ELEMENTS D2 & D1 POWER POINT SLIDES

1. ELEMENTS D2 & D1 POWER POINT SLIDES Class #21 Wednesday, October 18, 2017 Thursday, October 19, 2017 .

2. Music to Accompany Taber:“Romantic Russia” London Symphony Orchestra (recorded 1956, 1966)Music: Mid- to Late 19th Century D2 Lunch Today (Very Last Lunch) Meet on Brix @ 12:05 Day * Fernández * Harder * Hochsztein Marks * Mears * Mitrani

3. Kesler v. Jones (Uranium) DQ1.60: Factual Differences from Albers Probably Less Significant Differences (from Prior Years) • 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 affect result).

4. Kesler v. Jones (Not Shown in Class) DQ1.60: Factual Differences from Albers Differences Possibly Going to Value of Fox : Clever ideas, although I’m not sure value of individual fox would matter much (as opposed to average value or existence of industry). • Color: • Albers Fox = Black or Silver-Black. • KeslerFox = “Cross-Bred.” Might be what Albers calls “Cross.” • Sex • Albers Fox = Male • KeslerFox = Female. Maybe worth less b/c can’t mate with multiple males at same time. However, foxes tend to have only one mate (see Comparison Box #1), so may depend on breeding process used (natural v. artificial).

5. Kesler v. Jones (Uranium) DQ1.60: Factual Differences from Albers Probably Most Significant Differences: Help OO or F (and Why?) • Keslercaretakers still in pursuit when fox killed. • Probably shorter time & distance from escape to kill • Fox in Keslerhad escaped once before & been recaptured. • Kesler finder/defendant is not expert. • No evidence Kesler fox has tattoo.

6. Kesler v. Jones (Uranium) DQ1.60: Factual Differences from Albers Probably Most Significant Differences: Help OO or F (and Why?) • Keslercaretakers still in pursuit when fox killed. • Probably shorter time & distance from escape to kill • Fox in Keslerhad escaped once before & been recaptured. • Kesler finder/defendant is not expert. • No evidence Kesler fox has tattoo. • Kesler takes place in Idaho, not Colorado. • 1927 v. 1931

7. Kesler v. Jones (Uranium) DQ1.61: 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?

8. Kesler v. Jones (R Uranium adium) DQ1.61: 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….”

9. Kesler v. Jones (Uranium) DQ1.61: Differences in Analysis from Albers Kesler says, “Albers, a case squarely in point, supports the conclusion herein ....” [i.e., NOT the reasoning.]

10. Kesler v. Jones (Uranium) DQ1.61: Differences in Analysis from Albers Albers: Returns pelt to OO byrejectingMullett rule & creating new rule for valuable animals v. Kesler: Returns pelt to OObyapplyingMullett rule

11. Kesler v. Jones BRIEF:Uranium 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

12. Kesler v. Jones BRIEF:Uranium 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?

13. Kesler v. Jones BRIEF:Uranium Sample Brief Will Include Broad/Narrow Holdings & Rationales

14. Kesler v. Jones:Note block quote from treatise (p.54): 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.”

15. Kesler v. Jones Compare block quote (p.54) 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.”

16. Manning and Mullett Factors Under Albers & Kesler

17. Kesler v. Jones BRIEF:Uranium 1st Issue (Unlawful Killing): Did trial court err in entering judgment for defendant [on unlawful killing claim] because … • Hard to be precise about relevant facts b/c • Court doesn’t say why Ps thought the killing was unreasonable • We aren’t studying defenses to intentional torts here, so don’t have other examples to look at.

18. Kesler v. Jones BRIEF:Uranium 1st Issue (Unlawful Killing): Pretty General Version • (E.g.:) Did trial court err in entering judgment for defendant [on unlawful killing claim] because a person has no right to kill a fox escaped from captivity when asked to help protect a neighbor’s chickens from the fox? Probably helpful to also include some language about reasonableness.

19. Kesler v. Jones BRIEF:Uranium 1st Narrow Holding (Unlawful Killing): • (E.g.:) No, trial court did not err in entering judgment for defendant [on unlawful killing claim] becausea person does havethe right to kill a fox escaped from captivity when reasonably necessary to help protect a neighbor’s chickens from the fox. QUESTIONS?

20. Kesler v. Jones (Uranium) DQ1.62: Severability of Property Rights Both Albers and Kesler treat the question of the right to kill the fox as independent of the question of who owns it. If the plaintiffs owned both foxes, why was it legally acceptable for a 3d party to kill them?

