1. ELEMENTS D2 & D1 POWER POINT SLIDES
Class #21 Wednesday, October 18, 2017 Thursday, October 19,

2. D2 Lunch Today (Very Last Lunch)
Music to Accompany Taber: “Romantic Russia” London Symphony Orchestra (recorded 1956, 1966) Music: Mid- to Late 19th Century
D2 Lunch Today (Very Last Lunch)
Meet on 12:05
Day * Fernández * Harder * Hochsztein
Marks * Mears * Mitrani

3. Kesler v. Jones (Uranium) DQ1.60: Factual Differences from Albers
Probably Less Significant Differences (from Prior Years)
Semi-Domesticated v. Not (Only Very Mild Help in Albers)
Level of Security Employed by OO (Doesn’t Seem Very Significant in Albers)
D was F in Kesler; Bought from F in Albers: (Might matter if Q of D being innocent purchaser, but not true in Albers)
Caretakers in possession rather than OO (not clear why this would affect result).

4. Differences Possibly Going to Value of Fox :
Kesler v. Jones (Not Shown in Class) DQ1.60: Factual Differences from Albers
Differences Possibly Going to Value of Fox :
Clever ideas, although I’m not sure value of individual fox would matter much (as opposed to average value or existence of industry).
Color:
Albers Fox = Black or Silver-Black.
Kesler Fox = “Cross-Bred.” Might be what Albers calls “Cross.”
Sex
Albers Fox = Male
Kesler Fox = Female. Maybe worth less b/c can’t mate with multiple males at same time. However, foxes tend to have only one mate (see Comparison Box #1), so may depend on breeding process used (natural v. artificial).

5. Kesler v. Jones (Uranium) DQ1.60: Factual Differences from Albers
Probably Most Significant Differences:
Help OO or F (and Why?)
Kesler caretakers still in pursuit when fox killed.
Probably shorter time & distance from escape to kill
Fox in Kesler had escaped once before & been recaptured.
Kesler finder/defendant is not expert.
No evidence Kesler fox has tattoo.

6. Kesler v. Jones (Uranium) DQ1.60: Factual Differences from Albers
Probably Most Significant Differences:
Help OO or F (and Why?)
Kesler caretakers still in pursuit when fox killed.
Probably shorter time & distance from escape to kill
Fox in Kesler had escaped once before & been recaptured.
Kesler finder/defendant is not expert.
No evidence Kesler fox has tattoo.
Kesler takes place in Idaho, not Colorado.
1927 v. 1931

7. Kesler v. Jones (Uranium) DQ1.61: Differences in Analysis from Albers
Albers 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?

8. Kesler v. Jones (R Uranium adium) DQ1
Kesler v. Jones (R Uranium adium) DQ1.61: 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….”

9. Kesler v. Jones (Uranium) DQ1.61: Differences in Analysis from Albers
Kesler says, “Albers, a case squarely in point, supports the conclusion herein ....” [i.e., NOT the reasoning.]

10. Kesler v. Jones (Uranium) DQ1.61: 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

11. Kesler v. Jones BRIEF: Uranium
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

12. Kesler v. Jones BRIEF: Uranium
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?

13. Kesler v. Jones BRIEF: Uranium
Sample Brief Will Include Broad/Narrow Holdings & Rationales

14. Kesler v. Jones: Note block quote from treatise (p.54):
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.”

15. Compare block quote (p.54) to Manning (p.40):
Kesler v. Jones
Compare block quote (p.54) 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.”

16. Manning and Mullett Factors Under Albers & Kesler
TAMING/
INVESTMT
Valuable Animal & Industry  Helps OO (Don’t Use Mullett Rule)
No Mention
MARKING
Marking & Other Forms of F’s Knowledge Help OO
TIME/
DISTANCE
Short Time & Distance
BUT No Mention
Short Time/Distance Help OO (Can Show No NL)
ABANDON-
MENT
Pursuit Seems to Help OO; Can Have Abandmt by Compulsion
Ongoing Pursuit Helps OO (Can Show No NL)
ANIMUS REV.
Individual Not Species
Prior Recapture (Relevant to NL not AR)
RETURN
TO NL
Court Assumes Yes; Not in List of Relevant Facts Under New Rule
No NL If Close Pursuit & Short Time/Distance

17. Kesler v. Jones BRIEF: Uranium
1st Issue (Unlawful Killing): Did trial court err in entering judgment for defendant [on unlawful killing claim] because …
Hard to be precise about relevant facts b/c
Court doesn’t say why Ps thought the killing was unreasonable
We aren’t studying defenses to intentional torts here, so don’t have other examples to look at.

