1. ELEMENTS D2 & D1 2017 POWER POINT SLIDES
Class #15: Wednesday, October 4 & Thursday October 5

2. D1 Lunch Thursday Next Week
MUSIC (to accompany Manning): Tchaikovsky, Symphony #4 (1880) Recording: Berlin Philharmonic (2003) Conductor: Von Karajan
D1 Lunch Thursday
Meet on 12:05
Greber * Moreiras
Portillo * Seals
Small * Soares
Next Week
MON: Both Classes Together
TUE/WED: Normal Schedule
THU: Both Classes Together
FRI: Midterm During Class Times

3. GROUP WRITTEN ASSIGNMENT #1 Due Tuesday 10/10 @ 9 pm
I’ll Take Qs in Class Today &
Monday 10/9 (Both Classes Meet Together)
I’ll Take Qs
By until Sunday 11:59 p.m.
In Person until the End of Break on Mon 10/9
QUESTIONS?

4. Return to MANNING URANIUM: Brief Continued RADIUM: DQ
Return to MANNING URANIUM: Brief Continued RADIUM: DQ.146 (From Facts to Relevant Factors)

5. Manning v. Mitcherson: BRIEF
ISSUE  NARROW HOLDING
Did the magistrate err in awarding possession of the canary to the original owner because an OO loses [or retains] property rights to an escaping canary where [facts].
 The magistrate didn’t err in awarding possession of the canary to the original owner because an OO retains property rights to an escaping animal where [facts].
We’ll Insert List of Facts from p. 40 (2d Paragraph) + Distinctive Crest

6. Manning v. Mitcherson: FACTS & NARROW HOLDING
The original owner retains property rights in an escaped [canary] … [that responded to its name] [that had escaped and returned once before] [that had distinctive crest] [that had been owned for two years] [that had been missing for only five days] [that OO located day after it was found]

7. NARROWING/BROADENING HOLDINGS
Narrowest Version of Holding Essentially Includes All Facts of Present Case
Broader Versions Address More Future Cases Because Less Specific

8. NARROWING/BROADENING HOLDINGS
Narrowest Version of Holding Essentially Includes All Facts of Present Case
Broader Versions Address More Future Cases
Broaden Holding by (either or both of):
Making Descriptions of Some Facts More General
Eliminating Some Facts

9. NARROWING/BROADENING HOLDINGS
Narrowest Version Essentially Includes All Facts of Case
Broad Versions Address More Future Cases
Different Versions of Broad Holdings
Play With to See What Case Might Stand For Going Forward
Remember Acceptable Formulations Must be Consistent with Result & Language of Case

10. Lots of Ways to Articulate Manning Holding
DQ1.48: Articulating Manning Holding For Squirrel Hypo: Nature of the Exercise
Lots of Ways to Articulate Manning Holding
Can Include or Exclude Particular Facts
Can Describe Facts More Specifically or More Generally
Point of Broadening & Narrowing is to Identify Ways to Characterize Case to Help Use It as Precedent
Squirrel Hypo designed to get you to
Play with the holding in the way that litigators do
Find plausible versions helpful to client’s position.
Good Way to Start Exercise
Apply Manning Factors we derived to Hypo
Determine strengths & weaknesses under Manning of each client’s position.

11. Mining Manning ‘s Meaning: DQ1.48 (Squirrel Hypothetical) (OXYGEN)
Friday In-Class: OXYGENS Apply Manning Factors to Squirrel Hypothetical (& to Mullett Facts (DQ1.49))
E-Participation Due Friday: Selected OXYGENS each submit simply a version of Manning holding helpful to their client (See next slide)
Next Week: I’ll Give You Comments on Some Sample Holdings Articulated to Favor Each Party.

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

13. Manning v. Mitcherson: BROADENING HOLDING: Example
The original owner retains property rights in an escaped [canary]  [animal ferae naturae]
[that responded to its name]
[that had escaped and returned once before]
[that had distinctive crest]
[that had been owned for two years]
[that had been missing for only five days]
[that OO located day after it was found]

14. Manning v. Mitcherson: DQ1.46 Relevant Factors (ME then RADIUM)
We’ll discuss the possible significance of each fact, including…
How Might You Broaden a Particular Fact to a More General Factor? (to imagine what might be part of broader versions of holding)
Why Might that Factor Matter in Determining Rights between OO and Finder? (to clarify purpose/relevance)
How Well Does the Particular Fact Further the Purposes of Considering the General Factor ? (to assess the relative importance of the fact and prepare to compare it to facts of future cases/problems)

15. Manning v. Mitcherson: DQ1.46 Relevant Factors (ME)
The original owner retains property rights in an escaped animal ferae naturae …
that responded to its name
that had escaped and returned once before
Possible Significance?
Possible more general factor(s)?

