Christian Turner Assistant Professor of Law

96^ HERMAN MELVILLE, MOBY DICK ch. 89 (“Fast-Fish and Loose-Fish”) (1st ed. London 1851). This chapter describes some litigation over ownership of a whale that had been harpooned but got away, harpoon and all, only to be harpooned and taken by a second crew. The legal question involved the point at which the whale stopped being a “loose-fish” and became a “fast-fish”-that is, the point at which the whale became someone’s property. Melville goes on to describe a number of items (including serfs and mortgages) as “fast-fish” and a number of other items (America at Columbus’ arrival, ideas, the rights of man) as “loose-fish.”

97^ It has been suggested that the ball might sell for something in excess of $1,000,000

98^ The Giants’ website contains a page which shows where each of Bonds’ home runs landed in 2001. This page was introduced into evidence and is part of the record. It shows that most of the balls are clustered in the arcade area.

99^ Ted Kobayashi, a defense expert, testified that there was insufficient reaction time for the crowd to descend on Mr. Popov. This opinion is completely unconvincing. It is premised on the assumption that people did not begin to react until the ball hit Mr. Popov’s glove. A number of witnesses testified that they began reacting while the ball was in the air. People rushed to the area where they thought the ball would land. If people were unable to anticipate where a ball will land while it is still in the air, no outfielder would ever catch a ball unless it was hit directly to him or her. Moreover, the tape itself shows people descending on Mr. Popov even as he was attempting to catch the ball.

100^ Because the probability of truth does not favor the testimony of any of these witnesses in other particulars, their entire testimony is rejected. BAJI 2.22 This finding does not apply to Mr. Hayashi.

101^ Plaintiff argues that the Keppel tape shows Mr. Hayashi biting the leg of Brian Shepard. The tape does not support such a conclusion. The testimony which suggests that a bite occurred is equally unconvincing. In addition, there is insufficient evidence that Mr. Hayashi assaulted or attempted to take the ball away from Mr. Popov.

102^ Defense counsel has attempted to characterize this encounter as one in which Mr. Popov congratulates Mr. Hayashi for getting the ball and offers him a high five. This is an argument that only a true advocate could embrace.

103^ Testimony was also received about events which occurred after baseball officials escorted Mr. Hayashi to a secure area. This evidence was admitted to allow counsel to explore the possibility that Major League Baseball retained constructive possession of the ball after it landed in the stands and later gifted it to Mr. Hayashi. Defense counsel has properly abandoned this theory. There is no evidence to support it.

104^ See generally, Witkin, Summary of California Law, Ninth Edition, section 610. See also, Fresno Air Service v. Wood (1965) 232 Cal.App.2d 801, 806, 43 Cal.Rptr. 276.

105^ Jordan v. Talbot (1961) 55 Cal.2d 597, 610, 12 Cal.Rptr. 488, 361 P.2d 20.

106^ Edwards v. Jenkins (1932)214 Cal. 713, 720, 7 P.2d 702, Witkin, supra, at section 622.

107^ Henderson v. Security National Bank (1977) 72 Cal.App.3d 764, 771, 140 Cal.Rptr. 388; Witkin, supra at section 624.

108^ Witkin, supra, at section 611.

109^ Zaslow v. Kroenert (1946) 29 Cal.2d 541, 551, 176 P.2d 1.

110^ Metropolitan Life Insurance Company v. San Francisco Bank (1943) 58 Cal.App.2d 528, 534, 136 P.2d 853; Witkin, supra, at section 617.

111^ See generally, Fugitive Baseballs and Abandoned Property: Who Owns the Home Run Ball?, Cardozo Law Review, May 2002, Paul Finkelman, (Chapman Distinguished Professor of Law).

112^ See generally, Past and Future: The Temporal Dimension in the Law of Property, (1986) 64:667;. Washington U.L. Quarterly, Professor Richard A. Epstein (James Parker Hall Professor of Law, University of Chicago; Irwin v. Phillips (1855) 5 Cal. 140; Potter v. Knowles (1855) 5 Cal. 87.

113^ They are Professor Brian E. Gray, University of California, Hastings College of the Law; Professor Roger Bernhardt, Golden Gate University School of Law; Professor Paul Finkelman, The Chapman Distinguished Professor of Law, The University of Tulsa School of Law; and Professor Jan Stiglitz, California Western School of Law.

The discussion was held during an official session of the court convened at The University of California, Hastings College of the Law. The session was attended by a number of students and professors including one first year property law class which used this case as vehicle to understand the law of possession.

114^ Brown, The Law on Personal Property (Callaghan and Company, 3rd Edition, 1975) section 2.6, page 19.

115^ Kramer v. United States, 408 F.2d 837, 840 (C.A.8th.1969); State v. Strutt (1967) 4 Conn.Cir.Ct. 501, 236 A.2d 357, 359.

