8 F. 159
The libellant lives in Provincetown and the respondent lives in Wellfleet.1 The libellant has been engaged in this business for ten years past.2
On the morning of April 9, 1880, in Massachusetts bay, near the end of Cape Cod, the libellant shot and instantly killed with a bomb-lance the whale in question.3 The whale sunk immediately.4
On the morning of the 12th the whale was found stranded on the beach in Brewster, within the ebb and flow of the tide, by one Ellis, 17 miles from the spot where it was killed.5 Instead of sending word to Provincetown, as is customary, Ellis advertised the whale for sale at auction, and sold it to the respondent, who shipped off the blubber and tried out the oil.6
The libellant heard of the finding of the whale on the morning of the 15th, and immediately sent one of his boat's crew to the place and claimed it.7 Neither the respondent nor Ellis knew 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.8
This is a libel to recover the value of a fin-back whale.9 In the early spring months the easterly part of Massachusetts bay is frequented by the species of whale known as the fin-back whale.10 Fishermen from Provincetown pursue them in open boats from the shore, and shoot them with bomb-lances fired from guns made expressly for the purpose.11 When killed they sink at once to the bottom, but in the course of from one to three days they rise and float on the surface.12 Each boat's crew engaged in the business has its peculiar mark or device on its lances, and in this way it is known by whom a whale is killed.13
Whether the usage on Cape Cod that the person who kills a fin-back whale in the described manner owns it is valid?14
A local usage among whalemen is valid if it is reasonable, has been recognized and acquiesced in for many years, is limited in application, requires the only act of appropriation possible in the nature of the case, and is necessary to prevent the industry from ceasing.15
Yes. The usage proved in this case is as reasonable as that sustained in the cases cited.16 Its application must necessarily be extremely limited, and can affect but a few persons.17 It has been recognized and acquiesced in for many years.18
It requires in the first taker the only act of appropriation that is possible in the nature of the case.19
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.20
The usage is valid and the libellant has title to the whale.21