1. ELEMENTS B1 & B2 POWER POINT SLIDES
Class #25: Friday, October 21, 2016 Reptile Awareness Day

2. Music to Accompany Rose Excerpt: Paul Winter Canyon (1985)

3. INTRODUCTION TO OIL & GAS LAW: THE ANIMALS ANALOGY Westmoreland & Cambria Natural Gas Co. v. DeWitt (Penn. 1889)

4. Westmoreland: Master’s Analysis (Rejected by Penn. S.Ct.)
Gas is mineral like coal
If in ground, property rights go w possession of surface
Here, lease gave no right to possession of surface
W never extracted, so no property right in gas
Thus, no right to enjoin removal of gas
Because no property right to surface, W also can’t enjoin D from drilling
W’s only suit: Breach of Contract by B (Interference w W’s right to extract) & W’s Only Remedy = Damages

5. Westmoreland: Penn. S.Ct. Analysis
Oil/Gas/Water not like coal
Move around  Minerals ferae naturae
Initially, legal possession by surface owner (like ratione soli)
Right lost to one who lawfully captures “wild” mineral
Here, W captured gas with well that gave control
Even if B evicts W from surface, W owns gas
Thus, W can enjoin D from taking W’s gas.

6. Westmoreland: Possible Animal Analogies (Implicit)
1st Player (W) Gets Permission to Hunt Deer from Landowner (B)
W Catches Deer, Ties It to Tree (= Property under Pierson)
W Leaves for Lunch & B Refuses to Allow Return
B Resells Hunting Rights (Including Tied Deer) to 2d Player (D)
W Can Sue for Property in Deer, Not Just Breach of Contract to Hunt

7. Westmoreland: Possible Animal Analogies (Implicit)
1st Player (W) Gets Permission to Trap Fish in Private Lake from Landowner (B)
W Sets Up Workable Net
When Net Full, B Refuses to Allow W to Re-Enter & Claims Fish for Himself

8. Review: Westmoreland & DQ2.22
Under Westmoreland, if a pool of gas lies under two adjacent parcels of land and the owner of one parcel drills a well, how much of the joint pool is he entitled to take through his well?
How is this result related to the court’s description of gas as a mineral ferae naturae?

9. INTRODUCTION TO OIL & GAS LAW: THE ANIMALS ANALOGY Westmoreland & Cambria Natural Gas Co. v. DeWitt (Penn. 1889) QUESTIONS?

10. LOGISTICS: CLASS #25 Set-Up for Next Week
DQ2.19: Ghen “Bad” Brief & E-Participation (RADIUM)
DQ : 1st Possession of Oil & Gas: Animals Cases v. Alternatives
Review Problems 2B & 2C

11. Ghen v. Rich (Radium) : DQ2.19
“Bad Ghen Brief” on Course Page (Posted after Class w other Briefs and Self-Quizzes)
In the brief, try to identify as many substantive mistakes and questionable statements about the case as you can.
Don’t worry that their briefing form is different from ours.
Useful way to organize: Download copy of brief and list any mistakes under relevant headings.

12. “Bad Ghen Brief” on Course Page
Ghen v. Rich (Radium) : DQ2.19 E-Participation Due Tuesday 8pm B1: Cheney * Gordon * Pringle B2: Barth * Levine * Norris
“Bad Ghen Brief” on Course Page
In the brief, try to identify as many substantive mistakes and questionable statements about the case as you can.
Don’t worry that their briefing form is different from ours.
Work-Product: Annotated copy of brief, listing any mistakes under relevant headings.
directly to me using real names (No Pseudonyms!)

