1. Pictures at AN Exhibition Music (for Piano) by Modest Moussorsky (1874) Orchestration by Maurice Ravel (1922) Recording by Cleveland Orchestra (1979) Lorin Maazel, Conductor SECTION B2 Lunch Today; Meet on Bricks @ 12:05 Baros; DeLeon; Ford; Forman; Vaal

2. Pictures at AN Exhibition Music (for Piano) by Modest Moussorsky (1874) Orchestration by Maurice Ravel (1922) Recording by Cleveland Orchestra (1979) Lorin Maazel, Conductor Ravel Orchestration & Analogy to Albers

3. Mullett & Manning : DQ 50 Can you develop a rule for determining ownership of escaped animals that is consistent with both Manning & Mullett?

4. Mullett & Manning : DQ 50 ( Prior Student ) OO loses property rights in an escaped animal when the animal, without an intention to return, can provide for itself and is free to follow its natural inclinations. Essentially a restatement of Mullett rule, so consistent with Mullett. Consistent with Manning if you assume the canary could not have provided for itself.

5. Mullett & Manning : DQ 50 ( Bianchi Fasani ) OO loses property rights in an escaped animal when the animal 1.has no intent to return; 2.is in its state of natural liberty; and 3.does not show a connection with the OO through physical marks or taming.

6. Mullett & Manning : DQ 50 ( Bianchi Fasani ) OO loses property rights in an escaped animal when the animal has no intent to return; is in its state of natural liberty; and does not show a connection with the OO through physical marks or taming. CLEVER – Adds to the Mullett factors two factors from Manning that clearly distinguish the two cases – Would mean that animals that otherwise would go to F under Mullett stay with OO if tamed or marked.

7. Mullett & Manning : DQ 50 ( Fayne ) OO loses property rights in an escaped animal when the OO shows intent to abandon the animal. Interesting Idea: Puts focus entirely on showing “intent to abandon” Looks like using Shaw rule for 1 st Possession as basis of escape rule

8. Mullett & Manning : DQ 50 ( Fayne ) “OO loses property rights in an escaped animal when the OO shows intent to abandon the animal.” Puts focus entirely on “intent to abandon” Use of “shows” might put emphasis on acts of OO rather than proof of subjective intent. Would need to resolve “abandonment” in favor of F in Mullett (which court did not do). Could argue that placing sea lion on island meets test.

9. Mullett & Manning : DQ 50 Can you develop a rule for determining ownership of escaped animals that is consistent with both Manning & Mullett? QUESTIONS???

10. LOGISTICS: CLASS #16 Briefs Due Sunday @ 4 pm: URANIUM BRIEF #1: Kesler (See IM9-13 for Form) RADIUM BRIEF #2: Taber – Use briefing form for trial court cases (54-55) – Helpful to read “Introduction to Whaling Cases” (55-57) & Glossary (58) – May be helpful to read Bartlett v. Budd as well – Can’t work with same partners again

11. LOGISTICS: CLASS #16 Info Memo #4 on Course Page Tomorrow Group Assignment #2 (I’ll Take Qs Mon/Tues) Pre-Midterm Information Comments & Model Answers for: – Group Assignment #1 – Manning & Mullett Briefs

12. Albers v. E.A. Stephens & Co.: BRIEF: OXYGEN Statement of the Case: Albers… ??? sued E.A. Stephens & Co, … for [cause of action] seeking [remedy]

13. Albers v. E.A. Stephens & Co.: BRIEF: OXYGEN Statement of the Case: Albers, [fox breeder and] OO of an escaped fox killed by a third party, [as opposed to Mullett where court didn’t seem to care that OO was in business] sued E.A. Stephens & Co, … ??? for [cause of action] seeking [remedy]

14. Albers v. E.A. Stephens & Co.: BRIEF: OXYGEN Statement of the Case: Albers, OO of an escaped fox killed by a third party, sued E.A. Stephens & Co, [fox breeder,] which purchased the pelt of the fox for [cause of action] ??? seeking [remedy]

15. Albers v. E.A. Stephens & Co.: BRIEF: OXYGEN Statement of the Case: Albers, OO of an escaped fox killed by a third party, sued E.A. Stephens & Co, which purchased the pelt of the fox presumably for conversion… seeking [remedy] ???

16. Albers v. E.A. Stephens & Co.: BRIEF: OXYGEN Statement of the Case: Albers, OO of an escaped fox killed by a third party, sued E.A. Stephens & Co, which purchased the pelt of the fox, presumably for conversion seeking … damages (the value of the pelt). Even though 2d trial was replevin for return of the pelt, describe initial lawsuit in Statement.

