ELEMENTS B POWER POINT SLIDES Class #14 (Extendo-Class) Friday, September 25, 2015.

ELEMENTS B POWER POINT SLIDES

Class #14 (Extendo-Class)Friday, September 25, 2015

MUSIC: BRAHMSCello Sonatas (1862, 1886)Mstislav Rostropovich, Cello

Rudolph Serkin, PianoRecording: 1983

URANIUM URANIUM Written Brief #1 Written Brief #1

(Kesler v. Jones)

due Tomorrow @ 8 due Tomorrow @ 8 pmpm

See Instructions for Written Assignments & Case Briefs (IM21-22)

Intro to Exam Softwarein DF Session

TODAY @ 11:00ROOM F309

MANNING: From Facts to

Relevant Factors

(cont’d)

DQ1.46 & Broader & Narrower

Holdings

featuring

OXYGENOXYGEN

Manning v. Mitcherson: DQ1.46

Relevant Factors (OXYGENOXYGEN)We’ll discuss the possible significance of each fact, including…

How Might You Broaden a Particular FactFact to a More General FactorFactor? (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)

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] [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 had distinctive crest] [that was marked] [(maintained by OO)]

[that was tamed/had emotional bond to OO][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]


Relevant Factors (OXYGENOXYGEN)Possible Significance of …

Responded to name + Prior escape/return tamed or bonded

• Shows labor by OO (or prior owner)• May want to protect emotional connection

How well does responding to name do these things here?

Amount of labor/connection depends on type of bird.



Responded to name + Prior escape/return tamed or bonded


How well does prior escape/return do these things here?



responded to name + Prior escape/return tamed or bonded


How well does prior escape/return do these things here?


The original owner retains property rights in an escaped [canarycanary] [animal ferae naturaeanimal ferae naturae]

[that had distinctive crest] [that was marked] [(maintained by OO)] ++[that had escaped and returned once before] ++ [that responded to its name] [that was tamed/had emotional bond to OO][that had been owned for two years][that had been missing for only five days][that OO located day after it was found]


Relevant Factors (OXYGENOXYGEN)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]



• 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



[that had distinctive crest] [that was marked] [that had escaped and returned once before] + [that

responded to its name] + [that had been 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]


Relevant Factors (OXYGENOXYGEN)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?



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?



[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]

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.


Version #2: The original owner retains property rights in an escaped animal ferae naturae that is – tamed and – distinctively marked.


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.

Manning v. Mitcherson:MANY VERSIONS OF

HOLDING• Exact scope of Manning holding necessarily

unclear until Ga. Supreme Court 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?

MINING the MEANING of

MANNING

Relevant LanguageRelevant Language(DQ1.45 & DQ1.47 & (DQ1.45 & DQ1.47 &

Rationales) Rationales) featuring featuring

MEME & OXYGEN & OXYGEN

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. (Top p.40)

POSSIBLE SIGNIFICANCE TO COURT’S REASONING?

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.

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 …


…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 …


…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: OXYGENOXYGEN

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


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


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 lost her property rights 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

RationaleTo 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.


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?


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.


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?


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] [that only traveled a short distance after escape]

Mining Manning ‘s Meaning:DQ1.47: OXYGEN OXYGEN (p.40 last

para.)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


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 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 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.

WHAT IS A MENAGERIE?


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

Why These Animals?


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

NOTE: Menagerie animals again inconsistent with simply relying on “tamed”

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

RATIONALESBased in Labor/Investment

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

RATIONALESBased in Notice to Finder

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: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)

Monday (URANIUM)•First: Apply Manning Factors to Squirrel Hypothetical•Then: Look at Sample Holdings Articulated to Favor Each Party (E-Submissions Assigned on Next Slide)

Mining Manning ‘s Meaning:DQ1.48 URANIUMURANIUM E-

ParticipationE-Mail Holding to Me by 3pm

SaturdayFor Amy: •Cardenas•Larey•Osceola

For Brandon: •Ferrer•O’Neil•Pimentel

Albers v. E.A. Stephens & Co.:Important Case (Most of Next Week)

• 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 &

do Self-Quiz– Compare to Kesler (similar facts but different

reasoning)

Mullett v. Bradley

DQ1.49: DQ1.49: MullettMullett Facts & Facts & ManningManning Factors Factors (Uranium)(Uranium) We’ll Do It We’ll Do It

My Way !!My Way !!

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


Mullett• Taming (or Other Investment in Animal)• Evidence Here?


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?


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)


Mullett• Marking (or F Likely Aware of OO)• Evidence Here?


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.)– To Identify Animal?– As Notice to Finder of Prior OO?


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)


Mullett• Emotional Bond: No Evidence at

All

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


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


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


Mullett• Short Time/Distance from Escape– Captured ~2 Weeks/70 Miles from

“Home”• Cf. Manning: 5 days/Nearby in Same Town

Significance?


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 (cf. Seattle Ventura)


Mullett• Short Time/Distance from Escape• Claimed by OO 1 Year After Found• Cf. Manning: 1 Day After Found

Significance?


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

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

• Factors Together:• Taming: No Evidence (But Lot Taming: No Evidence (But Lot of $$$)of $$$)

• Marking: Good I.D.; Not Strong Marking: Good I.D.; Not Strong re Notice re Notice

• Emotional Bond: No Evidence ofEmotional Bond: No Evidence of

• Short Time/Distance from Short Time/Distance from Escape: Worse than Escape: Worse than Manning, Manning, Especially Year to DiscoverEspecially Year to Discover

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

• Factors Together• Taming: No Evidence of (though $$$)• Marking: Good I.D.; Not Strong re Notice • Emotional Bond: No Evidence of• Short Time/Distance: Worse than Manning,

Esp. Year

Pretty weak case for OO under Manning unless

court considers $$$ investment very important.

