Taber v. Jenny BRIEF

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“Romantic Russia”
London Symphony Orchestra
(recorded 1956, 1966)
Music: Mid- to Late 19th Century
Oxygen Brief #1:
Krypton Brief #1:
Available for Pick-Up We’ll E-Mail You PDF of
Packet on Monday
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
Kesler v. Jones (Oxygen)
DQ1.61: Factual Differences from Albers
Probably Less Significant Differences (from Prior Years)
1.
2.
3.
4.
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 effect result)
Kesler v. Jones (Oxygen)
DQ1.61: Factual Differences from Albers
Probably Most Significant Differences
1.
2.
3.
4.
5.
6.
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.
Kesler v. Jones (Oxygen)
DQ1.61: Factual Differences from Albers
Help OO or F (and Why?)
1.
2.
3.
4.
5.
6.
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.
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?
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….”
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.]
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
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
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?
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.”
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.”
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?
Pierson and Kesler :
First Possession v. Escape
• Same terms can have different significance
depending on context.
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.
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
• Escaped Animal: Close pursuit may be
sufficient to prevent animal from returning to
NL.
UNIT II: EXTENSION BY
ANALOGY (WHALING CASES)
Taber v. Jenny: KRYPTON(ITE)
In-Class Brief & DQs 2.01-2.04 (Rest of Today)
Taber v. Jenny BRIEF:
Statement of the Case
Identifying parties a little
complicated in these cases.
Initially looks like ship v. ship:
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. 
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?
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
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 …
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] ???
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?
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).
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.
Taber v. Jenny BRIEF:
Procedural Posture
Decision after a trial.
(See Briefing Instructions for Trial Court Cases)
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.
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 (Kodak Moment)
Legal Framework of Taber & Bartlett
“Kodak Moment” (1913)
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?
Taber v. Jenny BRIEF: ISSUE
• No procedural element because not an
appeal (so no error by court below).
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]?
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?
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
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)
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
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)
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.
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)
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."
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)
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.
Taber v. Jenny BRIEF:
Factual Disputes & Findings
Questions on this Part of Brief?
On to DQ2.01.
DQ2.01: Taber under Mullett
DQ2.01: Taber under Mullett
Abandonment
• Easy to Apply to Almost Any Kind of
Property
• Evidence of No Abandonment?
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
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”
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
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
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?
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”
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.
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
DQ2.01: Taber under Albers
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?
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
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.
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