18. Kesler v. Jones BRIEF: Uranium
1st Issue (Unlawful Killing): Pretty General Version
(E.g.:) Did trial court err in entering judgment for defendant [on unlawful killing claim] because a person has no right to kill a fox escaped from captivity when asked to help protect a neighbor’s chickens from the fox?
Probably helpful to also include some language about reasonableness.

19. Kesler v. Jones BRIEF: Uranium
1st Narrow Holding (Unlawful Killing):
(E.g.:) No, trial court did not err in entering judgment for defendant [on unlawful killing claim] because a person does have the right to kill a fox escaped from captivity when reasonably necessary to help protect a neighbor’s chickens from the fox.
QUESTIONS?

20. Kesler v. Jones (Uranium) DQ1.62: 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 both foxes, why was it legally acceptable for a 3d party to kill them?

21. Kesler v. Jones (Uranium) DQ1.62: Severability of Property Rights
Can have some rights with regard to an object without having all possible rights
Common Examples:
Landlord-Tenant
Ratione Soli

22. Kesler v. Jones (Uranium) DQ1.62: Severability of Property Rights
Can have some rights with regard to an object without having all possible rights
Your “right” not to have others destroy your property can be lost when your property endangers person or property of others.
Common Example: Necessity
Neighbor can cut down your trees to limit spread of fire

23. Kesler v. Jones (Uranium) DQ1.62: Severability of Property Rights
Can have some rights with regard to an object without having all possible rights
Common Example: Necessity
Neighbor can cut down your trees to limit spread of fire
BUT You still own the cut wood.

24. Kesler v. Jones (Uranium) DQ1.62: Severability of Property Rights
Here, court says 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 [or White’s] property” (chickens).

25. Kesler v. Jones (Uranium) DQ1.62: Severability of Property Rights
Here, court says 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).
Looks like standard defense to intentional tort for “defense of property.”
Could fold some of this language into issue/holding.

26. Kesler v. Jones (Uranium) DQ1.62: Severability of Property Rights
BOTTOM LINE
Property rights of fox owners limited to protect property of others (e.g., chickens)
Jones had right to kill fox, but ownership of carcass is separate issue, turning on whether fox was owned when shot.
Qs?

27. Kesler v. Jones : MAJOR POINTS
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, distance
Severability of Property Rights
QUESTIONS?

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

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

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

31. Logistics for Friday (Materials Posted on Course Page)
Logistics for Friday (Materials Posted on Course Page) * = Have Accessible in Class
Midterm Review
Copy of Midterm Question*
Grading Sheet for Midterm*
Comments & Student Answers from Prior Years
Info & Qs on GWA #2
2007 Exam Question (1st Possession)
Copy of Question*
Instructions for In-Class Arguments* (Krypton & Oxygen)

32. UNIT II: EXTENSION BY ANALOGY Part 1: WHALING CASES
QUESTIONS ON … ?:
Instructions for Briefing Trial Court Cases (60-61)
Intro to Whaling Cases (61-63)
Glossary (64)`

33. UNIT II: EXTENSION BY ANALOGY (WHALING CASES)
RADIUM :Taber v. Jenny Brief & DQ

34. Taber v. Jenny BRIEF (Radium): Statement of the Case
Identifying parties a little complicated in these cases. Initially looks like ship v. ship

35. Taber v. Jenny BRIEF (Radium): 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. 

36. Taber v. Jenny BRIEF (Radium): 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?
Who would get value of goods created from whale carcass?

37. Taber v. Jenny BRIEF (Radium): 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

38. Taber v. Jenny BRIEF (Radium): 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
See Bottom p.65: When the whale had been killed and taken possession of by the boat of the Hillman, it became the property of the owners of that ship….

39. Taber v. Jenny BRIEF (Radium): 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 …

40. Taber v. Jenny BRIEF (Radium): 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] ???

41. Taber v. Jenny BRIEF (Radium): 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?

42. Taber v. Jenny BRIEF (Radium): Statement of the Case
1st Sentence of Case:
“This is a libel to recover the value of a whale.”
In an admiralty action, the initiating pleading [until 1966], corresponding to the declaration, bill, or complaint in an ordinary civil action. (Glossary)
In an ordinary civil suit, libel = a tort (defamation in a written form).

