Sivut kuvina

quasi manui assueta. But however well this notion may be founded, abstractedly considered, our law apprehends the most obvious distinction to be, between such animals as we generally see tame, and are therefore seldom, if ever, found wandering at large, which it calls domitæ naturæ; [392] and such creatures as are usually found at liberty, which are therefore supposed to be more emphatically feræ naturæ, though it may happen that the latter shall be sometimes tamed and confined by the art and industry of man. Such as are deer in a park, hares or rabbets in an enclosed 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. A maxim which is borrowed from the civil law;i “revertendi animum videntur desinere habere tunc, 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 forester: all which remain still in my possession, and I still preserve my qualified property in them. But if they stray without my knowlege, and do not return in the usual manner, it is then lawful for

h Bracton. l. 2. c. 1. 7 Rep. 17.

i Inst. 2. 1. 15.

Cited as to domesticated buffalo, 81 Ill. 405.

But if a deer, or any wild

any stranger to take them. 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:1 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 property in them,* by the law of nature, as well as by the civil law. And to the same purpose, [393] 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, 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.t

In all these creatures, reclaimed from the wildness of k Finch. L. 177.

1 Crompt. of courts. 167. 7 Rep. 16.

m Puff. l. 4. c. 6. 5. Inst. 2. 1. 14.

n l. 2. c. 1. 3.

o Bro. Abr. tit. propertie. 37. cites 43 Edw. III. 24.

p 9 Hen. III. c. 13..

*-* Quoted, 7 Johns. 17.

t-t Quoted, 2 Dev. 163.

Cited, Smith (N. H.) 61.
Cited, 7 Johns. 17; 3 Binn. 555.

their nature, the property is not absolute, but defeasible: a property, that may be destroyed if they resume their antient 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, as it is to steal tame animals: but not so, if they are only kept for pleasure, curiosity, or whim, as dogs, bears, cats, apes, parrots, and singing birds; because their value is not intrinsic, but depending only on the caprice of the owner: though it is such an invasion of property as may [394] amount to a civil injury, and be redressed by a civil action. Yet to steal a reclaimed hawk is felony both by common law and statute;" which seems to be a reiic of the tyranny of our antient sportsmen. And, among our elder ancestors the antient 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 beq 1 Hal. P. C. 512.

r Lamb. Eiren. 275.

s 7 Rep. 18. 3 Inst. 109.

t Bro. Abr. tit. trespass. 407.

u 1 Hal. P. C. 512. 1 Hawk. P. C. c. 33.

*Cited, 14 Wend. 46.

+ Cited, 53 N. H. 406, 418; 16 Am. Rep. 349, 365; dogs not subject of absolute and valuable property, 100 Mass. 140. See 3 Blackst. 7.

Cited as to dogs, 27 Ala. 483; 62 Am. Dec. 777; 109 Mass. 275; 26 Ohio St. 401; killing a dog may be malicious mischief, 13 Ired, 34; 34 N. H. 526; 69 Am. Dec. 518.

longed to the king's household, and was the custos horrei regii, for which there was a very peculiar forfeiture.▾ And thus much of qualified property in wild animals, reclaimed per industriam.

2. A qualified property may also subsist with relation to 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 throse young ones till such time as they can fly or run away, and then my property expires; but, till then, it is in some cases trespass, and in others, felony, for a stranger to take them away. 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. A man may, lastly, have a qualified property in animals feræ naturæ, propter privilegium: that is, he may have the privilege of hunting, taking, and killing them, in exclusion [395] of other persons. Here he has a transient property in these animals, usually called game, so long as they continue within his liberty; and may restrain any stranger from taking them therein: but the instant they depart into another liberty, this qualified property ceases. The manner,

W "Si quis felem, horrei regii custodem, occiderit vel furto abstulerit, felis summa cauda suspendatur, capite aream attingente, et in eam grana tritici effundantur, usquedum summitas caudæ tritico cooperiatur." Wotton. LL. Wall. l. 3. c. 5. 5. An amercement similar to which, sir Edward Coke tells us (7 Řep. 18.) there antiently was for stealing swans; only suspending them by the beak, instead of the tail.

x Carta de forest. 9 Hen. III. c. 13.

y 7 Rep. 17. Lamb. Eiren. 274.

z Cro. Car. 554. Mar. 48, 5 Mod. 376. 12 Mod. 144.

in which this privilege is acquired, will be shewn in a subsequent chapter.

The qualified property which we have hitherto considered, 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 antient windows,a corrupts the air of his house or gardens, fouls his water, or unpens and lets it out, or if he diverts an antient watercourse that used to run to the other's mill or meadow; the law will animadvert hereon as an injury, and protect the party injured in his possession. But the property in them ceases the instant they are out of possession: for, when no man is engaged in their actual occupation, they become again common, and every man has an equal right to appropriate them to his own use.

These kinds of qualification in property depend upon the peculiar circumstances of the subject matter, which is not capable of being under the absolute dominion of any proprietor. But property may also be of a qualified or special nature, on account of the peculiar circumstances of the owner, when the thing itself is very capable of absolute ownership. [396] As in case of bailment, or delivery, of goods to another person for a particular use; as to a carrier to convey to London, to an innkeeper

a 9 Rep. 58.

b Ibid. 59. Lutw. 92.
c 9 Rep. 59.

d 1 Leon. 273. Skin. 389.
4 Previously, "or."

*Cited, 5 Conn. 519.

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