MUSIC: Gilbert & Sullivan PIRATES OF PENZANCE (1879)

Welsh National Opera Charles Mackerras, Conductor Recording: 1993

NEXT WEEK Mon & Tues: Regular Schedule Wed: Both Sections 7:55-9:15 Thu & Fri: No Class

MINING the MEANING of

MANNING

Manning v. Mitcherson

Relevant Language DQ1.45 & 1.47 (OXYGEN)

Mining Manning ‘s Meaning: DQ1.45: OXYGEN

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?

Mining Manning ‘s Meaning: DQ1.45: OXYGEN

• • 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 1 st possession and mean that Mitcherson owned bird prior to escape.

Could mean, “Once tamed, yours forever”, BUT structure

of opinion suggests otherwise.

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

…

• • • •

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 …

• • • •

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.

•

Mining Manning ‘s Meaning: DQ1.45: OXYGEN

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.

Mining Manning ‘s Meaning: DQ1.45

To

have

“one property in animals

ferae naturae

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 about how you property rights, but a rule maintain living wild animal.

property lights in a

To

Mining Manning ‘s Meaning: DQ1.45

have

property in animals

ferae naturae

,

“one must have them within his actual possession, custody or contro

l, and this he may do by taming, • • domesticating, or confining them.

” Present tense suggests this is not a rule for when you acquire maintain property rights, but a rule about how you property lights in a living wild animal.

D must have argued that P lost her property rights because she no longer had the bird within her “actual possession, custody or control.”

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.

Mining Manning ‘s Meaning: DQ1.45 & Possible Doctrinal Rationale

, “one must have them within his actual possession, custody or control, and this he may domesticating, or confining them.

” do by taming, 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] rights.

bird” to still have property

•

Mining Manning ‘s Meaning: DQ1.45: OXYGEN

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 Dahl 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?

Mining Manning ‘s Meaning: DQ1.47: OXYGEN

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, not an accident! Court probably means owner did not deliberately allow bird to fly free

Mining Manning ‘s Meaning: DQ1.47: OXYGEN

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?

Mining Manning ‘s Meaning: DQ1.47: OXYGEN

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

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]

escape

] [

that only traveled a short distance after

Mining Manning ‘s Meaning: DQ1.47: OXYGEN

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.

WHY?

This is unsupported rhetoric. You need to do better.

More explanation = More Persuasive = More Points

Mining Manning ‘s Meaning: DQ1.47: OXYGEN

• • • • 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.

WHY?

MAYBE: Unfair to OO; too close in time and distance to lose rights (protect emotional & material investment) MAYBE: Finder should know that there is prior OO, so shouldn’t keep it

MAYBE BOTH

PLAUSIBLE ADDITIONAL ARGUMENT: Court is concerned that OO not have to over-invest in confinement (Canary Alcatraz) to maintain ownership. Cf. Shaw.

Mining Manning ‘s Meaning: DQ1.47 OXYGEN (p.40 Last Para.)

To hold that the traveling organist with his attendant monkey, if it should slip its collar, and go at will out

of his immediate possession and control, and be

captured by another person, that he would be the true owner and the organist lose all claim to it, is hardly to be expected; or 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.

•

Again looks like short time/distance relevant .

Mining Manning ‘s Meaning: DQ1.47: OXYGEN

To hold that the traveling organist with his attendant monkey, if it should slip its collar, and go at will out of his immediate possession and control, and be captured by another person, that he would be the true owner and the organist lose all claim to it, is hardly to be expected; or 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.

WHAT IS A MENAGERIE?

Mining Manning ‘s Meaning: DQ1.47: OXYGEN

• •

Animals Referenced in Last Paragraph:

Wild Animals in a Menagerie (= Zoo) Organ Grinder’s Monkey

Why These Animals?

Mining Manning ‘s Meaning: DQ1.47: OXYGEN

– –

Why Animals Referenced in Last Paragraph: Wild Animals in a Menagerie (= Zoo) Organ Grinder’s Monkey

•

MAYBE: Valuable (but canary much less $$$)

•

MAYBE: F should know there’s prior owner

•

Good Idea for 2014, but probably not 1882:

These animals need expertise to care for, so protect animals by returning to OO (per Ciani §B) NOTE: Menagerie animals again inconsistent with simply relying on “tamed”

Mining Manning ‘s Meaning: DQ1.47 & POSSIBLE POLICY RATIONALES

The court stated that it would be unjust to allow the finder to keep a pet bird that escaped to the street. It compared the case to an escaped organ grinder’s monkey and to wild animals escaping from a menagerie.

These analogies suggest that it might be trying to protect the original owner’s investment in training and purchasing the animal.

This idea would support returning the canary to the plaintiff in this case.

Mining Manning ‘s Meaning: DQ1.47 & POSSIBLE POLICY RATIONALES

The court stated that it would be unjust to allow the finder to keep a pet bird that escaped to the street. It compared the case to an escaped organ grinder’s monkey and to wild animals escaping from a menagerie.

