1. “Romantic Russia” London Symphony Orchestra (recorded 1956, 1966) Music: Mid- to Late 19 th Century Oxygen Brief #1: Available for Pick-Up Krypton Brief #1: We’ll E-Mail You PDF of Packet on Monday

2. Kesler v. Jones (Oxygen) DQ1.61: Factual Differences from Albers Identify Factual Differences Between Kesler and Albers & Discuss Possible Significance Start by Creating List of Differences

3. Kesler v. Jones (Oxygen) DQ1.61: Factual Differences from Albers Probably Less Significant Differences (from Prior Years) 1.Semi-Domesticated v. Not (Only Very Mild Help in Albers) 2.Level of Security Employed by OO (Doesn’t Seem Very Significant in Albers) 3.D was F in Kesler; Bought from F in Albers: (Might matter if Q of D being innocent purchaser, but not true in Albers) 4.Caretakers in possession rather than OO ( not clear why this would effect result)

4. Kesler v. Jones (Oxygen) DQ1.61: Factual Differences from Albers Probably Most Significant Differences 1.Kesler caretakers still in pursuit when fox killed. 2.Probably shorter time & distance from escape to kill 3.Fox in Kesler had escaped once before & been recaptured. 4.Kesler finder/defendant is not expert. 5.No evidence Kesler fox has tattoo. 6.Kesler takes place in Idaho, not Colorado.

5. Kesler v. Jones (Oxygen) DQ1.61: Factual Differences from Albers Help OO or F (and Why?) 1.Kesler c aretakers still in pursuit when fox killed. 2.Probably shorter time & distance from escape to kill 3.Fox in Kesler had escaped once before & been recaptured. 4.Kesler finder/defendant is not expert. 5.No evidence Kesler fox has tattoo. 6.Kesler takes place in Idaho, not Colorado.

6. Kesler v. Jones (Oxygen) DQ1.62: 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?

7. Kesler v. Jones (Oxygen) DQ1.62: 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….”

8. Kesler v. Jones (Oxygen) DQ1.62: Differences in Analysis from Albers Kesler says, “Albers, a case squarely in point, supports the conclusion herein....” [i.e., NOT the reasoning.]

9. Kesler v. Jones (Oxygen) DQ1.62: 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

10. Kesler v. Jones BRIEF: Oxygen 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

11. Kesler v. Jones BRIEF: Oxygen 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?

12. Kesler v. Jones (Oxygen) DQ1.62: Differences in Analysis from Albers Note block quote from treatise (p.53): 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.”

13. Kesler v. Jones (Oxygen) DQ1.62: Differences in Analysis from Albers Compare block quote (p.53) 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.”

14. 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) 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 Explicit relevance of pursuit, time, distance Severability of Property Rights Severability of Property RightsQUESTIONS?

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

16. 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. 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.

17. 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 Unowned 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.

18. UNIT II: EXTENSION BY ANALOGY (WHALING CASES)

19. KRYPTON Taber v. Jenny: KRYPTON(ITE) In-Class Brief & DQs 2.01-2.04 (Rest of Today)

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

21. Taber v. Jenny BRIEF: 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. 

22. Taber v. Jenny BRIEF: 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?

23. Taber v. Jenny BRIEF: 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

24. Taber v. Jenny BRIEF: 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 …

25. Taber v. Jenny BRIEF: 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] ???

26. Taber v. Jenny BRIEF: 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?

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

28. Taber v. Jenny BRIEF: 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.

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

30. Legal Framework 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 Exercise for You (if not turning in briefs): Trim facts of both cases to those that are relevant to analysis, as we did for Shaw.

31. 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 1 st Ship Acquired Property Rights by Killing Whale (Kodak Moment)

32. Legal Framework of Taber & Bartlett “Kodak Moment” (1913)

33. 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 1 st Ship Acquired Property Rights by Killing Whale Issue Like Escape Cases: Did 1 st Crew Lose Property Rights by Leaving Whale Behind?

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

35. Taber v. Jenny BRIEF: ISSUE Does killer of whale lose property rights when it leaves the body of the whale in the ocean where …. [facts]?

36. Taber v. Jenny BRIEF: 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?

37. Taber v. Jenny BRIEF: ISSUE Parties/Case suggest several ways to resolve issue: – Whaling Customs (DQ2.02) – Law of Salvage (DQ2.04) – Common Law of Property

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

39. Taber v. Jenny BRIEF: 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

40. Taber v. Jenny BRIEF: 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.62)

41. Taber v. Jenny BRIEF: 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.

42. Taber v. Jenny BRIEF: 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.62)

43. Taber v. Jenny BRIEF: 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."

44. Taber v. Jenny BRIEF: 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. 62)

45. Taber v. Jenny BRIEF: 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.

46. Taber v. Jenny BRIEF: Factual Disputes & Findings Questions on this Part of Brief? On to DQ2.01.

47. DQ2.01: Taber under Mullett

48. Abandonment Easy to Apply to Almost Any Kind of Property Evidence of No Abandonment?

49. DQ2.01: Taber under Mullett 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

50. DQ2.01: Taber under Mullett 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”

51. DQ2.01: Taber under Mullett 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

52. DQ2.01: Taber under Mullett 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

53. DQ2.01: Taber under Mullett Intent to Return Clearly Dead Whale Has No Intent at All Can You Think of Something in This Scenario that Might Serve the Same Function?

54. DQ2.01: Taber under Mullett 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”

55. DQ2.01: Taber under Mullett 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.

56. DQ2.01: Taber under Mullett Overall: If You Accept My Metaphors, Easy Case for OO Under Mullett Lots of Evidence of No Abandonment If NL = Adrift, It Isn’t If AR = Anchored, It Is

57. DQ2.01: Taber under Albers

58. DQ2.01: Taber under Albers: Marking Marking Evidence: – Anchor & Tow-Line – Waif (8-foot staff w flag at top) – 2 Irons (harpoons) How strong are marks?

59. DQ2.01: Taber under Albers Strength of Marking Evidence: – Anchor & Tow-Line – Waif (8-foot staff w flag at top) – 2 Irons (harpoons) w initials H.N.B. Very Clear Indication of an OO Man-Made & Specifically Identify OO

60. DQ2.01: Taber under Albers Strength of Marking “A whale not being the product of human care or labor, does not, of itself, purport [means?] to be property, and what would have been the right of the finders, if the captors had abandoned it without any marks of appropriation, need not now be considered.” (p.62 last sentence) Taber explicitly makes marks relevant.