NEON & HELIUM: Put Taber & Bartlett Briefs Face Down in Box on Front Table MUSIC: Ray Charles & Friends Genius Loves Company (Duets 2004) DOG = KATIE (15)

ANNOUNCEMENTS INFO MEMO #4 ONLINE Info on my midterm (coverage; format, etc.) Exam-taking tips Comments/Models for Albers & Kesler briefs PRE-MT OFFICE HOURS TOMORROW 2-6 pm BRIEFING ASSMTS Chlorine: Swift Brief due Wednesday Krypton: Ghen Brief due next Friday Shaw & Mullett briefs ready for pick-up Manning & Albers briefs ready soon

ANNOUNCEMENTS LUNCHES OCTOBER 30 WILL BE FINAL LUNCH AVAILABLE SLOTS POSTED ONLINE ME TO SIGN UP Questions on Midterm? on Wolverine Assignment?

HELIUM DQ57: Factual Differences between Albers and Kesler. Why Might They Matter? 1.Kesler caretakers still in pursuit when fox killed; distance shorter; prior escape & recapture (did last week).

HELIUM DQ57: Factual Differences between Albers and Kesler. Why Might They Matter? 1.Kesler caretakers still in pursuit when fox killed; distance shorter; prior escape & recapture (did last week). 2.Kesler finder/defendant is not expert.

HELIUM DQ57: Factual Differences between Albers and Kesler. Why Might They Matter? 1.Kesler caretakers still in pursuit when fox killed; distance shorter; prior escape & recapture (did last week). 2.Kesler finder/defendant is not expert. 3.Kesler fox has no tattoo.

HELIUM DQ57: Factual Differences between Albers and Kesler. Why Might They Matter? 1.Kesler caretakers still in pursuit when fox killed; distance shorter; prior escape & recapture (did last week). 2.Kesler finder/defendant is not expert. 3.Kesler fox has no tattoo. 4.Kesler takes place in Idaho, not Colorado.

HELIUM DQ58: Differences in Reasoning between Albers and Kesler. Albers assumes the finder would win under the rule in Mullett, so it carves out an exception to that rule. How does Kesler deal with the Mullett rule?

HELIUM DQ58: Differences in Reasoning between Albers and Kesler. 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….”

HELIUM DQ58: Differences in Reasoning between Albers and Kesler. Note what Kesler says about Albers: “Stephens & Co. v. Albers, a case squarely in point, supports the conclusion herein....” [i.e., NOT the reasoning.]

HELIUM DQ58: Differences in Reasoning between Albers and Kesler. 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

HELIUM DQ58: Differences in Reasoning between Albers and Kesler. Note quote from treatise (p.44): “But even where the inference that escaping wild beasts have animum revertendi could probably not be indulged in fairly, as 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.”

HELIUM DQ58: Differences in Reasoning between Albers and Kesler. “ … 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. Treatise Adopts MANNING Dicta

DQ56: SEVERABILITY OF PROPERTY RIGHTS Both Albers and Kesler treat the question of the right to kill the fox as independent of the question of who owns it. If the plaintiffs owned the foxes, why is it legally acceptable for a third party to kill them?

DQ56: SEVERABILITY OF PROPERTY RIGHTS Can have some rights w regard to an object without having all possible rights

DQ56: SEVERABILITY OF PROPERTY RIGHTS Can have some rights w regard to an object without having all possible rights Common Examples: –Landlord-Tenant –Ratione Soli –Items Affected by Necessity

DQ56: SEVERABILITY OF PROPERTY RIGHTS Can have some rights w regard to an object without having all possible rights Common Example: Necessity –Neighbor can cut down your trees to limit spread of fire

DQ56: SEVERABILITY OF PROPERTY RIGHTS Can have some rights w regard to an object without having all possible rights Common Example: Necessity –Neighbor can cut down your trees to limit spread of fire –You still own the cut wood.

DQ56: SEVERABILITY OF PROPERTY RIGHTS Here, court says it was OK for Dr. Jones to kill a fox owned by Kesler because he acted (for Mrs. White) as “a reasonably prudent person” would, “under reasonably apparent necessity, in the protection of his own property” (chickens).

DQ56: SEVERABILITY OF PROPERTY RIGHTS Kesler owns fox, but property rights limited to protect property of others Jones has right to kill fox, but no right to the carcass, which still belongs to Kesler Qs?