16. Manning v. Mitcherson: DQ1.46 Relevant Factors (ME)
The original owner retains property rights in an escaped animal ferae naturae …
that responded to its name
that had escaped and returned once before
Possible Significance?
Possible more general factor?
Taming or Emotional Bonding
Why Might these Factors Matter in Determining Rights between OO and Finder?

17. Manning v. Mitcherson: DQ1.46 Relevant Factors (ME)
Possible Significance of …
responded to name + Prior escape/return  tamed or bonded
Shows labor by OO (or prior owner) AND/OR
May want to protect emotional connection
How well do the specific facts achieve these purposes?

18. Manning v. Mitcherson: FACTS & HOLDING
The original owner retains property rights in an escaped [canary]  [animal ferae naturae]
[that had escaped and returned once before]
+ [that responded to its name] 
[that was tamed/had emotional bond to OO]
[that had distinctive crest]
[that had been owned for two years]
[that had been missing for only five days]
[that OO located day after it was found]

19. Manning v. Mitcherson: DQ1.46 Relevant Factors (RADIUM)
The original owner retains property rights in an escaped animal ferae naturae …
that had distinctive crest …
Possible Significance?
Possible more general factor?
Why might matter to rights of OO/F?

20. Manning v. Mitcherson: DQ1.46 Relevant Factors (RADIUM)
Possible Significance of …
that had distinctive crest  marked
May help identify animal
May provide notice to F of prior claim
[May also further show taming or emotional bond if grooming by OO.]
How well does crest here do these things?

21. Manning v. Mitcherson: FACTS & HOLDING
The original owner retains property rights in an escaped [canary]  [animal ferae naturae]
[that had escaped and returned once before]
+ [that responded to its name] 
[that was tamed/had emotional bond to OO]
[that had distinctive crest]
[that was marked]
[that had been owned for two years]
[that had been missing for only five days]
[that OO located day after it was found]

22. Manning v. Mitcherson: DQ1.46 Relevant Factors (RADIUM)
The original owner retains property rights in an escaped animal ferae naturae …
Note Three Different Measures of Time
[that had been owned for two years]
[that had been missing for only five days]
[that OO located day after it was found]

23. Manning v. Mitcherson: DQ1.46 Relevant Factors (ME)
Possible Significance of …
that had been owned for two years 
Taming/Bonding again
Maybe stronger than name or escape/return:
More labor by OO (2 years maintenance)
Emotional connection probably strong (at least on OO’s side!!)

24. Manning v. Mitcherson: FACTS & HOLDING
The original owner retains property rights in an escaped [canary]  [animal ferae naturae] [that had escaped and returned once before] + [that responded to its name] + [that had been owned for two years] + [maybe groomed by OO]  [that was tamed & emotionally bonded to OO] [that had distinctive crest]  [that was marked] [that had been missing for only five days] [that OO located day after it was found]

25. Manning v. Mitcherson: DQ1.46 Relevant Factors (RADIUM)
The original owner retains property rights in an escaped animal ferae naturae …
that had been missing for only five days
that OO located day after it was found
Possible Significance?
Possible more general factor?
Why might matter to rights of OO/F?

26. Manning v. Mitcherson: DQ1.46 Relevant Factors (RADIUM)
Possible Significance of …
missing only five days/OO located day after found  Gone very short time
Shows pursuit/interest by OO
Little time for F to invest or bond
How well does time here show these things?

27. Manning v. Mitcherson: FACTS & HOLDING
The original owner retains property rights in an escaped [canary]  [animal ferae naturae]
[that had distinctive crest]  [that was marked]
[prior escape/return] + [responded to name] + [owned for two years]  [that was tamed & emotionally bonded to OO]
[that had been missing for only five days] + [that OO located day after it was found]  [that had been gone for a short time]

28. Manning v. Mitcherson: BROADER HOLDINGS: URANIUM
The original owner retains property rights in an escaped [canary] … [that responded to its name] [that had escaped and returned once before] [that had distinctive crest] [that had been owned for two years] [that had been missing for only five days] [that OO located day after it was found]

29. Manning v. Mitcherson: VERSIONS OF HOLDING
Version #1: The original owner retains property rights in an escaped bird that had
escaped and returned before,
is distinctively marked,
had been found only a short time after it escaped, and
was located by the owner a short time after being found.