116^ Professor Bernhardt is the author of the textbook Property, Cases and Statutes, published by the West Group as well as the co-author of Real Property in a Nutshell with Professor Ann M. Burkhart.

117^ Real Property in a Nutshell, Roger Bernhardt and Ann M. Burkhart, chapter one, page 3

118^ Brown, The Law on Personal Property (Callaghan and Company, 3rd Edition, 1975) section 2.6, page 21.

119^ Literally.

120^ This definition is hereinafter referred to as Gray’s Rule.

121^ Pierson v. Post, 3 Caines R. (N.Y.1805); Young v. Hitchens, 6 Q.B. 606 (1844); State v. Shaw, (1902) 67 Ohio St. 157, 65 N.E. 875.

122^ Professor Finkelman is the author of the definitive law review article on the central issue in this case, Fugitive Baseballs and Abandoned Property: Who Owns the Home Run Ball?, Cardozo Law Review, May 2002, Paul Finkelman, (Chapman Distinguished Professor of Law).

123^ The degree of control necessary to establish possession varies from circumstance to circumstance. “The law … does not always require that one who discovers lost or abandoned property must actually have it in hand before he is vested with a legally protected interest. The law protects not only the title acquired by one who finds lost or abandoned property but also the right of the person who discovers such property, and is actively and ably engaged in reducing it to possession, to complete this process without interference from another. The courts have recognized that in order to acquire a legally cognizable interest in lost or abandoned property a finder need not always have manual possession of the thing. Rather, a finder may be protected by taking such constructive possession of the property as its nature and situation permit.” Treasure Salvors Inc. v. The Unidentified Wrecked and Abandoned Sailing Vessel (1981) 640 F.2d 560, 571 (emphasis added).

124^ Brady v. S.S. African Queen, 179 F.Supp. 321 (E.D.Va., 1960); Eads v. Brazelton, (1861) 22 Ark. 499; Treasure Salvors Inc., id. at 571.

125^ Liesner v. Wanie (1914) 156 Wis. 16, 145 N.W. 374; Ghen v. Rich, 8 F. 159 (D.Mass.1881); Pierson v. Post, 3 Caines R. (N.Y.1805); Young v. Hitchens, 6 Q.B. 606 (1844); State v. Shaw (1902) 67 Ohio St. 157, 65 N.E. 875. See also Herbert Hovenkamp and Sheldon Kurtz, The Law of Property (5th ed. West Group 2001) at page 2.

126^ Indian River Recovery Company v. The China, 645 F.Supp. 141, 144 (D.Del.1986); Treasure Salvors Inc. v. The Unidentified Wrecked and Abandoned Sailing Vessel, (1981)640 F.2d 560; Richard v. Pringle, 293 F.Supp. 981 (S.D.N.Y.1968).

127^ Swift v. Gifford, 23 F. Cas. 558 (D.Mass.1872)

128^ See note 27.

129^ Brady v. S.S. African Queen, 179 F.Supp. 321, 324 (E.D.Va., 1960)

130^ Professor Gray has suggested that the way to deal with this problem is to demand that Mr. Popov sue the people who assaulted him. This suggestion is unworkable for a number of reasons. First, it was an attack by a large group of people. It is impossible to separate out the people who were acting unlawfully from the people who were involuntarily pulled into the mix. Second, in order to prove damages related to the loss of the ball, Mr. Popov would have to prove that but for the actions of the crowd he would have achieved possession of the ball. As noted earlier, this is impossible.

131^ There are a number of ways courts can enforce the rule of law. Major League Baseball, as well as each individual team has a duty to provide security against foreseeable violence in the stands. The failure to provide that security, or worse, the tacit acceptance of some level of violence, will inevitable lead to lawsuits against the teams and the parent organization.

132^ The court is indebted to Professor Jan Stiglitz of California Western School of Law for his valuable insights and suggestions on this issue.

133^ See note 14.

134^ Equitable Division and the Law of Finders, (1983) Fordham Law Review, Professor R.H. Helmholz, University of Chicago School of Law. This article built on a student comment published in 1939. Lost, Mislaid and Abandoned Property (1939) 8 Fordham Law Review 222.

135^ Helmholz at fn. 14.

136^ Id. at 315.

137^ Judge, Elven E. Ponder, retired, has been assigned temporarily to this court by the Supreme Court of Louisiana to fill the vacancy created by the election of Justice Luther F. Cole to the Supreme Court.

138^ Trudeau Plantation consists of approximately 150 acres located on a bluff in the southeast quadrant of the meeting of the Mississippi River and Tunica Bayou. Angola is on the other side of the bayou.

