Ghen v. Rich
8 F. 159 · District Court, D. Massachusetts · 1881
Facts
In Massachusetts Bay, the libellant, a fisherman, shot and killed a fin-back whale with a bomb-lance. The whale immediately sank, as is typical for this species, and was expected to resurface days later. Three days after being killed, the whale was found stranded on a beach by Ellis, 17 miles from where it was shot. Instead of following the local custom of notifying the killer, Ellis advertised and sold the whale to the respondent. The respondent then processed the whale for its oil. The libellant, upon learning of the whale's discovery, claimed ownership based on a long-standing local usage among whalers.
Issue
The legal question is whether a long-standing local usage among whalers, which grants ownership of a killed whale to the person who shot it, is a valid and enforceable custom. Specifically, the court must determine if this usage overrides the general common law requirement of immediate physical possession for acquiring property in a wild animal.
Holding
The court held that the local usage among whalers is valid and enforceable. Therefore, the property in the whale belonged to the libellant, who had killed it according to the custom.
Rule
The court established that a long-standing and reasonable local usage can determine property rights, especially in industries where the nature of the pursuit makes immediate physical possession impossible. This rule applies when the usage is widely recognized and acquiesced in, requires the only possible act of appropriation by the first taker, and is essential for the industry's survival. The court reasoned that without such a custom, no one would engage in the difficult and dangerous business of whaling if their efforts could be appropriated by a chance finder. Furthermore, the usage provides for reasonable salvage for finders, demonstrating its practical and equitable nature.
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