Bartlett v. Budd

United States District Court for the District of Massachusetts · 1868 · Property

Propertypropertyferae naturaecapturepossessionwhaling customusageanchor

Facts

The dispute concerned a whale found adrift in the ocean. The whale had an anchor attached to it, and the court treated the ownership of the whale as standing on the same footing as the ownership of that anchor. The respondents claimed a usage that an adrift whale belongs to the finder unless the first taker appears and claims it before the whale is cut in. The libellants' evidence asserted that this usage applies only when the only marks are harpoons or irons, not when there is an anchor or other sure sign of actual capture.

Issue

Whether a whale found adrift belonged to the finders under whaling usage, or instead remained the property of the original takers because it bore a definite mark of actual capture. The court also considered whether the case sounded in salvage or conversion.

Rule

A whale, being ferae naturae, does not become property until the taker has established firm and complete possession. Once possession is firm and complete, the right of property is clear and has all the characteristics of property. A usage awarding an adrift whale to the finder does not govern where the whale bears a definite mark of actual capture, such as an anchor or other sure sign of appropriation.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Off the coast of Alaska, Nora Pike's crew struck a whale, fastened a heavy anchor line to it, and later lost sight of it in rough weather. Two days afterward, Eli Mercer found the whale drifting with Nora's anchor still attached and towed it to Kodiak for sale as his own.

Who has the better property claim to the whale?

Explanation. A whale, as ferae naturae, becomes property only when the first taker has established firm and complete possession. Under the majority opinion, an anchor or other sure sign of actual capture shows appropriation sufficient to treat the whale like other owned property. A custom giving adrift whales to finders does not apply where such a definite mark is present.