43. Taber v. Jenny BRIEF (Radium): 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.

44. Taber v. Jenny BRIEF (Radium): Procedural Posture
Decision after a trial.
(See Briefing Instructions for Trial Court Cases)

45. E.g., Legal Framework of Taber & Bartlett
Basic Facts of Both Cases:
Crew of 1st ship kills whale, marks and anchors it, leaves
Whale carcass moves some, then found & taken by crew of 2d ship
Uncontested that Crew of 1st Ship Acquired Property Rights by Killing Whale (Kodak Moment)

46. 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?

47. Taber v. Jenny BRIEF (Radium): ISSUE
No procedural element because not an appeal (so no error by court below).

48. Taber v. Jenny BRIEF (Radium): ISSUE
Does killer of whale lose property rights when it leaves the body of the whale in the ocean where …. [facts]?
Most Important Facts
for This Purpose?

49. Taber v. Jenny BRIEF (Radium): 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? (in last paragraph)

50. Taber v. Jenny BRIEF (Radium): ISSUE
Parties/Case suggest several ways to resolve Legal Issue:
Law of Salvage (DQ2.04)
Whaling Customs (DQ2.02)
Common Law of Property

51. Taber v. Jenny BRIEF (Radium): ISSUE
Parties/Case suggest several ways to resolve:
Law of Salvage (DQ2.04)
Whaling Customs (DQ2.02)
Common Law of Property
Before we look at those:
Look at Factual Disputes/Findings to Clarify Details
Try Applying Escape Cases (DQ2.01)

52. Taber v. Jenny BRIEF (Radium): 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 & findings
Look for language suggesting parties disagreed or evidence conflicted
Look for language indicating court resolved dispute by accepting one version of facts (unresolved factual disputes likely irrelevant to legal analysis)

53. Taber v. Jenny BRIEF (Radium): 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
Distinguishing Factual from Legal Disputes
Facts occur out in world without reference to legal system (usually prior to filing of lawsuit)
Legal disputes address what legal consequences from given set of facts should be .

54. Taber v. Jenny BRIEF (Radium): 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.66)  [Dispute #1??? ]

55. Taber v. Jenny BRIEF (Radium): 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: ???

56. Taber v. Jenny BRIEF (Radium): 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.

57. Taber v. Jenny BRIEF (Radium): 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.66)  [Dispute #2???]

58. Taber v. Jenny BRIEF (Radium): 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: ???

59. Taber v. Jenny BRIEF (Radium): 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."

60. Taber v. Jenny BRIEF (Radium): 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. 66)  [Dispute #3???]

61. Taber v. Jenny BRIEF (Radium): 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: ???.

62. Taber v. Jenny BRIEF (Radium): 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.

63. DQ2.01: Taber under Mullett (Radium)

64. DQ2.01: Taber under Mullett (Radium):
Abandonment
Easy to Apply to Almost Any Kind of Property
Evidence of No Abandonment?

65. DQ2.01: Taber under Mullett (Radium)
Abandonment
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

66. DQ2.01: Taber under Mullett (Radium)
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”

67. DQ2.01: Taber under Mullett (Radium)
Natural 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

68. DQ2.01: Taber under Mullett (Radium)
Natural 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

69. DQ2.01: Taber under Mullett (Radium)
Intent to Return (AR)
Clearly Dead Whale Has No Intent at All
Note:
Escape Cases Don’t Use This to Mean Intent of OO to Return or to Get Property Back,
Can’t Really Use Evidence of 1st Crew’s Intent to Return
Can You Think of Something in This Scenario that Might Serve the Same Function as Animal’s Intent to Return?

70. DQ2.01: Taber under Mullett (Radium)
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”

71. DQ2.01: Taber under Mullett (Radium)
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
Maybe Anchoring Animal Serves Same Role; if so, they did here.

72. DQ2.01: Taber under Mullett (Radium)
Overall: If You Accept My Metaphors, Easy Case for OO Under Mullett
Lots of Evidence of No Abandonment
If NL = Adrift (a little stretch), It Isn’t
If AR = Anchored (a bigger stretch) , It Is