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Ghen v. Rich, US District Court, District of MA, 1881 Does the shooting of the whale in the customary way establish possession? Issue Reasoning Rule
Taber: When a whale is killed and anchored and left with marks of appropriation, it is the property of the captors even if the whale drags from its anchorage. Bartlett: When possession is firm and complete, the right of property is clear. Taber & Bartlett: property acquired by first taker by actual possession and appropriation. Usage is reasonable. Public Policy: The industry grown up under it. unless usage is sustained, no person would engage in the business if the fruits of his labor could be appropriated by any chance finder. Swift: Custom: the iron holds the whale
Facts
Ghen shot and killed a whale with bomb-lance identifying Ghen as the shooter. The Whle sank and 3 days later surfaced on the beach. A 3rd party found the whale and sold it to Rich. When Ghen heard of the find, he reclaimed but after Rich had shipped off the blubber and extracted some oil from it. It was the custom that the killer of a whale is the owner and when a 3rd party found a whale, he notified the killer and got a finder’s fee.
Dissent Held Procedure P argues D argues
For Ghen in amount of value of oil – cost of trying it out and preparing for the market + interest for every day of conversion. No court costs. Ghen sued to recover value of the whale.