Ghen v. Rich
Encyclopedia
| Ghen v. Rich | |||
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United States District Court for the District of Massachusetts United States District Court for the District of Massachusetts The United States District Court for the District of Massachusetts is the federal district court whose jurisdiction is the Commonwealth of Massachusetts, USA. The first court session was held in Boston in 1789. The second term was held in Salem in 1790 and until 1813 court session locations... |
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| Filed | |||
| Decided | April 23, 1881 | ||
| Case name | Ghen v. Rich | ||
| Citations | 8 F. 159 (1881) | ||
| Holding | it was unreasonable to expect the whaler to wait for the whale to return to the surface and therefore the whaler who killed the whale retained his claim to the property | ||
| Judge | Thomas Leverett Nelson Thomas Leverett Nelson -Early life:Thomas Nelson was born in Haverhill, New Hampshire, March 4, 1827, one of twelve children of John and Lois Leverett Nelson. Nelson attended Kimball Union Academy in Meriden, New Hampshire and Dartmouth College. After two years at Dartmouth, he enrolled at the University of Vermont in... |
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| Laws applied | |||
Ghen v. Rich, 8 F. 159 (1881)
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
, is a famous American
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
property law
Property law
Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...
case from the United States District Court for the District of Massachusetts
United States District Court for the District of Massachusetts
The United States District Court for the District of Massachusetts is the federal district court whose jurisdiction is the Commonwealth of Massachusetts, USA. The first court session was held in Boston in 1789. The second term was held in Salem in 1790 and until 1813 court session locations...
involving ownership of a dead whale
Whale
Whale is the common name for various marine mammals of the order Cetacea. The term whale sometimes refers to all cetaceans, but more often it excludes dolphins and porpoises, which belong to suborder Odontoceti . This suborder also includes the sperm whale, killer whale, pilot whale, and beluga...
. The case is frequently used to illustrate the difficulties of establishing "possession" and ownership
Ownership
Ownership is the state or fact of exclusive rights and control over property, which may be an object, land/real estate or intellectual property. Ownership involves multiple rights, collectively referred to as title, which may be separated and held by different parties. The concept of ownership has...
under the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
.
Facts and holding
This 1881 case decided ownership of a dead Finback whaleWhale
Whale is the common name for various marine mammals of the order Cetacea. The term whale sometimes refers to all cetaceans, but more often it excludes dolphins and porpoises, which belong to suborder Odontoceti . This suborder also includes the sperm whale, killer whale, pilot whale, and beluga...
(Balaenoptera physalus). The whale was killed by the libellant (plaintiff) Ghen’s bomb lance
Harpoon
A harpoon is a long spear-like instrument used in fishing to catch fish or large marine mammals such as whales. It accomplishes this task by impaling the target animal, allowing the fishermen to use a rope or chain attached to the butt of the projectile to catch the animal...
which left a distinctive mark in the whale. The whale washed up on the shore
Shore
A shore or shoreline is the fringe of land at the edge of a large body of water, such as an ocean, sea, or lake. In Physical Oceanography a shore is the wider fringe that is geologically modified by the action of the body of water past and present, while the beach is at the edge of the shore,...
17 miles from Cape Cod
Cape Cod
Cape Cod, often referred to locally as simply the Cape, is a cape in the easternmost portion of the state of Massachusetts, in the Northeastern United States...
and was found by Ellis, who then auctioned
Auction
An auction is a process of buying and selling goods or services by offering them up for bid, taking bids, and then selling the item to the highest bidder...
off the whale to Rich, the defendant. Finback whales generally sink after being killed, and it takes time for the whale to resurface. According to the custom
Custom (law)
Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Customary law exists where:...
of the time, dead whales were retrieved from the shore
Shore
A shore or shoreline is the fringe of land at the edge of a large body of water, such as an ocean, sea, or lake. In Physical Oceanography a shore is the wider fringe that is geologically modified by the action of the body of water past and present, while the beach is at the edge of the shore,...
after 2-3 days, and the finder identified the whaling
Whaling
Whaling is the hunting of whales mainly for meat and oil. Its earliest forms date to at least 3000 BC. Various coastal communities have long histories of sustenance whaling and harvesting beached whales...
company that had made the kill from the unique mark of the bomb lance. The finder would then notify the whaling company by calling Provincetown and in return receive a finder's fee. In this case, it was unclear whether the whaler or the person who discovered the washed up whale owned the animal
Animal
Animals are a major group of multicellular, eukaryotic organisms of the kingdom Animalia or Metazoa. Their body plan eventually becomes fixed as they develop, although some undergo a process of metamorphosis later on in their life. Most animals are motile, meaning they can move spontaneously and...
. The U.S. District Court of Massachusetts decided that it was unreasonable to expect the whaler to wait for the whale to return to the surface and therefore the whaler who killed the whale retained his claim to the property according to the custom under the prior common law and case law. The trial judge found, "If the fisherman does all that is possible to do to make the animal his own, that would seem to be sufficient [to give that fisherman full owenership]." Request for trover
Trover
Trover is a form of lawsuit in common-law countries for recovery of damages for wrongful taking of personal property. Trover belongs to a series of remedies for such wrongful taking, its distinctive feature being recovery only for the value of whatever was taken, not for the recovery of the...
of the whale granted to Ghen.