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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American dream

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The American dream can mean different things to different people. Throughout the generations the most common interpretation of this dream is one of a persons ability to leave his troubles behind and start fresh. In the book The Great Gatsby the author, F. Scott Fitsgerald, uses the characters to express his view of the American dream.

Nick Caraway, the narrator of the book, has a dream of working hard and making his own way. He dose not want any charity. Nick's family is very successful in the wholesale hardware business. They have been in the business for generations. Nick states "My family has been prominent well-to-do people … for generations"(7). Nick dose not wish to follow the path of easy wealth, the path where everything will be handed to him. Nick says "I decided to go east and learn the bond business"(7). Nick has chosen his own path to success and wealth. He wants to be independent from his family and everyone else. Nick has moved away to start from scratch and go his own way.

George Wilson wants to leave all his troubles behind and start fresh. George found out his wife was cheating on him. George does not know what else to do but to leave town. George states, "I've been here too long. I want to get away. My wife and I want to go west" (10). George was extremely upset by the news of adultery. So much so he became physically ill. His life was not working out so he wanted to begin a new one. He decides to uproot and leave.

Jay Gatsby, the main character, dreams of having a picture perfect life with Daisy. Gatsby is in a heated argument with Tom when he declares "your wife doesn't love you…She's never loved you. She loves me" (17). Gatsby longs for a life where he is the only man Daisy ever loved. Gatsby wants this perfect life so bad he is blind to the reality around him.

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These are Fitsgerald's views of the American dream. He has a dream of the ability to start fresh and be independent from everyone; a dream of a life free from troubles. All thought, one must remember the American dream goes beyond F. Scott Fitsgerald. The American dream has lasted through the generations; back to a time when the first settlers came to the Americas. It is these settlers who originated the American dream and all it has influenced.

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The Unredeemed Captive

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RTU 1W, W, W, 1E, E, E

General This sequence applies to RTU 1W, W, W, 1E, E, E, which consists of a outside air damper, variable speed fan; cooling coils, and filter section.

RTU Control When any box associated with the RTU is in the occupied mode or is scheduled to be on then the unit is commanded on. The RTU factory controller then command and control the variable speed fan, the cooling stages and the outside air damper.

Monitoring Signals The DDC system is monitoring the static pressure, the discharge air and return air temperatures thru duct sensors. Also is monitoring the filter alarm thru a differential pressure switch.

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VAV Boxes with no Heat no Fan

General These units consist of a variable air volume damper and related controls for variable air volume pressure independent temperature control.

Unit Controls The terminal unit DDC controller shall be activated whenever the RTU serving the terminal unit is running. An analog temperature sensor sensing the space temperature and an airflow sensor in the terminal unit sensing total unit airflow volume shall provide inputs to the terminal unit DDC controller which shall modulate the terminal unit VAV damper, subject to scheduled maximum and minimum cfm limits (operator adjustable), to maintain the space temperature set point (operator adjustable). Upon terminal unit shutdown, corresponding to shutdown of the RTU serving the terminal unit, the unit VAV damper shall close.

Zone temperature sensors shall include a space occupant accessible setpoint adjustment feature, which shall allow a 4°F (individually programmable by unit) occupant setpoint adjustment and a momentary contact pushbutton (individually programmable by unit) to initiate after hours override operation. After hours operation button shall activate RTU serving the terminal unit for a programmable time period (if unit is not operating) and change the terminal unit to normal operation (if unit is in after hours mode) for the same time period.

VAV Boxes with Heat and Series Fan

General These units consist of a variable cold air volume damper, a constant volume discharge fan, an electric heating coil and pressure independent temperature controls. The fan shall run continuously when the unit is active such that the air volume to the space is constant and only the cold air volume varies.

Unit Controls The terminal unit DDC controller shall be activated whenever the RTU serving the terminal unit is running. The terminal unit fan shall operate whenever the unit is activated. An analog temperature sensor sensing the space temperature and an airflow sensor sensing the cold air damper airflow volume shall provide inputs to the terminal unit DDC controller which shall modulate the VAV damper, subject to scheduled minimum and maximum cfm limits (operator adjustable), and energize the stages of electric heat via digital outputs to maintain the space temperature set point (operator adjustable). The electric heat shall not energize until the VAV damper is in its minimum position. Upon terminal unit shutdown, corresponding to shutdown of the RTU serving the terminal unit, the unit cold air VAV damper shall close and the unit fan shall stop.

