera Charles Mackerras, Conductor Recording: 1993

OXYGEN DQ 46: Applying Manning ‘ s Factors to Facts of Mullett Taming (or Other Investment in Animal) Marking (or F Likely Aware of OO) Emotional Bond Short Time/Distance from Escape

OXYGEN DQ 46: Applying Manning ‘ s Factors to Facts of Mullett Taming (or Other Investment in Animal) No Evidence of Taming/Training Probably Significant $$$ Investment; Might be Important under Manning See Reference to Menagerie Animals No Evidence of Emotional Bond

OXYGEN DQ 46: Applying Manning ‘ s Factors to Facts of Mullett Marking = “Blemishes” As I.D., Probably Better Than Crest More Permanent Others Unlikely to Have Same As Notice to Finder, Probably Weaker Could Occur Naturally in Wild Unless Scarring Pattern “Unnatural” (E.g., Imprint of Collar or Net

OXYGEN DQ 46: Applying Manning ‘ s Factors to Facts of Mullett Short Time/Distance from Escape 1.Escape “a few days” after OO regained it Cf. Manning: Owned for 2 Years Not Helpful to OO of Sea Lion – Little Additional Investment – No Emotional Bonding

OXYGEN DQ 46: Applying Manning ‘ s Factors to Facts of Mullett Short Time/Distance from Escape 2. Captured ~2 Weeks/70 Miles from “Home” Cf. Manning: 5 days/Nearby in Same Town Significance?

OXYGEN DQ 46: Applying Manning ‘ s Factors to Facts of Mullett Short Time/Distance from Escape 2. Captured ~2 Weeks/70 Miles from “Home” (v. 5 days/Nearby in Same Town) Longer Time & Distance Might Mean: – Less Training or Likelihood of Return – OO Less Likely to Recover – Animal More Likely to Have Returned to Wild BUT: 70 Miles for Sea Lion Probably Much Less Than for Canary

OXYGEN DQ 46: Applying Manning ‘ s Factors to Facts of Mullett Short Time/Distance from Escape 3. Claimed by OO 1 Year After Found Cf. Manning: 1 Day After Found Significance?

OXYGEN DQ 46: Applying Manning ‘ s Factors to Facts of Mullett Short Time/Distance from Escape 3. Claimed by OO 1 Year After Found (v. 1 Day) Could Mean Insufficient Pursuit by OO Significant Investment by F

OXYGEN DQ 45: Applying Manning ‘ s Factors to Facts of Mullett Short Time/Distance from Escape Evidence Here Escape “a few days” after OO regained animal Captured ~2 Weeks/70 Miles from “Home” OO discovers animal about 1 year later Factor Help OO Under Manning? All Worse than Facts in Manning, year to discover may suggest weak pursuit Maybe 70 miles not far for sea lion?

OXYGEN DQ 45: Applying Manning ‘ s Factors to Facts of Mullett Factors Together Taming: No Evidence (But Lot of $$$) Marking: Good I.D.; Not Strong re Notice Emotional Bond: No Evidence of Short Time/Distance from Escape: Worse than Manning, Especially Year to Discover

OXYGEN DQ 45: Applying Manning ‘ s Factors to Facts of Mullett Factors Together Taming: No Evidence of (though $$$) Marking: Good I.D.; Not Strong re Notice Emotional Bond: No Evidence of Short Time/Distance: Worse than Manning, Esp. Year Pretty weak case for OO under Manning unless court considers $$$ investment very important.

OXYGEN DQ 45: Articulating Manning Holding : Nature of the Exercise Lots of Ways to Articulate Manning Holding – Can Include or Exclude Particular Facts – Can Describe Facts More Specifically or More Generally Squirrel Hypo in DQ 45 designed to get you to – Play with the holding in the way that litigators do – Find one plausible version helpful to client’s position. Requested Work-Product is Simply a Version of Manning Holding (Helpful to Assigned Client)

OXYGEN DQ 45: Articulating Manning Holding : Nature of the Exercise Squirrel Hypo in DQ 45 designed to get you to – Play with the holding in the way that litigators do – Find one plausible version helpful to client’s position. Good Way to Start – Apply Manning Factors to Hypo – Determine strengths & weaknesses under Manning of your client’s position.