These analogies suggest that it might believe that the finders of all these animals ought to know that they have a prior owner, and so should return them.

This idea would support returning the canary to the plaintiff in this case.

Mining Manning ‘s Meaning: DQ1.47 & POSSIBLE POLICY RATIONALES

Other Possible Policy Rationales?

•

Certainty: To retain property rights, OO doesn’t need to take extraordinary measures to prevent escape (like Shaw).

• • • •

Mining Manning ‘s Meaning: Plausible Factors

Taming (or Other Investment in Animal) Marking (or F Likely Aware of OO) Emotional Bond Short Time/Distance from Escape

Mining Manning ‘s Meaning:

DQ1.48 (Squirrel Hypothetical) Mon-Tues

•

First: Apply Manning Factors to Squirrel Hypothetical (Uranium)

•

Then: Look at Sample Holdings Articulated to Favor Each Party (Uranium/Radium: E Submissions Assigned on Next Slide)

• • • • • •

Mining Manning ‘s Meaning: DQ1.48 E-Participation E-Mail Holding to Me by 3pm Saturday (B) Downey

•

(B) Hiers (B) Keller

•

(B) Owen (B) Merino

•

(B) Rose (D) Kleinberg

•

(D) Ferman (D) Seiglie

•

(D) Glunt (D) Spain

•

(D) Gonzalez

Albers v. E.A. Stephens & Co.: Important Case (Classes 17-19)

•

Legal Analysis Most Complex We’ve Done

–

Lots of arguments addressed rapidly

– –

Look at brief introduction in materials Read carefully

–

Take time to carefully brief & answer DQs

–

Self-Quiz available this afternoon

LOGISTICS: CLASS #15

ASSIGNMENTS DUE SUNDAY 9/21

• •

ALL: Group Assignment #1 Due @ 2 pm KRYPTON: Albers Brief Due @ 9pm

•

FOR BOTH ASSIGNMENTS

•

Double-check all instructions before finalizing

•

Today = Last Chance for Qs

LOGISTICS: CLASS #15

•

TO BE POSTED THIS WEEKEND

•

Manning Sample Brief

•

Course Materials: Unit Two (Part 1: Whaling Cases)

•

Updated Syllabus & Assignment Sheet to 10/3 (Including adjustment again to where we are).

•

Other Briefs Due Before Fall Break:

•

URANIUM Brief #1 (Kesler) Due Sun 9/28 @ 4pm

•

RADIUM Brief #2 (Taber) Due Sun 9/28 @ 4pm

•

Use briefing form for trial court cases in Unit Two Materials

•

I’ll Take Qs Wednesday

Mullett v. Bradley

IN-CLASS CASE BRIEF: RADIUM

Mullett v. Bradley BRIEF: RADIUM

Statement of the Case:

Mullett … ???

sued Bradley … for [cause of action] seeking [remedy]

Mullett v. Bradley BRIEF: RADIUM

Statement of the Case:

Mullett, original owner of an escaped sea lion,

sued Bradley … ???

for [cause of action] seeking [remedy]

Mullett v. Bradley BRIEF: RADIUM

Statement of the Case:

Mullett, OO of an escaped sea lion,

sued Bradley, who purchased the animal from its finder

for [cause of action] … ???

seeking [remedy]

Mullett v. Bradley BRIEF: RADIUM

Statement of the Case:

Mullett, OO of an escaped sea lion, sued Bradley, who purchased the animal from F

for conversion

seeking [remedy] … ???

Mullett v. Bradley BRIEF: RADIUM

Statement of the Case:

Mullett, OO of an escaped sea lion, sued Bradley, who purchased the animal from F, for conversion

seeking damages.

Mullett v. Bradley BRIEF: RADIUM

Procedural Posture: The lower court

dismissed the complaint

. The plaintiff appealed.

After a Trial or on a Dispositive Motion?

How do you know?

Mullett v. Bradley BRIEF: RADIUM

Procedural Posture: The lower court dismissed the complaint

after

a trial. The plaintiff appealed.

•

“The complaint was dismissed on the merits.”

(Top p.43) • Statements referring to evidence and proof, e.g., “

The evidence not only fails to show that there was any animus revertendi on its part, but the inference from the facts proven is quite the contrary.”

(Long para. mid-p.43)

Mullett v. Bradley BRIEF: RADIUM Facts Relevant to Analysis:

Court’s analysis makes no mention of capture, transport, blemishes, rejection by buyer, so we can start with …

•

P placed sea lion he owned on island. …

• • •

Mullett v. Bradley BRIEF: RADIUM

Facts Relevant to Analysis: P placed sea lion he owned on island. Sea lion escaped. P made no effort to recapture it. Fisherman found sea lion 2 weeks later, 70+ miles from the island. Fisherman sold it to D. A year later, plaintiff recognized the sea lion and demanded its return. D refused.

