Page:Federal Reporter, 1st Series, Volume 8.djvu/173

 OBEN V. BIOH. 159 �GhEN V. ElOH. {District Courtf D. Matsachueetts. April 23, 1881.) �1. USASB— f^-BAOK WhAI^ FisHBBT. �In the early spring months the; eftStprly part of Massachusetts bciy is fre- quented by fln-back whale. Fishermen from Provincetown pursue them in open bciats from the shore, and shoot. them with bomb-lances flred from guns made eipressly for the purpose. When killed they sink aj; once to the bottom, but in the course Qf from one to three days they rise and float on the surface. The jJerson who hap'pens to flnd theih on the beach usuailly sends word to Prov- incetown, and lie receives a sniall salvage for his services. The business is oif considerable extent, but is engaged in by but few people. Each boat's cM* engaged in the business has its peculiar mark or device on its lances, and thua it is known by whom a wfaala is killed. The usage on Cape Cod, f or tDiany years, bas been thatthe person who killp a -whale^ in the manner and under the circumstances described, owns it. Mdd, that the usage is reasouable and va,lid. �2. Ahimals Pekjb NitTUB.»— Appkopbiation-t-Titlb. ■ •. �Quœre, whether the flrst taker of an animal /«rœ natures, who performs tiho only act of appropriation that is possible in the nature of the case, does not thereby acquire title to it. �^. Samb— SAiaB. �On themorning of April 9, 1860, in Massachusetts bay, near the end of Cape Cod, the libellant shot and instantly killed, with a bomb-lance, the whale in question. It sunk at once, and on the morning of the 12th was found stranded on the beach in Brewster, within the ebb and flow of ■ the tide, by one Ellis, 17 miles fcoxa. the spot where it was killed, who advertised it for sale at auction, and sold it to the respondent, whoshipped off the blubber and tried out the oil. On the morning of the 15th, the libellant heard that the whale had been found, and at once sent his men to claim it. Neither the respondent nor Ellis knew that the whale had been killed by the libellant, but they knew, or might have known if they had wished, that it had been shot and killed with a bomb- lance, by some person engaged in this species of business. Hdd, that the re- ' spondent was liable for a conversion. �4. Damagbb — RuLB OP. �The rule of damages in such a case is the market value of the oil obtained from it, less the cost of trying it out and preparing it for the market. with in- terest on the amount so ascerlained from the date of conversion. �H. M. Knowlton, for libellant. �H. P. Harriman, for respondent. �Nelson, D. J. This is a libel to recover the value of a fin-back whale. The libellant lives in Provincetown and the respondent in Wellfleet. The facts, as they appeared at the hearing, are as follows : �In the early spring months the easterly part of Massachusetts bay is fre- quented by the species of whale known as the fln-back whale. Fishermen from Provincetown pursue them in open beats from the shore, and shoot them with bomb-lances flred from guns made expressly for the purpose. When killed they sink at once to the bottom, but in the course of from one to three days they rjse and float on the surface. Some of them are picked up by ves- ��� �