Question and Answer: Briefing Ghen v. Rich
The claimant who was a fisherman used his bomb-lance to shoot a fin-black whale on a beach. The bomb-lance was meant to mark the fish as belonging to him his property. The fish on being shot sank to the ocean bottom but was washed ashore some days later upon which the defendant, a hunter, killed and took the fish for an auction sale as his. The custom of the community dictated that whoever found a whale with a mark was to notify the owner who was expected to pay the finder a fee for having found it. The defendant did not do this. The plaintiff sued.
Issue
Is title to a whale (property) rather than physical possession acquired when a plaintiff catches a wild animal as dictated local customs or usage?
Court’s holding
Yes, as long as the local usage or custom is reasonable, title passes to the plaintiff who catches the animal in accordance with the custom.
Rule
The party who apprehends or appropriates a wild beast in line with custom acquires valid and incontestable title to that animal which becomes his or her property.
Reasoning of Court
The local usage custom was reasonable, and the plaintiff had expended too much physical work, money and time into catching the otherwise difficult to catch whales.
Effects of Court’s Ruling
The major effect of the ruling, in this case, is that it indicates how the law appreciates, recognizes, and protects intellectual, physical, monetary, and timely resources in the acquisition of property by individuals. I expect businesses and individuals to behave in a way that takes into account the input that others have put into the preservation and acquisition of property and respect that effort.
These prospective effects are good for the individual actors and economy as a whole since they ensure that there is efficiency in the acquisition and disposal of title to resources or property. In short, I think the judge, in this case, got it right since to rule in the defendant’s favor would hurt not only the fishing industry and the economy but also the fishing or property rights of individuals. As the court explained while following Bartlett v. Budd (1868) and Taber v. Jenny (1856), as long as a fisherman has done all that is possible to make the fish his by shooting it and does this within the dictates of a customary usage that is reasonable or valid, the property in the animal should belong to the plaintiff who did most of the work of incapacitating the fish.
Reference
Ghen v. Rich (1881) 8 F. 159