139^ Plaintiff filed a motion for litigous redemption which was granted by the trial court, but rejected by this court. The matter was remanded for trial. Charrier v. Bell, 380 So.2d 155 (La.App. 1st Cir.1979).

140^ La.C.C. art. 3412, 3414 and 3421 cited herein were repealed by Acts 1982, No. 187, § 1, effective January 1, 1984. The provisions replacing those articles reproduce their substance. Although the language has changed, they do not change the law. See specifically La.C.C. art. 3412 and 3418, as adopted by Acts 1982, No. 187, § 1 and the comments. The articles previously read as follow:

La.C.C. art. 3412

Occupancy is a mode of acquiring property by which a thing which belongs to nobody, becomes the property of the person who took possession of it, with the intention of acquiring a right of ownership upon it.

La.C.C. art. 3414

There are five ways of acquiring property by occupancy, to wit: By hunting. By fowling. By fishing. By finding (that is, by discovering precious stones on the sea shore, or things abandoned, or a treasure.)

La.C.C. 3421.

He who finds a thing which is abandoned; that is, which its owner has let [left] with the intention not to keep it any longer, becomes master of it in the same manner as if it had never belonged to any body.

141^ JOHN F. NANGLE, District Judge, Eastern District of Missouri, sitting by designation

142^ That case involved the same recycling project and the same defendants. However, as will be seen from our discussion, infra, we find significant factual distinctions between that case and the case sub judice

143^ The dissenter spoke as if he thought that the majority was applying the law of capture to the tract within the recycling unit. See Budd v. Ethyl Corp., 251 Ark. 639, 474 S.W.2d 411, 414 (1971) (Byrd, J., dissenting). We do not read the majority opinion to have done so.

144^ Again, the court quoted from Osborn v. Arkansas Territorial Oil & Gas Co., 103 Ark. 175, 146 S.W. 122 (1912):

* * * “A gas lease, such as is involved in this case, is a contract granting to the lessee the right to explore the land and to produce therefrom the gas therein discovered. It is not a present sale or transfer of title to the gas, but, on account of its vagrant nature, the gas does not become actually owned until actually possessed. As is said in the case of Williamson v. Jones, 39 W.Va. 231, 19 S.E. 436: ‘The title is dependent on finding the gas by the purchaser in a limited time,’ and is inchoate.”

Budd v. Ethyl Corp., supra, 474 S.W.2d at 413.

145^ We have previously declared that “(t)he responsibility of the federal courts, in matters of local law, is not to formulate the legal mind of the state, but merely to ascertain and apply it.” Yoder v. Nu-Enamel Corp., 117 F.2d 488, 489 (8th Cir. 1941). This task becomes most difficult when state law is uncertain, but we must not shun the responsibility:

When the rights of a litigant are dependent on the law of a particular state, the court of the forum must do its best (not its worst) to determine what that law is. It must use its judicial brains, not a pair of scissors and a paste pot. Our judicial process is not mere syllogistic deduction, except as its worst. At its best, it is the wise and experienced use of many sources in combination statutes, judicial opinions, treatises, prevailing mores, custom, business practices; it is history and economics and sociology, and logic, both inductive and deductive. Shall a litigant, by the accident of diversity of citizenship, be deprived of the advantages of this judicial process? * * * We must not forget that a litigant has only one day in court. * * *

* * * Each litigant, whether in the federal or the state courts, has a right that his case shall be a part of this evolution a live cell in the tree of justice. * * *

Corbin, The Laws of the Several States, 50 Yale L.J. 762, 775-776 (1941).

146^ As an example of a case where the forcing out of minerals was permitted, the defendants cite Railroad Commission of Texas v. Manziel, 361 S.W.2d 560 (Tex.1962). The secondary recovery (injection) operation sustained in that case had been ordered by a state agency to further the public policy of maximizing oil recovery. Obviously, the authority of private actors is not coextensive with the powers available to a state in exercising its police powers

147^ I Summers, The Law of Oil and Gas §§ 61-65 (1954), and the cases cited therein, consistently speak of “drainage” when discussing the rule of capture. See, e. g., Elliff v. Texon Drilling Co., 146 Tex. 575, 210 S.W.2d 558, 562 (1948): “It must be conceded that under the law of capture there is no liability for reasonable and legitimate drainage from the common pool.”

148^ The Oxford English Dictionary (1971), defines “fugacious” as meaning “(a)pt to flee away or flit,” and “fugacity” as meaning “volatile.”

8 * * * Because of the liquid and volatile nature of oil and gas and their existence in the earth in sealed strata subject to great pressures, one landowner in a common source of supply cannot produce oil or gas therefrom without actually or theoretically causing some displacement of the oil or gas under his neighbor’s land. * * *

I Summers, The Law of Oil and Gas § 62 at 157 (1954).