OXYGEN DQ 45: Articulating Manning Holding : Apply Manning Factors Taming (or Other Investment in Animal) Marking (or F Likely Aware of OO) Emotional Bond Short Time/Distance from Escape

OXYGEN DQ 45: Articulating Manning Holding : Apply Manning Factors Taming (or Other Investment in Animal) Emotional Bond Responded to Name (Trained) Comfort with Humans OO Owned for Three Months No Prior Escape & Return More Helpful to Amy (OO) or Brandon (F)?

OXYGEN DQ 45: Articulating Manning Holding : Apply Manning Factors Emotional Bond (Going Forward): Rest of “escape” cases arise in commercial contexts (fur fox farming; whaling) where emotional bond is not going on I’m not going to include emotional bond in applications of Manning in these contexts “Menagerie Animals” suggests not necessary for Manning You can bring it back for other problems we do to the extent you think it’s relevant.

OXYGEN DQ 45: Articulating Manning Holding : Apply Manning Factors Marking (or F Likely Aware of OO) Recognizable from “Markings” Comfort with Humans More Helpful to Amy (OO) or Brandon (F)?

OXYGEN DQ 45: Articulating Manning Holding : Apply Manning Factors Short Time/Distance from Escape Time: Escape to Find: Unclear Distance: Escape to Find: Across Town Time: Find to OO Claim: 2 Months More Helpful to Amy (OO) or Brandon (F)?

OXYGEN DQ 45: Articulating Manning Holding : Relevance of Facts Helpful to A Owned for 3 Months Responds to Name Comfortable w Humans* Identifying Markings Helpful to B Squirrel Travels “Across Town”* No Prior Return 2 Months Before Found* Markings Not Man-Made (apparently)*

OXYGEN DQ 45: Articulating Manning Holding : Nature of the Exercise Squirrel Hypo in DQ 45 designed to get you to – Play with the holding in the way that litigators do – Find a plausible version helpful to client’s position. Apply Manning Factors to Hypo; Determine Strengths & Weaknesses of Client’s Position. Try to craft holding that emphasizes strengths and minimizes weaknesses.

OXYGEN DQ 45: Articulating Manning Holding Sample for Amy (narrow version; includes almost all helpful facts): OO retains property rights in an escaped animal f.n. that was previously under the owner’s control, that responded to its name when called, that had distinctive markings, that had been missing for a short period of time and was located by the owner soon after [arguable].

OXYGEN DQ 45: Articulating Manning Holding Samples for Amy (broader versions; focuses on a few key facts): OO retains property rights in an escaped animal f.n. that is… (1)tamed to the extent that it knows its name and remembers its name after a significant period of time (2)tamed, trained to answer by name, and marked in such a way as to make identification straightforward –

OXYGEN DQ 45: Articulating Manning Holding Sample for Amy (a little too broad): OO retains property rights in an escaped animal f.n. if it accidentally escapes from their immediate possession and comes under the control of another person. Good idea to use language from case BUT: No limit on time and distance No reference to taming or marking Looks like OO always wins; case doesn’t say that.

OXYGEN DQ 45: Articulating Manning Holding Sample for Brandon (narrow version; includes almost all helpful facts): OO retains property rights in an escaped animal f.n.: that was previously owned for two years, that had escaped and returned before, that had been missing for only a few days, and that owner located day after it was found.

OXYGEN DQ 45: Articulating Manning Holding Sample for Brandon: (Focusing on Time as Key Element): OO retains property rights in an escaped animal f.n. that had been possessed by the OO prior to escape for an amount of time substantially greater than the amount of time the animal was at large and substantially greater than the amount of time that the animal was possessed by the finder.

OXYGEN DQ 45: Articulating Manning Holding Sample for Brandon: (ME: Conceding Taming) OO retains property rights in an escaped animal f.n. that was tamed had a distinctive man-made mark and was claimed shortly after escape

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 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.

