Earlier this month, we had occasion to visit my cousins in Kelowna. With them at the time were their two granddaughters, Megan (11 years) and Kelly (13 years). Megan was primed for my arrival and wanted “the retired judge” to decide a dispute she was having with her grandfather. She held a stick in her hands which she said was hers; he said it was his.
Megan started. Apparently, several weeks earlier, the girls were camping with their mother and grandparents at Logan Lake in the Highland Valley between Merritt and Kamloops, British Columbia. Searching for firewood with her sister, she came across an aspen branch that was smooth with an attractive grain pattern, about an inch and a half thick. She cut it off from the bottom of the tree so that it was a foot or so in length. Initially it was green and it reminded her of Hawaii. As it dried out, it became a lovely brown colour. She also burned it in the fire so that the top became scorched and had extra lustre. The stick was light-weight, comfortable to hold, and had notches which provided a handle that would be good for fishing. She could easily conk a fish with it. She also said that it was the perfect stick for bopping her grandfather on the arm when he became a pest. She loves sticks, held onto it all weekend, and wanted to take it home. But she has many such sticks at home and her mother didn’t want her to take another. So she cached it behind a bush. Her intention was to retrieve it when she returned. As she made her submissions, she tenderly stroked the sides of the stick.
Grandfather Don then put forward his case. Two weeks later, he was camping in the same spot, this time without his granddaughters. He said he found the stick, considered it abandoned, and claimed it for himself. He took it home to Kelowna and, on a later visit to Megan’s home on the coast, he bragged about the stick he had found. He argued that he owned the stick. Possession was 9/10ths of the law, right? Besides Megan’s intentions for the use of the stick seemed nefarious and surely that was relevant.
I hummed and hawed and pronounced that, without looking at the case law about property law (which I had long forgotten), Megan had the stronger claim to the stick. She had cut the stick, added a distinctive label (the scorching) and made it her own by her actions. Unable to take it home, she had not abandoned it, but hidden it the best she could for another time. Her claim to the stick was like that of the ranchers whose branded cattle we saw running free range in Wyoming. Don was out of luck.
In an effort to mediate a settlement, they considered cutting the stick in half. But Don conceded that to do so would ruin the lines of the stick, make it too short for any useful purpose, and he wouldn’t insist upon it. Megan responded that, as she now knows that the stick is hers, she was content to have her grandfather look after it at his home in her absence. It will always be there waiting for her to use on visits.