Zone temperature sensors shall include a space occupant accessible setpoint adjustment feature, which shall allow a 4°F (individually programmable by unit) occupant setpoint adjustment and a momentary contact pushbutton (individually programmable by unit) to initiate after hours override operation. After hours operation button shall activate RTU serving the terminal unit for a programmable time period (if unit is not operating) and change the terminal unit to normal operation (if unit is in after hours mode) for the same time period.

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You are what you eat...

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Roman Cuisine

The images of emperors, aristocrats and paramours feasting in decadent banquet style are the enduring images most have of Roman cuisine. Rich dainties, flowing purple robes and wines are surely very glamorous. But the story of ancient dining is a story that begins in the fields of Italy and from the sea. It reaches from the farthest corners of the Empire, to the stews of the Suburb and even down through the centuries to Colonial America.

Ones customs and diet mostly depended upon their geographical location and their standard of living in Ancient Rome. Most Romans ate lightly, sparingly on a diet based upon grains, oil and water, the more exotic foods gracing only the tables of the wealthy. For example a poet, Juvenal describes one meal at a dinner party, "OHT". It is known that rich Romans would eat whole plates of peacock tongues. Today, such a meal would make our stomachs churn but in Rome this was considered a very unique meal, a delicacy perhaps. One complicated meal involved stuffing a chicken inside a duck, then the duck inside a goose, then the goose inside a pig, then the pig inside a cow, and cooking the whole thing together. Appalling or appetizing? You decide?

Cereal grains were the staple food. Next to the vegetables so important to the Romans, the foremost crop was frumentum, which was wheat, being one of the major sources of food, either baked into bread or boiled into a porridge. In addition to wheat and vegetables, strongly flavoured sauces, as well as spices and herbs were used generously by the Romans. Olives were another most important crop. The olives were eaten, but most importantly, their oil was used extensively in cooking and for other purposes such as fuel for lamps, perfume and body oils. Grapes were also extensively refined, their main fruit substance, and of course, the wine that nearly all Romans, wealthy or poor drank well watered down or mixed with honey at every meal. The remains of the grapes left after making wine was used as a preservative for foods. Meat was used sparingly by the majority of Romans. During the early Republic, it had been eaten only when an animal was sacrificed to the gods. Later, meat was used more often, a small amount added to the daily porridge, a chicken or a pig slaughtered on the farm to feed the family. From the time of Augustus, meat and fish, which was usually a very expensive item, became a daily item in the diets of most of the wealthy Romans. Many varieties of meat began to be consumed at dinner parties of the wealthy, such as peacock brains, bear, lion, and lark tongues. As Rome expanded her Empire, the variety of foods available to those who could afford them increased. As the population grew so did the demand for more and more grain. Much grain was imported from the provinces and territories, such as Egypt. Other imported foods included spices for Northern Africa, wild animals from Spain, wine from various areas, oysters from Britain, and honey from Greece. Evidence of food uses and types generally comes to us from ancient authors, archaeologist who discovered seeds, animal bones etc…, and paintings of the times. The only work of any length about ancient Roman cooking is the cookbook of Apicius.

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(OHT) This picture here is a recreation of a country kitchen. (READ OHT)

The dining room of the Romans was called the triclinium. Formal eating from the wealthier of Romans was reclining on their left elbows. An interesting aspect of the Roman dining was that they ate sitting on a couch around a table called the mensa. Before placing the food on the mensa it was cut up into small pieces. Romans ate with their right hand. Forks had not appeared, but knives and spoons were used. Waiters were mainly male. Jobs they were expected to complete ranged from pouring cold water and bringing hot towels to washing the diners hands and feet and tying garlands around the heads of guests. They were also responsible for cleaning away food spat out or thrown as spitting or throwing food was a Roman tradition. (OHT) Here we see a platform arranged to form three sides of a square and this explains why their dining room was actually called the Triclinium because when the word is split, tri, meaning three and clinium, meaning reclining places room, hence triclinium means "three reclining places room". This platform would have been spread with pillows to allow for comfortable reclining. There was a strict protocol to the placement of diners. The family reclined on the right, with the host at the top. The rest of the platform was for guests, with the middle segment reserved for distinguished guests. The dinner party was a close affair. The houses of the wealthy Romans usually consisted of several dining rooms to fit the seasons. This particular triclinium would have been intended to take advantage of warmer weather; there would have been another more protected triclinium in this house for colder weather. The triclinium below is just a more detailed picture as we see that the walls are covered in paintings and sometimes there were even floor pictures made up of tiny pieces of coloured tiles, called mosaics. These often served as talking points during the dinner.

