MY DOGS ARE FOUND Tchaikovsky, Symphony #4 (1880) Berlin Philharmonic (von Karajan 1977)

MY DOGS ARE FOUNDMY DOGS ARE FOUND Tchaikovsky, Symphony #4 (1880)

Berlin Philharmonic (von Karajan 1977)

LUNCH TODAY @ 12:05

1. Daley

2. Fasano

3. Figueroa

4. Goolsarran

5. Keenen

6. Solomon7. Wright

LUNCH THURS @ 12:25

1. Aybar-Landrau

2. Bucci

3. Franco

4. Klema

5. Reger

6. Weegman

7. Woodard

Using Factors (or Elements)

1. Assume Each There for Separate Reason2. For Each:

– Identify Kinds of Facts that Are Relevant– Look for Explicit Definitions– Look for Explicit & Implicit Policy

Justifications

3. If significant arguments for both parties, try to resolve with:

– Use of Definition– Comparisons to Use of Factor in Prior Cases– Purpose of Factor (Policy Justifications)

Mullett Factors

1. Abandonment: If Abandoned, to Finder

2. 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

Application of Mullett Factors

FOR EACH:

• Recap of Mullett itself

• Recap of application to Manning & continuation of DQ43 (Calcium)

• Application of Factors to Facts of Albers DQ50 (Phosphorus)

(1) ABANDONMENT

• Look for act by OO indicating intent to relinquish ownership

• Negligence in caring for the animal or in maintaining possession is insufficient.

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

(1) ABANDONMENT

MULLETT• Investment, but low commercial value• Left unenclosed on island• No pursuit (BUT court says reasonable to think hopeless)

COURT DOESN’T DECIDE

MANNING• Strong emotional

bond• Pursued as soon as

had info

NO EVIDENCE OF

ABANDONMENT

(1) ABANDONMENT

In Albers?

PHOSPHORUS

(2) INTENT TO RETURN

• Animus Revertendi in Latin (AR)

• Did the animal intend to return home?

• Blackstone: You know by “usual custom of returning.”

• Shows labor/training by OO & connection betw OO and animal


MULLETT• No prior returns• Travels 70 miles in 2 weeks with no return

COURT SAYS NO

MANNING• One prior return (not a

“custom”)• Away 5 days • In same town; flew into a

different house

PROBABLY NOT W/O MORE EVIDENCE RE

SWEET OR CANARIES


In Albers?

PHOSPHORUS

(2) RETURN TO NATURAL LIBERTY

• Mullett: Can be natural liberty (NL) even if not natural habitat

• Raises Kerrigan Q from Monday: Why should we say NL if thousands of miles from habitat

• Mullett provides definition and result w/o explanation

(2) RETURN TO NATURAL LIBERTY

Possible explanations for Mullett:

• Labor/Control: 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

DQ43 (CALCIUM): Apply Natural Liberty Element to Manning

Definition: “to provide for itself, in the broadest sense which the phrase may be used. … [W]hen, by its own volition, it has escaped from all artificial restraint and is free to follow the bent of its natural inclination.”

RELEVANT FACTS & Qs


RELEVANT FACTS & QUESTIONS?

• Time Before Recapture = 5 days

• Found in Brown’s Kitchen

• Area Similar to Natural Habitat?–Able to Find Food in Area?

–Able to Survive Weather in Area?


PURPOSE(S) OF RULE

• Protect Ordinary Finder Who Can’t Tell if Prior Owner

• Punish Owner Who Didn’t Sufficiently Enclose and/or Pursue

DQ50 (PHOSPHORUS): Apply Natural Liberty Element to Albers

Definition: “to provide for itself, in the broadest sense which the phrase may be used. … [W]hen, by its own volition, it has escaped from all artificial restraint and is free to follow the bent of its natural inclination.”

DQ50 (PHOSPHORUS): Apply Natural Liberty Element to Albers

Note that Supreme Court of Colorado must believe that fox returned to natural liberty or no reason to create exception to Mullett rule.

ISSUE/HOLDING: MULLETT

• Did the trial court err in dismissing plaintiff’s case because the owner of an escaped sea lion retains property rights in the animal when it escapes with no intent to return into the Atlantic, where the Atlantic is not its natural habitat?

ISSUE/HOLDING: MULLETT

• No, the trial court did not err in dismissing plaintiff’s case because the owner of an escaped sea lion does not retain property rights in the animal when it escapes with no intent to return into the Atlantic, even though the Atlantic is not its natural habitat.

NARROWING/BROADENING HOLDINGS

• Narrowest Version of Holding Essentially Includes All Facts of Present Case

• Broader Holding Covers More Future Cases

• Broaden Holding by (either or both of):– Making References to Some Facts More

General– Eliminating Some Facts

ISSUE/HOLDING: MULLETT• The owner of an escaped sea lion does

not retain property rights in the animal when it escapes with no intent to return into the Atlantic, even though the Atlantic is not its natural habitat.

• The owner of an escaped animal ferae naturae does not retain property rights in the animal when it escapes with no intent to return to a place where it is free of all artificial restraint and can provide for itself.

SAMPLE SUBSTANTIVE HOLDING: MANNING

The original owner retains property rights in an escaped [canary]

[that had been owned for two yrs]

[that responded to its name]

[that has escaped and returned before]

[that had distinctive crest]

[that had been missing for only five days]

[that owner located day after it was found]

SUBSTANTIVE HOLDING: MANNING

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

[that had been owned for two yrs][that responded to its name] [that has escaped and returned before] [that had distinctive crest] [that had been missing for only five days][that owner located day after it was found]

DQ45 (Zinc) Facts Factors

POSSIBLE RELEVANCE OF:






[that had been owned for two yrs] [that responded to its name] [that has escaped and returned before] [that had been tamed][that had distinctive crest] [that had been missing for only five days][that owner located day after it was found]



[that had been owned for two yrs] [that responded to its name] [that has escaped and returned before] [to which she had a substantial

connection ]




DQ51 (PHOSPHORUS)

How does Albers characterize the holding in Manning?

Do you think it is correct?


POSSIBLE RELEVANCE OF:[that had distinctive crest]



[that had been owned for two yrs][that responded to its name] [that has escaped and returned before] [that had distinctive crest]

[clearly marked][that had been missing for only five days][that owner located day after it was found]


POSSIBLE RELEVANCE OF:









[that had been missing for only five days] [that owner located day after it was found] [that was found a short time after escape]


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.


The original owner retains property rights in an escaped animal ferae naturae that is tamed and distinctively marked.


Why play with broad and narrow holdings?

To characterize the meaning of the case in subsequent

argumentsNext Wednesday: DQ49 Squirrel Hypothetical MERCURY & NEON

DQ44 (ZINC)

• Exact scope of Manning holding unclear

• Use other language from case to flesh out

DQ44 (ZINC): Mining Manning’s Meaning

Significance of…?:

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.

Is Taming Enough? (pp.36-37)…the bird in controversy was shown to have been 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, who had kept it in confinement ever since. ¶ 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.

MY DOGS ARE FOUND Tchaikovsky, Symphony #4 (1880) Berlin Philharmonic (von Karajan 1977)

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