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.41) 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.41)

Mullett v. Bradley BRIEF : KRYPTON Facts Relevant to Analysis: 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. ADDITIONAL 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 BRIEF : KRYPTON Before Doing Issue/Holding, We’ll Examine the Three Factors that the Court adopts from the English Common Law

DQ 47: Mullett Factors : KRYPTON 1.Abandonment: If Abandoned, to Finder 2.Intent to Return (Animus Revertendi/AR): If not abandoned & animal has AR, to OO 3.Return to Natural Liberty (NL): If no intent to return, and animal has returned to NL, to Finder

DQ 47: Mullett Factors : KRYPTON For Each Factor, We’ll: 1.Define & Discuss How to Prove 2.Discuss Why It Is Relevant to OO/F Disputes 3.Discuss Evidence & Outcome in Mullett 4.Discuss How It Would Apply to Facts of Manning (Next Class: DQ48 Uranium)

DQ 47: Mullett Factors : KRYPTON : ABANDONMENT Define & Discuss How to Prove No Definition in Case; Usually Means Intentionally Giving Up Property Rights in Something. Look for act by OO indicating intent to relinquish ownership. Negligence in caring for the animal or in maintaining possession is insufficient.

DQ 47: Mullett Factors : KRYPTON : ABANDONMENT Why Relevant to OO/F Disputes? Typically, we allow people to choose to give up property rights if they want to Maybe unfair to return to OO, esp. if F aware of act of abandonment or has invested in animal

DQ 47: Mullett Factors : KRYPTON : ABANDONMENT Evidence & Outcome in Mullett Evidence of Abandonment Here?

DQ 47: Mullett Factors : KRYPTON : ABANDONMENT Evidence & Outcome in Mullett Evidence of Abandonment Here? – Investment, but low commercial value – Left unenclosed on island – No pursuit (BUT court says reasonable to think hopeless) Outcome in Mullett?

DQ 47: Mullett Factors : KRYPTON : ABANDONMENT Evidence & Outcome in Mullett Outcome in Mullett? [C]ounsel for the defendant [suggested] that the animal had been abandoned by the plaintiffs …. It is, however, unnecessary to pass upon this, in view of the conclusion to which we have come that the plaintiff had lost his right of property in the sea lion [because] it had regained its natural liberty without any intention of returning. (Last para.)

DQ 47: Mullett Factors : KRYPTON : ANIMUS REVERTENDI ( AR ) Define & Discuss How to Prove Animus Revertendi is “Intent to Return” in Latin. In this context, means animal out of OO’s immediate control intended to return home How do you prove what goes on in mind of animal?

DQ 47: Mullett Factors : KRYPTON : ANIMUS REVERTENDI ( AR ) Define & Discuss How to Prove Animus Revertendi is “Intent to Return” Blackstone: Can “only” show by “usual custom of returning.” Why Relevant to OO/F Disputes?

DQ 47: Mullett Factors : KRYPTON : ANIMUS REVERTENDI ( AR ) Why Relevant to OO/F Disputes? Shows labor/training by OO Shows connection betw OO and animal Reasonable for OO to let loose Evidence in Mullett?

DQ 47: Mullett Factors : KRYPTON : ANIMUS REVERTENDI ( AR ) Evidence & Outcome in Mullett Evidence – No prior returns – Leaves soon after placed on island – Travels 70 miles in 2 weeks with no return Outcome?

DQ 47: Mullett Factors : KRYPTON : ANIMUS REVERTENDI ( AR ) Evidence & Outcome in Mullett Evidence – No prior returns – Leaves soon after placed on island – Travels 70 miles in 2 weeks with no return Outcome = No AR

DQ 47: Mullett Factors : KRYPTON : Return to NATURAL LIBERTY ( NL ) Court Defines NL: NL = “that which the animal formerly enjoyed, namely, to provide for itself, in the broadest sense which the phrase may be used.” Regained NL = “when, by its own volition, it has escaped from all artificial restraint and is free to follow the bent of its natural inclination.” How Would You Prove?