17. Albers v. E.A. Stephens & Co.: BRIEF: OXYGEN Procedural Posture: [After a trial, the court entered judgment for plaintiff for value of pelt. On appeal, the case was retried as a replevin action.] After a [second] trial, the court entered judgment for the plaintiff for return of the pelt or payment of its value. Defendant appealed. $$ amount of value of the pelt doesn’t seem relevant to analysis.

18. Albers v. E.A. Stephens & Co.: STORYLINE (Same as Kesler) 1.OO breeds foxes for fur/profit 2.Fox escapes; threatens local chickens 3.Fox killed to protect chickens 4.Killer either keeps fox pelt or sells to 3d party. 5.OO demands return of pelt What Do Prior Cases Say?

19. Applying Mullett & Manning to Albers DQ51: RADIUM MARIE CURIE: Discoverer of Radium

20. Applying Mullett to Albers DQ51: RADIUM (Factors) 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

21. Applying Mullett to Albers DQ51: RADIUM (Abandonment) Evidence re Abandonment Here Types of Evidence Relevant in Prior Discussions Value to OO Care in Confinement Pursuit

22. Applying Mullett to Albers DQ51: RADIUM (Abandonment) Evidence re Abandonment Here Types of Evidence Relevant in Prior Discussions Value to OO? Care in Confinement Pursuit

23. Applying Mullett to Albers DQ51: RADIUM (Abandonment) Evidence re Abandonment Here Types of Evidence Relevant in Prior Discussions Substantial Value to OO (Pelt + Breeding) Care in Confinement? Pursuit

24. Applying Mullett to Albers DQ51: RADIUM (Abandonment) Evidence re Abandonment Here Types of Evidence Relevant in Prior Discussions Substantial Value to OO (Pelt + Breeding) Substantial Care in Confinement – Investment in special enclosure – Got through “inner gate” + “outer fence” Pursuit?

25. Applying Mullett to Albers DQ51: RADIUM (Abandonment) Evidence re Abandonment Here Pursuit: – Followed Until Nightfall – Court: “Abandonment by Compulsion” GOOD ENOUGH???

26. Applying Mullett to Albers DQ51: RADIUM (Abandonment) Evidence re Abandonment Here Pursuit: Followed Until Nightfall Raises Issues re What OO Has to Do: – Should Abandoning Pursuit = “Abandonment”? – Is “Abandonment by Compulsion” OK? (cf. Mullett: Reasonable to Believe Pursuit Hopeless)

27. Applying Mullett to Albers DQ51: RADIUM (Abandonment) Evidence re Abandonment Here Pursuit: Followed Until Nightfall Colorado Supreme Court must believe not abandoned, or would give pelt to Dfdt.

28. Applying Mullett to Albers DQ51: RADIUM (Animus Revertendi) Evidence re AR Types of Evidence Relevant in Prior Discussions Blackstone: “Usual Custom of Returning” Mullett: Behavior of Animal Evidence Here?

29. Applying Mullett to Albers DQ51: RADIUM (Animus Revertendi) Evidence re AR “Usual Custom of Returning”: None Mullett: Behavior of Animal Escaped w/in two weeks from significant enclosure Had run six miles in about a day Strong Case for No AR

30. Applying Mullett to Albers DQ51: RADIUM (Animus Revertendi) Evidence re AR Note: Court says determine this for individual animal, not by species (p.45) Not binding on other states as to meaning of AR, but you can use to argue individual case.

31. Applying Mullett to Albers DQ51: RADIUM (Return to NL) Evidence Here re Return to NL? Silver-Black Foxes Not Native to Area. Significance for NL?

32. Applying Mullett to Albers DQ51: RADIUM (Return to NL) Evidence Here re Return to NL? Silver-Black Foxes Not Native to Area. Significance for NL? Not Dispositive if Court follows Mullett; Look to Definition

33. Applying Mullett to Albers DQ51: RADIUM (Return to NL) Mullett Definition (Reminder): 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.”

34. Applying Mullett to Albers DQ51: RADIUM (Return to NL) Evidence Here re Return to NL? Types of Evidence Relevant under Definition Condition of the Animal Similarity of Area to Natural Habitat (Food, Climate, etc.)

35. Applying Mullett to Albers DQ51: RADIUM (Return to NL) Evidence Here re Return to NL? Condition of the Animal : No evidence of problems, but not out very long. Similarity of Area to Natural Habitat: Not much re habitat of silver-black foxes, but language suggests other foxes are native.

