Page:Federal Reporter, 1st Series, Volume 8.djvu/176

 162 FBimBAIi BBPOBTEB. �it is likely to be mnch' used, and if a ilSage! is Jfound to prevail generally in that business, it will not be open to the objectifin that it is likely to disturb the general understanding of mankind by the interposition of an arbitrary ex;ception." �. I see no reason, why ^he usage proved in this case is not as rea- sonable as that sustained in the cases cited. Its application must necessarily be extremely limited, and can affect but a few persons. It £as been recognized and acquiesced in for many years. It requires intime firat taker tljeonly act of appropriation that is possible in the nature of the case. Unless it is sustained, this branch of industry must necessarily. cease, for no person would engage in it if the fruits, of his labor could be appropriated by any chance finder. It gives reasonable salvage iior securing or^feporting the property. That the rule 'Works ■well in practice is shown by the estent of the industry vhich bas grown up under it, and the general acquiescence 6i a whole' community interested to dispute it. It is by no means clear that without regard to usage the common law would not reach the same resuit. That seems to be the eflfect of the decisions in Taber v. Jenny ana JBartlett'v. Eudd. If the fisherman does all that it is possible to do to make the animal his own, that would seem to be sufficient. Sucb a rule might well be applied in the interest of trade, there being no usage or custom to the contrary. Holmes, Com. Law, 217. But be that as it may, I hold the usage to be valid, and that the property in the whale was in the libellant. �ihe rule pf damages is the market value of the oil obtained from the wbale, less the cost of tryingit out and preparing it for the mar- ket, with interest on the amount so ascertained from the date of con- version. As the question is new and important, and the suit is con- tested on both sides, more for the purpose of having it settled than for the amount involved, I shall give no costs. Decree for libellant for $71.05, without costs. ��� �