13. 1st Possession of Oil & Gas: Strength of Analogy (for Next Week)
DQ : Standard Approaches to Assessing Analogies
To Prepare, Work Through Technical Readings (88-94) to Get Sense of How Extraction Works
Common task for lawyers: need to acquire expertise in areas important to client.
Look for info related to arguments about strengths & weaknesses of rule fromWestmoreland .
DQ2.25 (Generally): Try to identify at least 3 alternatives, then identify pros & cons for each

14. 1st Possession of Oil & Gas: Strength of Analogy (for Next Week)
DQ2.25 (Generally): Try to identify at least 3 alternatives, then identify pros & cons for each
For 2.25 (In-Class; KRYPTON):
We’ll List of Several Alternatives
Then We’ll Do Pros & Cons Just Looking at:
Westmoreland (Rule of Capture) v.
Distribution of Profits Proportional to Surface Area (w Reasonable Fee to Drillers for Labor and Risks)
Assume Some Large Oil/Gas Fields Under Multiple Surface Lots
Think About, e.g., Ease of Operation, Incentives, Effects on Market, etc.

15. EXAM Q1 (CUSTOM): REVIEW PROBS 2B & 2C
XQ1: Dealing w Custom Generally
Only Address if Q Explicitly Identifies a Custom
Discuss Separately from 1st Possession/Escape
Two Sets of Issues
Does Activity Described in Q Fall Within Custom?
Sometimes Pretty Clear & Can Address Quickly
Sometimes Room for Lot of Discussion as in Rev. Prob. 2B
Should Court Treat Custom as Binding Law?
If I Put in a Custom, Always Room for Lot of Discussion

16. EXAM Q1 (CUSTOM): REVIEW PROBLEMS 2B & 2C
2B (Mon/Tue): Does Advertising/ Broadcast Custom Protecting MERE’s Ad Apply to
Cane-Ade’s Kerry Grinder Ad? (OXYGEN)
BB Doing the EG on the Internet? (KRYPTON)
2C (Wed/Thu): Should the Custom Be Treated as Law (Use Factors from Swift & Ghen)?
PRO: URANIUM
CON: RADIUM

17. EXAM Q1 (CUSTOM): REVIEW PROBLEM 2B (i) & (ii)
Custom in Question
There is a custom in the U.S. advertising and broadcasting industries that advertisements for ordinary commercial products and services cannot closely imitate, or use major components of, ads for charitable organizations.
Helpful to break it down into parts as you would a legal standard from a case or statute.

18. EXAM Q1 (CUSTOM): REVIEW PROBLEM 2B (i) & (ii)
Custom in Question (Sample Breakdown)
In the U.S. advertising and broadcasting industries
ads for ordinary commercial products and services
can’t
closely imitate; or
use major components of
ads for charitable organizations.
Then apply to problem like a legal standard.

19. MORE LOGISTICS: CLASS #25
Elective Options: Advice Riff on Friday Before You Register
Fajer Exam Workshops: Wed 11/2 & Tue 11/8 (12:30-1:50 Room E352)
Status of Grading/Posting: Your Responsibilities & Mine

20. Ghen v. Rich (continued) URANIUM: BRIEF & DQs 2.16, 2.18
Paul Gauguin, The Beach at Dieppe (1885)

21. Ghen v. Rich (Uranium) BRIEF: FACTS (Recap)
Custom on Cape Cod: If finback whale killed with marked lance, lance owner gets whale & finder gets small fee
Ghen killed finback whale using a marked lance.
The whale floated up and was found by 3d party, who sold it to Rich.
3d party and Rich “knew or might have known” that a professional whaler killed the whale.

22. Ghen v. Rich On These Facts Who Gets Whale? (Complex)
What would happen without custom?
Case doesn’t fit neatly into prior precedent.
Did Ghen ever get property rights at all? Killed, but no clear moment of possession and no pursuit.
Assuming Ghen owns at moment of death, does he lose property rights when carcass sinks?
Should custom apply as law?
DQ2.16: Let’s Look at Precedent We Have with URANIUM

23. Ghen v. Rich (Uranium): DQ2.16: Application of Prior Cases
Did Ghen ever get property rights at all under Shaw’s first possession analysis?
Brought whale “into his power and control”?
“[S]o maintain[ed] his control as to show that he does not intend to abandon [it] again to the world at large.”?