36. Applying Mullett to Albers DQ51: RADIUM (Return to NL) Evidence Here re Return to NL? The Supreme Court of Colorado must have believed that the fox returned to natural liberty before it was killed and that therefore the D would win under Mullett. Otherwise, no reason to create exception to Mullett rule to protect P & industry.

37. Applying Mullett to Albers DQ51: RADIUM (Summary) Abandonment: By compulsion, which doesn’t count against OO AR: No Return to NL: Court must have thought “Yes” QUESTIONS?

38. Applying Manning Factors to Albers DQ51: RADIUM (1) TAMING (or other investment) (2) MARKING (or other notice to F) (3) TIME & DISTANCE

39. Applying Manning to Albers DQ51: RADIUM (Taming) Evidence re Taming Here? Fox took food from keeper’s hand Big Deal? How Does Court Describe?

40. Applying Manning to Albers DQ51: RADIUM (Taming) Evidence re Taming Here? Fox took food from keeper’s hand Court: “Semi-Domesticated” (= Trained Enough to Drive a Tractor-Trailer?) Enough?

41. Applying Manning to Albers DQ51: RADIUM (Taming) Evidence re Taming Here? Took food from keeper’s hand. Enough? If unsure, check for purposes behind rule Taming shows labor and emotional bond. Purposes furthered here?

42. Applying Manning to Albers DQ51: RADIUM (Taming) Evidence re Taming Here? Pretty weak on purposes  weak case for taming. As with Mullett, could say even if animal not tamed, should protect $$$ investment.

43. Applying Manning to Albers DQ51: RADIUM (Marking/Notice to F’) Evidence re Marking: Tattoos in Ears How Strong are Marks?

44. Applying Manning to Albers DQ51: RADIUM (Marking/Notice to F’) Marking: Tattoos in Ears: How Strong??  335 = Clearly Man-Made (Maybe Not 1)  Unlikely to Disappear  Identifies Owner  Industry Practice  Maybe Hard for Non-Expert to Find? (Check Size)

45. Applying Manning to Albers DQ51: RADIUM (Marking/Notice to F’) Marking/Notice to Finder Tattoos in Ears = Quite Strong Marking Other Facts Giving Notice to Finder?

46. Applying Manning to Albers DQ51: RADIUM (Marking/Notice to F’) Marking/Notice to Finder Tattoos in Ears = Quite Strong Marking Other Facts Giving Notice to Finder?  Type of Fox Unknown in Area  Industry Well-Known in Area

47. Applying Manning to Albers DQ51: RADIUM (Marking/Notice to F’) Significance of Marking Under Mullett-Blackstone Rule Blackstone, quoted in Albers p.45: “[I]f a deer, or any wild animal reclaimed, hath a collar or other mark put upon him, and goes and returns at his pleasure;... the owner's property in him still continues … but otherwise, if the deer has been long absent without returning.” – “and” seems to say mark only matters if intent to return – Last phrase seems to make time relevant as well.

48. Applying Manning to Albers DQ51: RADIUM (Time/Distance’) Significance of Evidence re Time/Distance? Animal Owned Two Weeks Before Escape Animal Ran Six Miles Before Being Killed Animal Killed One Day After Escape Unknown Time Before OO Claimed Pelt (Not Very Long): Escape is Jan/Feb 1926 Colo SCt Opinion is 1927 (after 2 trials & oral argument)

49. Applying Manning to Albers DQ51: RADIUM (Summary) TAMING/$$$: Weak re Taming; More $$$ than Manning MARKING/NOTICE: Very strong; better than Manning TIME & DISTANCE Prior to Escape: Less than Manning After Escape: Similar to Manning Result under Manning?

50. Applying Manning to Albers DQ51: RADIUM (Summary) TAMING/$$$: Weak re Taming; More $$$ than Manning MARKING/NOTICE: Very strong; better than Manning TIME & DISTANCE Prior to Escape: Less than Manning After Escape: Similar to Manning Overall result unclear; might argue it’s like escaped menagerie animal b/c investment & good notice to F. If so, back to OO

51. Applying Manning to Albers DQ51: RADIUM (Summary) TAMING/$$$: Weak re Taming; More $$$ than Manning MARKING/NOTICE: Very strong; better than Manning TIME & DISTANCE Prior to Escape: Less than Manning After Escape: Similar to Manning Questions on Applying Manning?