Ghen v. Rich
Citation and Court
Ghen v. Rich, 8 F. 159 (D. Mass. 1881)
Facts
Ghen, a whaler, shot a fin-back whale with a distinctive bomb-lance that killed the whale. The whale, following the nature of the species, sank immediately after being killed and did not surface for several days. When it surfaced on a beach miles away, a stranger named Ellis found it, had it processed, and sold the oil to Rich. The local custom among whalers was that the first to lance a whale owned it, and that finders were entitled only to a small salvage fee.
Issue
Who has property rights in a killed whale when the killer cannot immediately retrieve it and a third party later finds the carcass?
Holding
The federal district court held for Ghen, finding that he had acquired property rights in the whale through the industry’s established custom of the trade.
Rule / Doctrine
Where an industry has a universal, well-established custom for acquiring property rights in animals that by their nature cannot be immediately reduced to possession, that custom may govern the allocation of property rights. The custom must be (1) universal and well-known within the relevant community, (2) reasonable and workable, and (3) necessary to the survival and practice of the industry. Custom can substitute for actual physical possession when the nature of the animal makes immediate possession impossible.
Significance
Ghen v. Rich is a key property law case illustrating how custom can establish property rules where standard first-possession doctrine (requiring actual physical control) would be unworkable. It is often taught alongside Pierson v. Post to show the range of approaches to property acquisition in wild animals and the role of industry practice in shaping legal rules. The case raises deeper questions about whether courts should defer to efficient industry norms or impose uniform legal standards.