Mullett v. Bradley

DQ1.50: KRYPTONDQ1.50: KRYPTONBefore Returning to Brief, We’ll

Examine the Three Factors that the Court adopts from the English

Common Law

DQ1.50: Mullett Factors : KRYPTONKRYPTON

1. Abandonment: If Abandoned, to Finder2. Intent to Return (Animus

Revertendi/AR): If not abandoned & animal has AR, to OO

3. Return to Natural Liberty (NL): If no intent to return, and animal has returned to NL, to Finder


For Each Factor, We’ll:

1.Define & Discuss How to Prove

2.Discuss Why It Is Relevant to OO/F Disputes

3.Discuss Evidence & Outcome in Mullett

4.Later Discuss How It Would Apply to Facts of Manning and Albers


ABANDONMENTDefine & Discuss How to Prove

•No Definition in Case; Usually Means Intentionally Giving Up Property Rights in Something.•Look for act by OO indicating intent to relinquish ownership.•Negligence in caring for the animal or in maintaining possession is insufficient (again, laptops in library).


ABANDONMENTWhy Relevant to OO/F Disputes?

•Typically, we allow people to choose to give up property rights if they want to.

•Maybe unfair to return to OO, esp. if F aware of act of abandonment or has invested in animal.


ABANDONMENTEvidence & Outcome in Mullett

•Evidence of Abandonment Here?

DQ1.50: Mullett Factors : KRYPTONKRYPTON:


•Evidence of Abandonment Here?– Investment, but low commercial value– Left unenclosed on island– No pursuit –BUT court says reasonable to think couldn’t find.

Why Not? Should it Matter?



•Evidence of Abandonment Here?– Investment, but low commercial value– Left unenclosed on island– No pursuit –BUT court says reasonable to think couldn’t find.

Outcome in Mullett?


ABANDONMENTOutcome in Mullett? (see last para. p.44)

[C]ounsel for the defendant [suggested] that the animal had been abandoned by the plaintiffs …. It is, however, unnecessary to pass upon this, in view of the conclusion to which we have come that the plaintiff had lost his right of property in the sea lion [because] it had regained its natural liberty without any intention of returning.


ANIMUS REVERTENDI (AR)Define & Discuss How to Prove

•Animus Revertendi is “Intent to Return” in Latin. In this context, means animal (that is out of OO’s immediate control) intended to return home

How do you prove what goes on in mind of animal?


ANIMUS REVERTENDI (AR)Define & Discuss How to Prove

•Animus Revertendi is “Intent to Return”

•Blackstone: Can “only” show by “usual custom of returning.”

Why Relevant to OO/F Disputes?


ANIMUS REVERTENDI (AR)Why Relevant to OO/F Disputes?

•Shows labor/training by OO •Shows connection betw OO and animal•Reasonable for OO to let loose

Evidence in Mullett?


ANIMUS REVERTENDI (AR)Evidence & Outcome in Mullett

•Evidence– No prior returns– Leaves soon after placed on island– Travels 70 miles in 2 weeks with no return

•Outcome?


ANIMUS REVERTENDI (AR)Evidence & Outcome in Mullett

•Evidence– No prior returns– Leaves soon after placed on island– Travels 70 miles in 2 weeks with no return

•Outcome = No AR– Doesn’t appear to have been contested, so not a separate issue in case.


Return to NATURAL LIBERTY (NL)Court Defines NL:

•NL = “that which the animal formerly enjoyed, namely, to provide for itself, in the broadest sense which the phrase may be used.”•Regained NL = “when, by its own volition, it has escaped from all artificial restraint and is free to follow the bent of its natural inclination.”

How Would You Prove?


Return to NATURAL LIBERTY (NL)Proving NL:

•Look at Condition of Animal When Found– Is It Healthy?– Has It Survived for a While?

•Look at Biology of Animal– Where Does It Usually Live? (Climate/Habitat)– What Does It Eat?


Return to NATURAL LIBERTY (NL)Court Defines NL:

•NL = “that which the animal formerly enjoyed, namely, to provide for itself, in the broadest sense which the phrase may be used.”•Regained NL = “when, by its own volition, it has escaped from all artificial restraint and is free to follow the bent of its natural inclination.”

Why Relevant to OO/F Disputes?


Return to NATURAL LIBERTY (NL)Why Relevant to OO/F Disputes?

Note that court doesn’t explain this.

•Labor/Control: OO should control (confine or pursue). If animal gets far enough away from control that it can take care of itself, OO loses.•Notice/Certainty: If animal in place that ordinary finder wouldn’t know of prior owner, OO loses


Return to NATURAL LIBERTY (NL)

What exactly is at issue in Mullett?


Return to NATURAL LIBERTY (NL)What exactly is at issue in Mullett?

Can animal be in natural liberty even if not natural habitat? Court says yes.

Mullett provides definition and result w/o explanation. (Insufficient for you!)


Return to NATURAL LIBERTY (NL)Court says can be NL even if not natural habitat.

Fit w purposes of Rule that, if NL F?•Labor/Control: OO should control (confine or pursue). If animal gets far enough away from control that it can take care of itself, OO loses.•Notice/Certainty: If animal in place that ordinary finder wouldn’t know of prior owner, OO loses

ELEMENTS B POWER POINT SLIDES Class #14 (Extendo-Class) Friday, September 25, 2015.

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Transcript of ELEMENTS B POWER POINT SLIDES Class #14 (Extendo-Class) Friday, September 25, 2015.