The order the Romans ate was breakfast, jentaculum, after sunrise. Breakfast consisted of cold meats, eggs, vegetables and bread if you were part of a wealthy family whereas the poorer Roman families only had the luxury of porridge, sometimes a little honey and perhaps a few dates or olives. Lunch, prandium, if eaten at all, consisted of bread, fruit, cheese or perhaps some leftovers from the dinner the night before. Dinner, cena, was the main meal of the day, generally served in the late afternoon. Cena could consist simply of vegetables with olive oil for those of the lower class, or a most elaborate three course meal for the upper or maybe even middle class families. The first course, the "gustus" was the appetizer course, usually eggs, raw vegetables, fish or shellfish, prepared simply, eaten with mulsum which was wine sweetened with honey. The main course, the "prima mensa" consisted of cooked vegetables and meat served with wine. The "secunda mensa" was the sweet course or dessert, consisting of fruits, plain, stuffed and in sauces, honey cakes, nuts and, of course, wine. After dinner drinking was encouraged by serving salty foods. Entertainment included guests singing or reciting, dancers, clowns, gambling and much more…

It is interesting to note that in modern times, we are not so very different from the ancient Romans. Food is an important component in our everyday life. We too eat differently according to our station in life. The wealthier we become, the more elaborately we seem to eat. Just look at the growth in popularity of imported gourmet coffees, specialty food shops and catalogs. We often use our dinner parties or business lunches for that matter, to woo people for our own financial or political gain. But who of us can deny that we too don't enjoy a sophisticated meal every now and again, just like the Ancient Romans. Cornelius Nepos describes Roman cuisine as, (OHT).

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THE revolt of Mother

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FINAL DRAFT - 8 - JUNE 7, 00

14 DISCIPLINE OR DISCHARGE

14.1 DISCIPLINE OR DISCHARGE GENERAL

14.1.1 All disciplinary action, including discharge, must be for just and proper cause.

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14.1. Where disciplinary or discharge action is considered, the employee involved may,

where necessary, be held out of service with pay pending investigation for a maximum of

seven (7) calendar days to provide the Company with sufficient time to investigate and

consider all factors. This time period may be extended by mutual agreement between the

Company and the Association.

14.1. During any investigations or hearings, the employee involved may request the

presence of a representative(s).

14.1.4 For any investigation(s) or hearing(s), all representatives and/or witnesses who

are employees of the Company shall be given time off and transportation as per Section

1.5.1.

14.1.5 When disciplinary or discharge action is taken, the employee will be so notified in

writing, with a copy to the Association, stating the precise charge or charges, the nature

of the action taken, and stating his right to grieve under the provisions of Section 14.1.8

below.

14.1.5.1 An Employee suspended as a result of an Operational incident in his area of

responsibility shall be paid at his regular salary during the investigation and during any

subsequent re-training period however suspensions levied post investigation may be paid

or unpaid at the companies discretion.

14.1.6 Any employee held out of service pursuant to Section 14.1., shall be paid for the

time held out of service. If a pilot is held out of service, he shall be paid for the flight

credits in his block as if they were flown according to schedule, and shall be credited

with such flying time for the purpose of flight time limitations up to the maximum time

limit in 14.1.. In subsequent months, or in the case of a pilot not holding a block, he

shall be paid not less than the normal monthly salary. All such pay shall be adjusted to

include negotiated pay increases, and any incremental pay increases. The above pay

provisions shall continue until the pilot returns to the line or the Company renders a

decision on the pilot's employment status, including unpaid suspension. The pilot shall

continue to bid his monthly schedule in the normal manner.

14.1.7 During the period of his suspension, the employee shall be entitled to bid on any

vacancy so that when and as relieved of his suspension, he shall resume the duties to

which he is entitled by reason of his seniority.

