Ghen v. Rich case brief

Ghen v. Rich
Property Law Case Brief

Subject: First Possession.

Case Overview:
Ghen (P) sued Rich (D) for possession of a whale that Ghen had killed but which had been sold to Rich after it was discovered by a third party.

Case Facts:
Ghen, a whaler, had killed the whale in question with the intention of profit- ing from the sale of its blubber. Because a freshly killed whale immediately sinks, a whaler cannot immediately gain possession of the whale. Rather, the whaler must wait for the whale to float back to the surface or to wash up on shore. Because a whale may drift a significant distance before reappearing, the whaling industry had developed a system for recognizing the ownership of any particular whale. Each whaling company placed special markings on its lances, so that any whale found pierced with such lances could be identi- fied as that company’s property. According to industry custom, the finder of a whale would report its location to the whaling company in exchange for a salvage fee. One Ellis, upon finding the whale that Ghen had killed, did not follow this custom. Rather, he sold it at auction, where Rich purchased it.

Issue:
Should a wild animal marked, in accordance to custom, as the property of a particular individual be recognized as such even though a third party has already found that animal and sold it to another person?

Holding:
Such markings should be recognized.

Analysis:
The courts have consistently held that marking an animal which cannot be immediately retrieved suffices to establish ownership of that animal. The whaling industry would cease to exist if this rule were overturned, as no one would have any incentive to hunt whales if any individual could simply find and sell the carcass.

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