9 * * * The term “correlative rights” is merely a convenient metas legal privileges as against other owners of land therein to take oil and gas therefras legal privileges as against other owners of land therein to take oil and gas therefrom by lawful operations conducted on his own land limited, however, by duties to other owners not to injure the source of supply and by duties not to take an undue proportion of the oil and gas. In addition, of course, to this aggregate of legal relations, each landowner has duties to the public not to waste the oil and gas.

I Summers, The Law of Oil and Gas § 63 at 180-181 (1954).

149^ Ark.Stat.Ann. § 53-110 provides:

Waste of oil or gas as defined in this act is hereby prohibited.

Section 53-109(I) provides:

“Waste” in addition to its ordinary meaning, shall mean “physical waste” as that term is generally understood in the oil and gas industry. It shall include:

(3) Abuse of the correlative rights and opportunities of each owner of oil and gas in a common reservoir due to nonuniform, disproportionate, and unratable withdrawals causing undue drainage between tracts of land.

150^ Some authorities have labeled this element as requiring direct competition between the defendant and the plaintiff in a primary market. ”In most of the small number of cases in which the misappropriation doctrine has been determinative, the defendant’s appropriation, like that in INS, resulted in direct competition in the plaintiffs’ primary market … Appeals to the misappropriation doctrine are almost always rejected when the appropriation does not intrude upon the plaintiff’s primary market.”, Restatement (Third) of Unfair Competition, § 38 cmt. c, at 412-13; see also National Football League v. Governor of State of Delaware, 435 F. Supp. 1372 (D. Del. 1977). In that case, the NFL sued Delaware over the state’s lottery game which was based on NFL games. In dismissing the wrongful misappropriation claims, the court stated: “While courts have recognized that one has a right to one’s own harvest, this proposition has not been construed to preclude others from profiting from demands for collateral services generated by the success of one’s business venture.” Id. at 1378. The court also noted, “It is true that Delaware is thus making profits it would not make but for the existence of the NFL, but I find this difficult to distinguish from the multitude of charter bus companies who generate profit from servicing those of plaintiffs’ fans who want to go to the stadium or, indeed, the sidewalk popcorn salesman who services the crowd as it surges towards the gate.” Id.

151^ It may well be that the NBA’s product, when enhanced, will actually have a competitive edge because its Gamestats system will apparently be used for a number of in-stadium services as well as the pager market, resulting in a certain amount of cost sharing. Gamestats might also have a temporal advantage in collecting and transmitting official statistics. Whether this is so does not affect our disposition of this matter, although it does demonstrate the gulf between this case and INS, where the free-riding created the danger of no wire service being viable.

152^ Plasmids are hereditary units physically separate from the chromosomes of the cell. In prior research, Chakrabarty and an associate discovered that plasmids control the oil degradation abilities of certain bacteria. In particular, the two researchers discovered plasmids capable of degrading camphor and octane, two components of crude oil. In the work represented by the patent application at issue here, Chakrabarty discovered a process by which four different plasmids, capable of degrading four different oil components, could be transferred to and maintained stably in a single Pseudomonas bacterium, which itself has no capacity for degrading oil.

153^ At present, biological control of oil spills requires the use of a mixture of naturally occurring bacteria, each capable of degrading one component of the oil complex. In this way, oil is decomposed into simpler substances which can serve as food for aquatic life. However, for various reasons, only a portion of any such mixed culture survives to attack the oil spill. By breaking down multiple components of oil, Chakrabarty’s micro-organism promises more efficient and rapid oil-spill control.

154^ The Board concluded that the new bacteria were not “products of nature,” because Pseudomonas bacteria containing two or more different energy-generating plasmids are not naturally occurring.

155^ Bergy involved a patent application for a pure culture of the micro-organism Streptomyces vellosus found to be useful in the production of lincomycin, an antibiotic.

156^ This case does not involve the other “conditions and requirements” of the patent laws, such as novelty and nonobviousness. 35 U.S.C. §§ 102, 103.

157^ This same language was employed by P. J. Federico, a principal draftsman of the 1952 recodification, in his testimony regarding that legislation: “[U]nder section 101 a person may have invented a machine or a manufacture, which may include anything under the sun that is made by man… . ” Hearings on H.R. 3760 before Subcommittee No. 3 of the House Committee on the Judiciary, 82d Cong., 1st Sess., 37 (1951).

158^ The Plant Patent Act of 1930, 35 U.S.C. § 161, provides in relevant part:

Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propogated plant or a plant found in an uncultivated state, may obtain a patent therefor … .

The Plant Variety Protection Act of 1970, provides in relevant part:

The breeder of any novel variety of sexually reproduced plant (other than fungi, bacteria, or first generation hybrids) who has so reproduced the variety, or his successor in interest, shall be entitled to plant variety protection therefor … .

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