ADDITIONAL FACT NOT FOUND IN FACT SECTION OF OPINION?

Mullett v. Bradley BRIEF: RADIUM

•

Sea lions are native to Pacific Ocean; not found in the Atlantic.

•

P placed sea lion he owned on island in Atlantic escaped. P made no effort to recapture it. . Sea lion

•

Fisherman found sea lion in Atlantic 2 weeks later, 70+ miles from the island. Fisherman sold it to D.

•

A year later, plaintiff recognized the sea lion and demanded its return. D refused.

Mullett v. Bradley

DQ1.49: Mullett Facts & Manning Factors (Uranium)

• • • •

URANIUM DQ1.49: Applying Manning ‘s Factors to Facts of

Mullett

Taming (or Other Investment in Animal) Marking (or F Likely Aware of OO) Emotional Bond Short Time/Distance from Escape

•

URANIUM DQ1.49: Applying Manning ‘s Factors to Facts of

Mullett

Taming (or Other Investment in Animal) •

Evidence Here?

•

URANIUM DQ1.49: Applying Manning ‘s Factors to Facts of

Mullett

Taming (or Other Investment in Animal) •

Evidence Here

•

No Evidence of Taming/Training

•

Probably Significant $$$ Investment (Cross Country Travel)

•

Factor Help OO Under Manning?

•

URANIUM DQ1.49: Applying Manning ‘s Factors to Facts of

Mullett

Taming (or Other Investment in Animal) •

Evidence Here

•

No Evidence of Taming/Training

•

Probably Significant $$$ Investment

•

Factor Help OO Under Manning?

•

Not Tamed

•

Unclear How Much $$$ Investment Helps (Maybe b/c of Menagerie Animals)

•

URANIUM DQ1.49: Applying Manning ‘s Factors to Facts of

Mullett

Marking (or F Likely Aware of OO) •

Evidence Here?

•

URANIUM DQ1.49: Applying Manning ‘s Factors to Facts of

Mullett

Marking (or F Likely Aware of OO) •

Evidence Here

–

“Blemishes” (Scarsides)

–

Maybe F Should Know b/c in Atlantic (Save for Discussion of Natural Liberty)

•

Blemishes as Marks Help OO Under Manning? (Can compare to crest.)

•

URANIUM DQ1.49: Applying Manning ‘s Factors to Facts of

Mullett

Marking =

“Blemishes”

•

As I.D., Probably Better Than Crest

•

More Permanent

•

Others Unlikely to Have Same

•

As Notice to Finder, Probably Weaker

•

Could Occur Naturally in Wild

•

Unless Scarring Pattern “Unnatural” (E.g., Imprint of Collar or Net)

•

URANIUM DQ1.49: Applying Manning ‘s Factors to Facts of

Mullett

Emotional Bond:

No Evidence at All

“He stuck me on this stupid island and he doesn’t call, he doesn’t write ….”

•

URANIUM DQ1.49: Applying Manning ‘s Factors to Facts of

Mullett

Related: Time of Ownership – • •

Escape “a few days” after OO regained it Cf. Manning: Owned for 2 Years

–

Not Helpful to OO of Sea Lion Little Additional Investment

–

No Emotional Bonding

•

URANIUM DQ1.49: Applying Manning ‘s Factors to Facts of

Mullett

Short Time/Distance from Escape •

Evidence Here:

•

Captured by F ~2 Weeks After Escape

•

Captured by F 70 Miles from “Home”

•

OO discovers animal about 1 year later

•

URANIUM DQ1.49: Applying Manning ‘s Factors to Facts of

Mullett

Short Time/Distance from Escape –

Captured ~2 Weeks/70 Miles from “Home”

•

Cf. Manning: 5 days/Nearby in Same Town

Significance?

•

URANIUM DQ1.49: Applying Manning ‘s Factors to Facts of

Mullett

Short Time/Distance from Escape –

Captured ~2 Weeks/70 Miles from “Home” (v.

• •

5 days/Nearby in Same Town)

–

Longer Time & Distance Might Mean: Less Training or Likelihood of Return

–

OO Less Likely to Recover

–

Animal More Likely to Have Returned to Wild BUT: 70 Miles for Sea Lion Probably Much Less Than for Canary

•

URANIUM DQ1.49: Applying Manning ‘s Factors to Facts of

Mullett

Short Time/Distance from Escape •

Claimed by OO 1 Year After Found

•

Cf. Manning: 1 Day After Found

Significance?

•

URANIUM DQ1.49: Applying Manning ‘s Factors to Facts of

Mullett

Short Time/Distance from Escape –

Claimed by OO 1 Year After Found (v. 1 Day) Could Mean

•

Insufficient Pursuit by OO

•

Significant Investment by F