rabbits in an inclosed warren, doves in a dovehouse, pheasants or partridges in a mew, hawks that are fed and commanded by their owner, and fish in a private pond or in trunks. These are no longer the property of a man, than while they continue in his keeping or actual possession: but if at any time they regain their natural liberty, his property instantly ceases; unless they have animum revertendi, which is only to be known by their usual custom of returning (h). A maxim which is borrowed from the civil law (i); "revertendi animum videntur desinere habere tunc, 66 cum revertendi consuetudinem deseruerint." The law therefore extends this possession farther than the mere manual occupation; for my tame hawk, that is pursuing his quarry in my presence, though he is at liberty to go where he pleases, is nevertheless my property; for he hath animum revertendi. So are my pigeons, that are flying at a distance from their home (especially of the carrier kind), and likewise the deer that is chased out of my park or forest, and is instantly pursued by the keeper or forrester: all which remain still in my possession, and I still preserve my qualified property in them. But if they stray without my knowledge, and do not return in the usual manner, it is then lawful for any stranger to take them (k). But if a deer, or any wild animal reclaimed, hath a collar or other mark put upon him, and goes and returns at his pleasure; or, if a wild swan is taken, and marked and turned loose in the river, the owner's property in him still continues, and it is not lawful for any one else to take him (7): but otherwise, if the deer has been long absent without returning, or the swan leaves the neighbourhood. Bees also are feræ naturæ: but, when hived and reclaimed, a man may have a qualified [ *393 ] property in them, by the law of nature (2), *as well as by the civil law (m). And to the same purpose, not to say in the same words with the civil law, speaks Bracton (n): occupation, that is, hiving or including them, gives the property in

bees; for, though a swarm lights upon my tree, I have no more property in them till I have hived them, than I have in the birds which make their nest thereon; and therefore if another hives them, he shall be their proprietor: but a swarm, which fly from and out of my hive, are mine so long as I can keep them in sight, and have power to pursue them ; and in these circumstances no one else is entitled to take them. But it hath been also said (o), that with us the only ownership in bees is ratione soli; and the charter of the forest (p), which allows every freeman to be entitled to the honey found within his own woods, affords great countenance to this doctrine, that a qualified property may be had in bees, in consideration of the property of the soil whereon they are found.

regaining their

In all these creatures, reclaimed from the wildness of But this property may be detheir nature, the property is not absolute, but defeasible: a stroyed by their property, that may be destroyed if they resume their ancient liberty. wildness, and are found at large. For if the pheasants escape from the mew, or the fishes from the trunk, and are seen wandering at large in their proper element, they become feræ naturæ again; and are free and open to the first occupant that has ability to seize them. But while they thus continue my qualified or defeasible property, they are as much under the protection of the law, as if they were absolutely and indefeasibly mine; and an action will lie against any man that detains them from me, or unlawfully destroys them. It is also as much felony by common law to steal such of them as are fit for food (3), as it is to steal tame animals (q): but not so, if they are only kept for pleasure, curiosity, or whim, as dogs, bears, cats, apes, parrots, and singing birds (r); because their value is not intrinsic, but depending only on the caprice of the owner(s): though it is such an invasion of property as may *amount to a civil [394]

(0) Bro. Abr. tit. Propertie, 37, cites 43 Edw. III. 24. (p) 9 Hen. III. c. 13.

(g) 1 Hal. P. C. 512.

(r) Lamb. Eiren. 275.

(s) 7 Rep. 18; 3 Inst. 109.

(3) But it is not felony to steal such animals of a wild nature, unless they are so confined that the owner can take them whenever he pleases; or, if they

are not confined, unless they are re-
duced to tameness, and known by the
thief to be so. (1 Hawk. b. 1, c. 33,
s. 26.)-CH.

2. A qualified property sub

er of the soil, in the young of birds building their nests in the trees thereon, until they are capable of flying.

injury, and be redressed by a civil action (t). Yet to steal a reclaimed hawk is felony both by common law and statute (u); which seems to be a relic of the tyranny of our ancient sportsmen. And, among our elder ancestors, the ancient Britons, another species of reclaimed animals, viz. cats, were looked upon as creatures of intrinsic value; and the killing or stealing one was a grievous crime, and subjected the offender to a fine: especially if it belonged to the king's household, and was the custos horrei regii, for which there was a very peculiar forfeiture (w). And thus much of qualified property in wild animals, reclaimed per indus

triam.