FINAL DRAFT - - JUNE 7, 00

14.1.8 An employee who has been disciplined or discharged may file a grievance in

accordance with the provisions of Section 1 (Grievance Procedure). Throughout these

procedures, including arbitration, no evidence or documents relating to incidents or

matters which occurred more than eighteen (18) months prior to the disciplinary action,

other than those related to flying competency, shall be taken into consideration in the

taking of such action. Said grievance may be initiated at any step of the grievance or

arbitration procedures by mutual agreement between the Company and the Association.

14.1. If at any time the employee is fully exonerated, his record shall be adjusted

appropriately, and he shall be reinstated without loss of seniority or pay.

14.1.10 No employee shall have a misdemeanour noted on his file without receiving

written notice of same.

FINAL DRAFT - 40 - JUNE 7, 00

15 ARBITRATION

15.1 ARBITRATION GENERAL

15.1.1 Where a difference arises between parties relating to the interpretation,

application or administration of this Agreement, including any question as to whether a

matter is arbitrable or where an allegation is made that this Agreement has been violated,

either party may, after exhausting any Grievance Procedure established by this

Agreement, notify the other in writing of its desire to submit the difference or allegation

to arbitration. The Notice of Intention to Arbitrate shall state the matter at issue, the

nature of relief or remedy sought, and the arbitrator proposed by the party submitting the

difference or allegation to arbitration. The notice shall be delivered to the other party with

five (5) working days of the reply under Step of the Grievance Procedure. The recipient

party shall, within five (5) working days, advise the other of the name of its proposed

arbitrator.

When either party wishes to have the difference or allegation referred to arbitration, it

shall be referred to a single arbitrator. If the parties are unable to agree on an arbitrator,

either party may request that the Minister of Labour pursuant to the Ontario Labour

Relations Act appoint an arbitrator.

No person may be appointed as an arbitrator who has been involved in an attempt to

negotiate or settle the grievance.

The Company and the Association will share equally the fees and expenses of the

arbitrator appointed herein.

The arbitrator shall not be authorized to make any decision inconsistent with the

provisions of this Agreement, nor to alter, modify, add to, or amend any part of this

Agreement.

No matter shall be submitted to arbitration if it has not been properly carried through all

the required steps of the Grievance Procedure set out herein.

It is agreed by the parties that the Grievance Procedure set out herein constitutes a final

and binding settlement process and that Employees covered by this Agreement have no

rights of unjust dismissal pursuant to the Canada Labour Code.

15.1. All parties shall be given full opportunity to present evidence either documentary

or oral, make representations, and call, examine, and cross examine witnesses.

Throughout this procedure, the parties shall have the right to be represented by

whosoever they may choose and designate.

FINAL DRAFT - 41 - JUNE 7, 00

15.1. The Arbitrator shall have the jurisdiction to render any decision which he

considers just and equitable. In disciplinary cases, the Arbitrator shall have the authority

to determine whether disciplinary action taken by the Company was for just and proper

cause and whether it was equitable under the circumstances, and shall have the power to

modify a disciplinary action or render such decision as he considers just and equitable, if

it deems such action too severe in relation to the gravity of offence.

15.1.4 The time limits specified in this section may be extended by written agreement of

the parties.

15.1.5 The decision of the Arbitrator shall be final and binding on all parties, and shall

be rendered in writing, with reasons therefore, as soon as possible after the hearing.

15.1.6 When a stenographic transcript is taken of the arbitration hearing, in whole or in

part, the cost will be borne equally by both parties to the grievance. In the event that it is

not mutually agreed that a stenographic transcript of the proceedings shall be taken, any

written record available taken of such arbitration hearing made by either party shall be

furnished to the other party to the grievance on request, provided that the cost of such

written transcript so requested shall be borne equally by both parties to the grievance.

Please note that this sample paper on THE revolt of Mother is for your review only. In order to eliminate any of the plagiarism issues, it is highly recommended that you do not use it for you own writing purposes. In case you experience difficulties with writing a well structured and accurately composed paper on THE revolt of Mother, we are here to assist you. Your persuasive essay on THE revolt of Mother will be written from scratch, so you do not have to worry about its originality. Order your authentic assignment and you will be amazed at how easy it is to complete a quality custom paper within the shortest time possible!