Thursday, October 1, 2009

Bragging Rights

After dinner Wednesday, Nick and I decided to take the kids on a quick, spontaneous fishing expedition to the small lake here in town.
Almost right away, Brandon got a nibble on his line, and, with Daddy's help, he reeled in a nice little catfish. He was incredibly excited and simultaneously very apprehensive. He wanted to eat it and not throw it back -- it might have counted as a light hors d'oeuvre. Abi likes playing with the worms, bossing Camryn around, dragging the dog around by her leash, and occasionally holding a pole, just long enough to sufficiently tangle the line that I have to spend several minutes undoing what she did in seconds. So, I figured I deserved a cast or two with her pole. Lo and behold, I caught a whopper!! of a catfish! The problem is in who owns bragging rights . . . she kept calling it "my fish" and even posed with said fish in a photo (to be able to show Grandpa and Grandma). I said, "But, Abi, I cast the line, I hooked the fish, I reeled it in -- I believe that's MY fish." She said, "But, Mother, you caught it with MY pole!"

Maybe Uncle Matt can give us some legal advice on who actually owns the Bragging Rights to this fish!

5 comments:

Matt said...

As a matter of fact, I can. Under the Rule of Capture, as set forth in the case of Pierson v. Post, 3 Cai. R. 175 (N.Y. 1805), property right in a wild animal are acquired through physical possession. In other words, the first person to kill or capture a wild animal acquires title to it. You, of course, were the first person to capture the catfish. If the analysis stopped at that point, you would be the owner of the fish.

The question continues, however, in that we must next determine whether Abi may or may not have a constructive trust over the animal because she provided the instrumentation used in the capture thereof. Under the common law, someone (the bailor) who gives his or her personal property to another (the bailee) for the purpose of having such property repaired (as you readily admit you were doing with her fishing rod), is entitled to recover all profits or gains that the bailee earns through the use of said property during the term of the bailment.

You caught the fish with Abi's rod during the bailment (she had given it to you for repair but hadn't yet retrieved it subsequent to the completion of said repairs). Under this analysis, Abi is entitled to claim ownership of the fish. Your failure to recognize her ownership thereof is a breach of fiduciary duty, and you can be held liable to her for all actual damages incurred as a proximate cause of that breach.

Love you! MLF

NOTE: Nothing included in this blog comment can or should be construed as legal advice. The writer of this comment is not your attorney in relation to the subject matter referenced above. You are hereby advised not to rely on this information as a determination your legal rights but, rather, should confer with your attorney.

Sherry said...

Oh, I love it! Uncle Matt is cracking me up! We went this morning...pix to come!

Dr. Nick said...

Dearest Uncle Matt,
I claim the fish to be mine. I base this upon 3 new, previously unreported facts. 1) I purchased the fishing pole and bait. Technically speaking all equipment used is maintained by me (here forward referred to as "the dad"). (over 99% of the time, the pole is in my possession (to avoid damage and hook wounds on siblings) ;-) 2) I was the only person at the scene with a valid AR fishing license. 3) The baiting of the hook (aka "all the work") was done by none other than "the dad."

In light of these new facts of the case and knowing that possession is nine-tenths of the law, you can see that fish clearly belongs to "the dad." Do you think the circuit court of appeals will take my case? :-)

Matt said...

Dearest Dr. Nick,

I stand by my previous analysis of this case and am prepared to refute each of the bases upon which you state your claim. First, your purchase of the equipment was made with the intent that it be used by your child, not you. It was, therefore, intended to be and is, in fact, a "gift," as that term is defined by the applicable common law. Similarly, your maintenance of the equipment and the baiting of the hook are both "gifts" in that they are acts or services given to another for free with the intent that the other benefit while you do not.

Second, your admission that you were the only person at the scene with a valid fishing license exposes you to criminal liability under the Arkansas Code Annotated for contributing to the delinquency of a minor. Moreover, public policy requires that a person who commits a crime not be permitted to retain the benefits therefrom. You, thus, cannot be permitted to keep either the fish or the bragging rights to the fish.

Finally, if you can point to an actual case or statute which provides citable authority for the proposition that "possession is nine-tenths of the law," you will astonish the entire legal community of Arkansas. Nevertheless, even if such a rule of law is applicable in this jurisdiction, I have seen no evidence that you have, or have ever had, possession of the fish at issue in this case. The above-posted photographic evidence is inconclusive as to who is holding said fish.

Based on this analysis, I stand by my assertion that Abi has ownership rights to both the fish and the bragging rights for the capture thereof.

Fryar Family said...

OH MY GOODNESS ! ! !

I so enjoyed these postings. You guys are so funny!