2. A qualified property may also subsist with relation to sists in the own- animals feræ naturæ, ratione impotentiæ, on account of their own inability. As when hawks, herons, or other birds build in my trees, or coneys or other creatures make their nests or burrows in my land, and have young ones there; I have a qualified property in those young ones till such time as they can fly or run away, and then my property expires(x): but, till then, it is in some cases trespass, and in others felony, for a stranger to take them away (y). For here, as the owner of the land has it in his power to do what he pleases with them, the law therefore vests a property in him of the young ones, in the same manner as it does of the old ones if reclaimed and confined: for these cannot, through weakness, any more than the others through restraint, use their natural liberty and forsake him.

3. By privilege of hunting and

exclusion of

others.

3. A man may, lastly, have a qualified property in anikilling game, in mals feræ naturæ, propter privilegium: that is, he may have the privilege of hunting, taking, and killing them, in *exclu[*395] sion of other persons. Here he has a transient property in these animals, usually called game, so long as they continue within his liberty (z); and may restrain any stranger from

taking them therein: but the instant they depart into another liberty, this qualified property ceases. The manner in which this privilege is acquired, will be shown in a subsequent chapter.

and water.

The qualified property which we have hitherto considered, As to light, air, extends only to animals feræ naturæ, when either reclaimed, impotent, or privileged. Many other things may also be the objects of qualified property. It may subsist in the very elements, of fire or light, of air, and of water. A man can have no absolute permanent property in these, as he may in the earth and land; since these are of a vague and fugitive nature, and therefore can admit only of a precarious and qualified ownership, which lasts so long as they are in actual use and occupation, but no longer. If a man disturbs another, and deprives him of the lawful enjoyment of these; if one obstructs another's ancient windows (a) (4),

(a) 9 Rep. 58.

(4) See Vol. III. pp. 216, 217. The enjoyment of lights for twenty years, with the acquiescence of the party who, after that time, does any thing to impede such enjoyment, afford so strong a presumption of a right, by grant or otherwise, that, even before the recent act of 2 & 3 Gul. IV. c. 71, it was held that, unless the exercise of the right were contradicted or explained, a jury ought to support it. (Darwin v. Upton, 2 Saund. 175 c, in note; Cross v. Lewis, 2 Barn. & Cress. 689; 4 D. & R. 238, S. C.) This rule, however, was qualified in cases to which the custom of the city of London applied, permitting houses to be raised, upon ancient foundations, to any height the owner pleased, notwithstanding such additional elevation might obscure and darken the windows of other ancient messuages, unless there was, by agreement, some restriction to the contrary. However, in the recent case of Shadwell v. Hutchinson, (2 Carr. & P. N. P. C. 619,) Lord Tenterden held, that the custom ought to be confined to buildings on ancient foundations,

where all the four walls belonged to
the party; and that no one would be
justified by the custom in raising an
obstruction by means of those walls
of his, so as to darken the lights in a
fourth wall belonging to his neigh-
bour.

His Lordship also intimated
an opinion, obiter, but without decid-
ing the question, that, in order to sup-
port the custom, the walls so raised
ought to be, at least, as old as the
lights which they obstructed. The
custom is set forth in Wynstanley v.
Lee, (2 Swanst. 339,) and see also,
Plummer v. Bentham, (1 Burr. 249.)
This custom, though formerly allowed
to be good, does not seem to have
been favoured at law; and great care
was required to plead it properly;
(Hughes v. Keymish, and Newell v.
Barnarde, both reported in 1 Bulstr.
116;) though, in a later case (re-
ported anonymously in Comyn, 274,)
the custom is said to be founded on
good reasons, and that it needed not
be pleaded, but might be given in evi-
dence upon the general issue. How-
ever, though the custom authorised a

corrupts the air of his house or gardens (b), fouls his

(b) 9 Rep. 59; Lut. 92.