Ghen v. RichU.S. district court, Mass., 1881

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(federal law, trial court, another old case)

Location in Course Outline

· Acquisition by First Succession

o Acquisition by capture

§ Capture on public lands

· Exception to rule Limited custom affecting few people

Parties

· Original Plaintiff Ghen, Whale killer

· Original Defendant Rich, Whale purchaser

Facts

· Whale killing

o Ghen, who was in the fishing business of killing fin-back whales, shot and immediately killed the relevant whale using a bomb-lance. It sunk.

· Whale finding

o Then three days later ended up on a beach where a guy named Ellis found the whale

· Whale selling

o Instead of notifying Ghen, he auctioned it off to the highest bidder, who was Rich. Rich extracted the blubber to use for oil and sold it.

· Constructive Notice

o Though neither Ellis nor Rich knew that Ghen killed the whale they knew, or should have known, then it was killed by a whale killer in the industry.

Procedural History

Trial level opinion

o Ghen sues in federal trial court, claiming title to the whale.

Disposition

· Plaintiff wins.

Question Presented/ Issue & Holding

· Question Presented

o When will the court use a long-established custom followed in an industry as an exception to the general dominion and control rule established in Pierson for the acquisition of title by capture in wild animals on public property?

· Holding

o An exception may be granted when the custom is of very limited application, will affect by a few persons, has been followed for a long time by people in the industry, and when the survival of the industry is dependent upon it.

Analysis

I. Precedent

A. Case law

1. Taber v. Jenny & Bartlett v. Budd

a. Whale Killing; Appropriation Marks

(a) Both cases involved a whale that had been killed and left with marks of appropriation.

(b) The killers had done everything possible given the technology of the time to appropriate the whale from nature and make it their own.

b. Actual Possession / Appropriation

(a) Both cases were decided not on custom but on the ground that the first taker had acquired the property by actual possession and appropriation.

B. Swift v. Gifford

1. Arctic Sea Custom

a. Case was decided based on custom. There was a custom among Arctic sea whalers that it was sufficient to claim a property right in the whale if the whaler had attached an iron to the whale.

. Exception Long-established, industry-wide impact

a. Allowed an exception for a long-established custom that covered an entire business and had been followed for a long time by those engaged in that business.

. Limited Application

a. p. 8 Law of "very limited application" affecting only the whale fisher industry.

II. Exception to the Rule

A. Custom of limited application

1. Comparable to Swift p. 8

a. "I see no reason why the usage proved in this case is not as reasonable as that sustained in the cases cited.

b. Its application must necessarily be extremely limited, and can affect but a few persons.

c. It has been recognized and acquiesced in for many years."

. Compare to Pierson Dissent

a. FN 11, p. Compare Dissent in Pierson. Would pursuit custom among hunters have affected but a few persons?

III. Public Policy, survival of an industry

A. All thats possible to appropriate

1. p. 8 "It requires in the first taker the only act of appropriation that is possible in the nature of the case.

B. Labor incentives in industry

1. Unless it is sustained, this branch of industry must necessarily cease, for no person would engage in it if the fruits of his labor could be appropriated by any chance finder."

Conclusion

· Facts whale case

· Custom Exception to rule on public property as established by Pierson small custom affects a limited number of people

· Public Policy policy about allowing industry to exist.

-the custom in the industry don't consider other's around; such as (save the whale)

Keeble v. Hickeringill

Queen's Bench, 1707

(Old English Court, famous case, cited indirectly in Pierson about a century later)

Acquisition by First Succession

Acquisition by capture

Wild Animals on private land

Constructive possession rationali soli

Right to use private land for profit

Parties

· Original Plaintiff Keeble, owner of land and duck decoy business

· Original Defendant Hickeringill, neighboring landowner, frightener of birds

Facts

o Landownership

o Plaintiff owned land

o Build Business

o Plaintiff spent money building a duck decoy pond and paying laborers to work it.

o In order for the system to work well and lure in wild birds, there needed to be quiet.

o Malicious noise-making

The defendant discharged gunpowder with the intent of the noise and small driving away the wildfowl.

Procedural History

· Trial Plaintiff Winds

o The duck pond owner sued for damages, and the lower court found for the plaintiff.

Disposition

· Affirmed.

Question Presented/ Issue & Holding

· Issue

o What rights did the landowner have to acquire property interests in the wild birds through capture while the wild birds were on his land?

· Holding

o Not decided on basis of rationali soli

o Landowner had right to use his land to make a profit and to be free from a malicious interference with trade.

Analysis

I. Precedent

A. Analogy to ancient school, case from 1410 (p. 1)

B. Fair Competition v. Unfair Interference

1. OK to open up a rival school and compete for students

. Not OK to scare away students by making parents withdraw students from first school due to fear for their children's safety.

II. Constructive possession Not discussed by court

A. Brought up by casebook in the notes section

1. Rationali soli means the owner of land has constructive possession of wild animals while they are on the land

. Temporary prior possessors

a. Landowners are the prior possessors until the wild animals leave their land

III. Public Policy, p. 1

A. Lawful Activity

1. Operating a duck decoy pond is a lawful activity.

B. Profit Right

1. Landowners have a right to use their land for a profitable purpose

. Right to not be unfairly prevented from doing so

C. Fair Competition

1. Landowner does not have right to be protected from fair competition, such as Hickeringill opening up a rival duck decoy pond business.

. This promotes good things such as lower prices, better service, better capture methods, etc.

. All the reasons people in capitalist systems think competition is good.

D. Unfair Interference with trade

1. What is not OK is a "violent or malicious act"

. Notes question, pp. 4-5

a. Greenpeace or other animal/environmental activists

o Interference with sport as opposed to trade, hunting on public rather than private land

o First Amendment issues

Conclusion

· Facts Duck pond case

· Distinguish from Pierson & Ghen Constructive possession of wild animals while on a private property owner's land

Policy fair competition okay but malicious conduct is not

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