24. Ghen v. Rich (Uranium): DQ2.16: Application of Prior Cases
(b) Assuming Ghen owns at moment of death, does he lose property rights under the escaped animal analysis of Albers? Look at:
Marking/Finder’s Knowledge
Time/Distance
Abandonment/Pursuit
Labor/Industry

25. Ghen v. Rich (Uranium): DQ2.16: Application of Prior Cases
(b) Does Ghen lose property rights under the escaped animal analysis of Albers?
Marking/Finder’s Knowledge?

26. Ghen v. Rich (Uranium): DQ2.16: Application of Prior Cases
(b) Does Ghen lose property rights under the escaped animal analysis of Albers?
Marking/Finder’s Knowledge: Maybe a little Weaker than Albers b/c F not in industry & whales native to area (but see Prather point & Slide 39: maybe OK b/c outsiders can’t use product w/o expert help)
Time/Distance?
Kill to find: 3 days & 17 miles
Find to claim by killer: 3 days
Helpful to …? Because….?

27. Ghen v. Rich (Uranium): DQ2.16: Application of Prior Cases
(b) Does Ghen lose property rights under the escaped animal analysis of Albers?
Time/Distance: Pretty Helpful to Killer
Abandonment/Pursuit?

28. Ghen v. Rich (Uranium): DQ2.16: Application of Prior Cases
(b) Does Ghen lose property rights under the escaped animal analysis of Albers?
No Pursuit but seems like Abandonment by Compulsion
Labor/Industry?

29. Ghen v. Rich (Uranium): DQ2.16: Application of Prior Cases
(b) Does Ghen lose property rights under the escaped animal analysis of Albers?
Labor/Industry Very Strong for Killer
Killer not negligent re confinement; unclear what else could do
Court says industry fails if Fs could take:
Overall Albers = pretty strong for killer if OK w Finder outside industry

30. Ghen v. Rich (Uranium): DQ2.16: Application of Prior Cases
(c) Assuming Ghen owns at moment of death, does he lose rights under Taber & Bartlett?
Similar: Killer did all possible to mark
Similar: Fs have reason to know of & can identify killer
Different: Killer never had actual control
Different: No return/pursuit; rely on others to find
Different: Longer time frame
Overall Result? Because …?

31. Ghen v. Rich (Uranium): DQ2.16: Application of Prior Cases
(c) Assuming Ghen owns at moment of death, does he lose rights under Taber & Bartlett?
Note Ghen reading of Bartlett & Taber (dicta in last para p.76): If fisherman does all he can do to make animal his own, would seem to be sufficient.
All differences on previous slide seem unavoidable given technology.

32. Ghen v. Rich (Uranium): DQ2.16: Application of Prior Cases
(d) Should the custom in Ghen be treated as law under the analysis of Swift? Look at:
Doesn’t affect outsiders?
Used by entire business for a long time?
Legal rule harder to apply than custom?
Custom is reasonable?

33. Ghen v. Rich (Uranium): DQ2.16: Application of Prior Cases
(d) Should the custom in Ghen be treated as law under the analysis of Swift?
Doesn’t affect outsiders?
Obviously can affect outsiders who find whales (beachcombing tourists).
Why might we think this isn’t a big problem?

34. Ghen v. Rich (Uranium): DQ2.16: Application of Prior Cases
(d) Should the custom in Ghen be treated as law under the analysis of Swift?
Doesn’t affect outsiders: Sometimes does, but maybe OK b/c can’t process whale w/o people in industry (have to learn about custom to get value)
Used by entire business for a long time? Court says YES.
Legal rule harder to apply than custom?

35. Ghen v. Rich (Uranium): DQ2.16: Application of Prior Cases
(d) Should the custom in Ghen be treated as law under the analysis of Swift?
Legal rule harder to apply than custom? Unclear.
Court suggests killer might win under Taber/Bartlett
Would be similar facts over & over, so likely to be pretty certain over time.
4. Custom is reasonable?

36. Ghen v. Rich (Uranium): DQ2.16: Application of Prior Cases
(d) Should the custom in Ghen be treated as law under the analysis of Swift?
Custom is reasonable?
Whalers doing all they can.
Necessary for Continued Operation of Industry
Finder Gets Fee
Relative Certainty of Process )per Wood B2)
[Could reference limited harm to outsiders here].
Qs on Ghen?