21. Kesler v. Jones (Uranium) DQ1.62: Severability of Property Rights Can have some rights with regard to an object without having all possible rights • Common Examples: • Landlord-Tenant • Ratione Soli

22. Kesler v. Jones (Uranium) DQ1.62: Severability of Property Rights Can have some rights with regard to an object without having all possible rights • Your “right” not to have others destroy your property can be lost when your property endangers person or property of others. • Common Example: Necessity • Neighbor can cut down your trees to limit spread of fire

23. Kesler v. Jones (Uranium) DQ1.62: Severability of Property Rights • Can have some rights with regard to an object without having all possible rights • Common Example: Necessity • Neighbor can cut down your trees to limit spread of fire • BUT You still own the cut wood.

24. Kesler v. Jones (Uranium) DQ1.62: Severability of Property Rights Here, court says OK for Dr. Jones to kill a fox owned by Kesler because • he acted (for Mrs. White) as “a reasonably prudent person” would, • “under reasonably apparent necessity, • in the protection of his own [or White’s] property” (chickens).

25. Kesler v. Jones (Uranium) DQ1.62: Severability of Property Rights • Here, court says OK for Dr. Jones to kill a fox owned by Kesler because • he acted (for Mrs. White) as “a reasonably prudent person” would, • “under reasonably apparent necessity, • in the protection of his own property” (chickens). • Looks like standard defense to intentional tort for “defense of property.” Could fold some of this language into issue/holding.

26. Kesler v. Jones (Uranium) DQ1.62: Severability of Property Rights BOTTOM LINE • Property rights of fox owners limited to protect property of others (e.g., chickens) • Jones had right to kill fox, but ownership of carcass is separate issue, turning on whether fox was owned when shot. • Qs?

27. 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?

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

29. 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.

30. 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 (according to Pierson) • Escaped Animal: Close pursuit may be sufficient to prevent animal from returning to NL.

31. Logistics for Friday(Materials Posted on Course Page)* = Have Accessible in Class • Midterm Review • Copy of Midterm Question* • Grading Sheet for Midterm* • Comments & Student Answers from Prior Years • Info & Qs on GWA #2 • 2007 Exam Question (1st Possession) • Copy of Question* • Instructions for In-Class Arguments* (Krypton & Oxygen)

32. UNIT II: EXTENSION BY ANALOGY Part 1: WHALING CASES QUESTIONS ON … ?: • Instructions for Briefing Trial Court Cases (60-61) • Intro to Whaling Cases (61-63) • Glossary (64)`

33. UNIT II: EXTENSION BY ANALOGY (WHALING CASES) RADIUM :Taber v. Jenny Brief & DQ2.01-2.04

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

35. Taber v. Jenny BRIEF (Radium): 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. 

36. Taber v. Jenny BRIEF (Radium): 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? Who would get value of goods created from whale carcass?

37. Taber v. Jenny BRIEF (Radium): 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

38. Taber v. Jenny BRIEF (Radium): 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 • See Bottom p.65: When the whale had been killed and taken possession of by the boat of the Hillman, it became the property of the owners of that ship….

39. Taber v. Jenny BRIEF (Radium): Statement of the Case Taber, presumably the owner of Hillman, a ship whose crew killed and anchored a whale suedJenny, presumably the owner of Zone, a ship whose crew found and took the whale …. But court refers to libellants & respondentsin the plural, so …

40. Taber v. Jenny BRIEF (Radium): Statement of the Case Taber and others, presumably the owners of Hillman, a ship whose crew killed and anchored a whale suedJenny and others, presumably the owners of Zone, a ship whose crew found and took the whale …. • for [cause of action]??? • Seeking [remedy] ???

41. Taber v. Jenny BRIEF (Radium): 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?

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

43. Taber v. Jenny BRIEF (Radium): 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.

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

45. E.g., Legal Framework of Taber & Bartlett Basic Facts of Both Cases: • Crew of 1st ship kills whale, marks and anchors it, leaves • Whale carcass moves some, then found & taken by crew of 2d ship • Uncontested that Crew of 1st Ship Acquired Property Rights by Killing Whale (Kodak Moment)

46. 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?

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

48. Taber v. Jenny BRIEF (Radium): ISSUE • Does killer of whale lose property rights when it leaves the body of the whale in the ocean where …. [facts]? Most Important Facts for This Purpose?

49. Taber v. Jenny BRIEF (Radium): 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? (in last paragraph)

50. Taber v. Jenny BRIEF (Radium): ISSUE Parties/Case suggest several ways to resolve Legal Issue: • Law of Salvage (DQ2.04) • Whaling Customs (DQ2.02) • Common Law of Property