1. ELEMENTS D2 & D1 POWER POINT SLIDES
Class #16: Friday, October 6, 2017 National Mad Hatter Day National Noodles Day

2. MUSIC: BRAHMS Cello Sonatas (1862, 1886) Mstislav Rostropovich, Cello; Rudolph Serkin, Piano Recording: 1983
D1 Lunch Today
Meet on 12:30
Fernandez * Ranges
Rojas * Seale * Stekol
KRYPTON Written Albers Briefs Due 3:00 Tomorrow: Group Written Assignment #1 Due Tuesday 9pm

3. MINING the MEANING of MANNING (cont’d) Relevant Language (DQ1
MINING the MEANING of MANNING (cont’d) Relevant Language (DQ1.47 & Rationales) featuring ME, RADIUM & URANIUM

4. 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?

5. 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

6. Manning v. Mitcherson: Might add Distance to 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]

7. Mining Manning ‘s Meaning: DQ1.47: RADIUM (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?
This is unsupported rhetoric. You need to do better.
More explanation = More Persuasive = More Points

8. 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?
This is unsupported rhetoric. You need to do better.
More explanation = More Persuasive = More Points
URANIUMS: Used as basis for Policy Rationale?
RADIUMS: OTHER IDEAS re MEANING

9. 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.

10. 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.

11. 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.
WHAT IS A MENAGERIE?

12. 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?

13. 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”

14. 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)

15. 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.

16. Albers v. E.A. Stephens & Co.: Important Case (Most of Next Week)
Legal Analysis Most Complex We’ve Done
Colo. S.Ct. addressed lots of arguments rapidly w/o always articulating what it’s responding to
Look at short intro in materials  Treat as having two issues.
Read carefully
Take time to carefully brief & answer DQs & do Self-Quiz
Compare to Kesler v. Jones (similar facts but different reasoning)

17. Introduction to Mullett v. Bradley
CASE BRIEF: KRYPTON

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

19. 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]

20. 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]

21. 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] … ???

22. 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)

23. 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?

24. 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)

25. 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 ?

26. 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 FACT NOT FOUND IN FACT SECTION OF OPINION?

27. 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.

28. 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.

29. 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 (Write-Up Next Week)

30. Using Factors or Elements
Crucial Set of Skills for Lawyering & for Exams
We’ll Continue at Length Today & Next Week
Again in DQs Throughout Unit Two
Plus Torts, Adverse Possession, etc.

31. 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 later today
 Monday

32. 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)

33. Manning v. Mitcherson Factors Applied to …
DQ1.48:
Squirrel
Hypothetical
(OXYGEN)
DQ1.49:
Facts of
Mullett
(O2)

34. Manning v. Mitcherson Relevant Factors
Taming (or Other Investment in Animal)
Emotional Bond
Marking (or F Likely Aware of OO)
Short Time/Distance from Escape

35. Manning Factors: Taming (or other Investment) Emotional Bond
DQ1.48: Squirrel Hypo (OXYGEN)
Relevant Evidence
OO Labor to Capture, but No Purchase $$$
Responded to Name (Trained)
OO Owned for Three Months
No Prior Escape & Return
Comfort with Humans
More Helpful to Amy (OO) or Brandon (F)?

36. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Taming (or Other Investment in Animal)
Evidence Here?

37. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Taming (or Other Investment in Animal)
Evidence Here
No Evidence of Taming/Training
Probably Significant $$$ Investment (Cross-Country Travel)
Factor Help OO Under Manning?

38. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Taming (or Other Investment in Animal)
Evidence Here
No Evidence of Taming/Training
Probably Significant $$$ Investment
Factor Help OO Under Manning?
Not Tamed
Unclear How Much $$$ Investment Helps Under Manning (Maybe b/c of Menagerie Animals)

39. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Emotional Bond: No Evidence at All
“He stuck me on this stupid island and he doesn’t call, he doesn’t write ….”

40. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Related: Time of Ownership
Escape “a few days” after returned to OO Cf. Manning: Owned for 2 Years
Not Helpful to OO of Sea Lion
Little Additional Investment
No Emotional Bonding

41. Manning v. Mitcherson Relevant Factors Emotional Bond (Going Forward)
Rest of “escape” cases arise in commercial contexts (fur fox farming; whaling) where emotional bond is not very relevant.
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 when you can explain its relevance.

42. Manning v. Mitcherson Relevant Factors
Taming (or Other Investment in Animal)
Emotional Bond
Marking (or F Likely Aware of OO)
Short Time/Distance from Escape

43. Manning Factors: Marking (or F Likely Aware of OO)
DQ1.48: Squirrel Hypo (OXYGEN)
Relevant Evidence:
Recognizable from “Markings”
Enough Comfort with Humans to “Charm” F
More Helpful to Amy (OO) or Brandon (F)?

44. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Marking (or F Likely Aware of OO)
Evidence Here?

45. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Marking (or F Likely Aware of OO)
Evidence Here
“Blemishes” (Scarsides)
Maybe F Should Know b/c in Atlantic (Save for Discussion of Natural Liberty)
Blemishes as Marks Help OO Under Manning? (Can compare to crest.)
To Identify Animal?
As Notice to Finder of Prior OO?

46. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Marking = “Blemishes”
As I.D., Probably Better Than Crest
More Permanent
Others Unlikely to Have Exact Same
As Notice to Finder, Probably Weaker
Could Occur Naturally in Wild
Unless Scarring Pattern “Unnatural” (E.g., Imprint of Collar or Net)

47. Manning v. Mitcherson Relevant Factors
Taming (or Other Investment in Animal)
Emotional Bond
Marking (or F Likely Aware of OO)
Short Time/Distance from Escape

48. Manning Factors: Short Time or Distance from Escape
DQ1.48: Squirrel Hypo (OXYGEN)
Relevant Evidence:
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)?

49. Manning Factors: TOGETHER DQ1.48: Squirrel Hypo (OXYGEN)
Helpful to A/OO
Owned for 3 Months
Responds to Name
Comfortable w Humans
Identifying Markings
Helpful to B/F
Squirrel Travels “Across Town”
No Prior Return
2 Months Before Found
Markings Not Man-Made (apparently)

50. Mining Manning ‘s Meaning: DQ1
Mining Manning ‘s Meaning: DQ1.48 OXYGEN E-Participation Holding to Me by 8pm Tonight I’ll Take Qs at Break/After Class/by
For Amy:
Day, Kelsey
Hensch, Jake
Marks, Glenn
Ranges, Kristen
For Brandon:
Alvarez, Lauren
Fox, Taylor
Gonzalez, Jennifer
Paez, Jose

51. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Short Time/Distance from Escape
Evidence Here:
Captured by F ~2 Weeks After Escape
Captured by F 70 Miles from “Home”
OO discovers animal about 1 year later

52. ME DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Short Time/Distance from Escape
Captured ~2 Weeks/70 Miles from “Home”
Cf. Manning: 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 (cf. Seattle  S.Fran.)

53. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Short Time/Distance from Escape
Claimed by OO 1 Year After Found
Cf. Manning: 1 Day After Found
Significance?

54. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Short Time/Distance from Escape
Claimed by OO 1 Year After Found (v. 1 Day) Could Mean
Insufficient Pursuit by OO
Significant Investment by F
Helps F

55. DQ1.49: 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

56. DQ1.49: 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.

57. DQ1.50: KRYPTON Mullett v. Bradley
We’ll Now Examine the Three Factors that the Court adopts from the English Common Law

58. DQ1.50: Mullett Factors : KRYPTON
Abandonment: If Abandoned, to Finder
Intent to Return (Animus Revertendi/AR): If not abandoned & animal has AR, to OO
Return to Natural Liberty (NL): If no intent to return, and animal has returned to NL, to Finder