Kesler: Major Points Escaped wild animal not returned to natural liberty if closely pursued with good possibility of recapture (different approach than Albers)Escaped wild animal not returned to natural liberty if closely pursued with good possibility of recapture (different approach than Albers)

Kesler: Major Points Escaped wild animal not returned to natural liberty if closely pursued with good possibility of recapture (different approach than Albers)Escaped wild animal not returned to natural liberty if closely pursued with good possibility of recapture (different approach than Albers) Explicit relevance of pursuit, time, distanceExplicit relevance of pursuit, time, distance

Kesler: Major Points Escaped wild animal not returned to natural liberty if closely pursued with good possibility of recapture (different approach than Albers)Escaped wild animal not returned to natural liberty if closely pursued with good possibility of recapture (different approach than Albers) Explicit relevance of pursuit, time, distanceExplicit relevance of pursuit, time, distance Severability of Property RightsSeverability of Property Rights

Pierson and Kesler : First Possession v. Escape Same terms have different significance depending on context.

Pierson and Kesler : First Possession v. Escape Same terms have different significance depending on context: Pursuit Unowned Animal: Close pursuit insufficient to create ownership.Unowned Animal: Close pursuit insufficient to create ownership. Escaped Animal: Close pursuit may be sufficient to maintain ownership.Escaped Animal: Close pursuit may be sufficient to maintain ownership.

Pierson and Kesler : First Possession v. Escape Same terms have different significance depending on context: Natural Liberty Unowned Animal: Close pursuit insufficient to deprive animal of NLUnowned Animal: Close pursuit insufficient to deprive animal of NL Escaped Animal: Close pursuit may be sufficient to prevent animal from returning to NL.Escaped Animal: Close pursuit may be sufficient to prevent animal from returning to NL.

UNIT II: EXTENSION BY ANALOGY § A. WHALING CASES

INTRODUCTION TO WHALING Admiralty Actions in Federal Court –Alleged torts took place on navigable waters –Fed’l gov’t has exclusive juridiction over maritime commerce (need for uniformity) –D.Mass. = United States District Court for the District of Massachusetts

INTRODUCTION TO WHALING Admiralty Actions in Federal Court Ships v. Boats

INTRODUCTION TO WHALING Admiralty Actions in Federal Court Ships v. Boats Okhotsk Sea –Spelled differently in different cases

INTRODUCTION TO WHALING Admiralty Actions in Federal Court Ships v. Boats Okhotsk Sea –Spelled differently in different cases –Trip from New England (Around the Horn)

INTRODUCTION TO WHALING Admiralty Actions in Federal Court Ships v. Boats Okhotsk Sea Value of Whales: Oil, Whalebone, Meat, Ambergris

OXYGEN: Taber v. Jenny: Statement of the Case Taber, … ? Sued Jenny, … For [Theory] Seeking [Remedy]

OXYGEN: Taber v. Jenny: Statement of the Case Taber, presumably the owner of the Hillman, a ship whose crew killed a whale Sued Jenny, … ? For [Theory] Seeking [Remedy]

OXYGEN: Taber v. Jenny: Statement of the Case Taber, presumably the owner of the Hillman, a ship whose crew killed a whale Sued Jenny, presumably the owner of the Zone, a ship whose crew found and took the whale’s carcass For [Theory] … ? Seeking [Remedy]

OXYGEN: Taber v. Jenny: Statement of the Case Taber, presumably the owner of the Hillman, a ship whose crew killed a whale, sued Jenny, presumably the owner of the Zone, a ship whose crew found and took the whale’s carcass. Presumably For Conversion (See Bartlett) Seeking [Remedy] …?

OXYGEN: Taber v. Jenny: Statement of the Case Taber, presumably the owner of the Hillman, a ship whose crew killed a whale, sued Jenny, presumably the owner of the Zone, a ship whose crew found and took the whale’s carcass presumably for conversion Seeking Damages for the Value of the Whale.

Structure 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

Structure 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 1 st Ship Acquired Property Rights by Killing Whale (Kodak Moment)

Structure of Taber & Bartlett Basic facts of both cases: –1st Crew kills whale, marks, anchors, leaves –Whale found & taken by crew of 2d ship Crew of 1 st Ship Acquired Property Rights by Killing Whale Issue Like Escape Cases: Did Crew of 1 st Ship Lose Property Rights by Leaving Whale Behind?

Taber: Factual Disputes & Findings 1) Was whale anchored when found by ship Z? Yes. 2) Had whale dragged its anchor when found by ship Z? No, at least not "to any considerable distance." 3) Was there a custom in whaling industry that if an anchored whale dragged its anchor, ownership can be lost? No evidence of such a custom.

CUSTOM in Whaling Cases Existence and Scope of Custom is Question of Fact

CUSTOM in Whaling Cases Existence and Scope of Custom is Question of Fact Whether to Treat Custom as Legally Binding is Question of Law (Discussed in the other whaling cases)

KRYPTON DQ59: Taber under Mullett Abandonment? Natural Liberty? Animus Revertendi? Together?