30. Manning v. Mitcherson: VERSIONS OF HOLDING
Version #2: The original owner retains property rights in an escaped animal ferae naturae that is
tamed and
distinctively marked.

31. Manning v. Mitcherson: VERSIONS OF HOLDING
Version #3: The original owner retains property rights in an escaped animal ferae naturae where
the OO is emotionally bonded to the animal and
locates the animal after it only is gone for a short time.

32. Manning v. Mitcherson: MANY VERSIONS OF HOLDING
As with Pierson, exact scope of Manning holding necessarily unclear until Ga. S.Ct. clarifies.
Use other language from case to help determine best alternatives (DQ1.45 & 1.47).
Use squirrel hypothetical to see how different versions might accomplish different results (DQ1.48)
QUESTIONS ON FACTORS & HOLDING?

33. MINING the MEANING of MANNING Relevant Language (DQ1. 45 & DQ1
MINING the MEANING of MANNING Relevant Language (DQ1.45 & DQ1.47 & Rationales) featuring ME, RADIUM & URANIUM

34. Mining Manning ‘s Meaning: DQ1.45 RADIUM
The law of Georgia is, that to have property in animals, birds and fishes which are wild by nature, one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them. (Top p.40)
POSSIBLE SIGNIFICANCE TO COURT’S REASONING?

35. Mining Manning ‘s Meaning: DQ1.45
The law of Georgia is, that to have property in animals, birds and fishes which are wild by nature, one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them.
Could simply go to 1st possession and mean that Mitcherson owned bird prior to escape.
Could mean, “Once tamed, yours forever”, BUT structure of opinion suggests otherwise.

36. Mining Manning ‘s Meaning: Taming Enough?
(p.40 2d para): …the bird in controversy was shown to have been tamed. It was also testified that …

37. Mining Manning ‘s Meaning: Taming Enough?
…the bird … was … tamed. It was also testified that
it had been in the possession of the plaintiff in the warrant about two years;
that it knew its name, and when called by its owner, would answer the call;
that it had left its cage on one occasion, and after having been gone a day or two returned;
that on the 27th day of December, before the preceding new year's day, it was missing from its cage, and on the latter day it was received and taken possession of by the defendant …

38. Mining Manning ‘s Meaning: Taming Enough?
…the bird … was … tamed. It was also testified that
in the possession of the plaintiff about two years;
knew & would answer to its name;
prior escape & return;
Caught and given to defendant 5 days after escape
¶ Under this evidence, there does not seem to be any question of sufficient possession and dominion over this bird, to create a property right in the plaintiff.

39. Mining Manning ‘s Meaning: DQ1.45: RADIUM
The law of Georgia is, that to have property in animals, birds and fishes which are wild by nature, one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them.
Could mean, “Once tamed, yours forever”, BUT if holding is that simple, court probably would just say so and NOT list all the other evidence.

40. Mining Manning ‘s Meaning: DQ1.45
To have property in animals ferae naturae, “one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them.”
Present tense suggests this is not a rule for when you acquire property rights, but a rule about how you maintain property lights in a living wild animal.

41. Mining Manning ‘s Meaning: DQ1.45
To have property in animals ferae naturae, “one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them.”
Present tense suggests this is not a rule for when you acquire property rights, but a rule about how you maintain property lights in a living wild animal.
D almost certainly argued that P lost her property rights because she no longer had the bird within her “actual possession, custody or control.”

42. Mining Manning ‘s Meaning: DQ1.45
To have property in animals ferae naturae, “one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them.”
D must have argued that P lost her property rights because she no longer had the bird within her “actual possession, custody or control.”
The Court rejected that argument: “Under this evidence, there does not seem to be any question of sufficient possession and dominion over this bird, to create a property right in the plaintiff.

43. Mining Manning ‘s Meaning: DQ1.45 & Possible Doctrinal Rationale
To have property in animals ferae naturae, “one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them.” Defendant seems to have argued that P lost her property rights because she no longer had the bird within her “actual possession, custody or control.” However, the court held that the totality of the evidence here showed that she retained “sufficient possession and dominion over [the] bird” to still have property rights.

44. Mining Manning ‘s Meaning: DQ1.45: RADIUM
The law of Georgia is, that to have property in animals, birds and fishes which are wild by nature, one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them.
Interesting idea from Fall 2012 that OO retains ownership if sufficient evidence remains of taming, domesticating or confining.
Could Finder here tell that bird had been tamed and/or confined?

45. 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. (p.40 last para.)
For Sweet, probably not an accident!
Court probably means owner did not deliberately allow bird to fly free.

46. 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?

47. 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

48. 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]