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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 (0), 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. But this proper

In all these creatures, reclaimed from the wildness of their ty may be destroyed by their nature, the property is not absolute, but defeasible: a proregaining their perty, that may be destroyed if they resume their antient 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 t, as it is to steal tame

(m) Puff. 1. 4, c. 6, s. 5. Inst. 2. 1. 14.

(n) L. 2, c. 1, s. 3.

(0) Bro. Abr. tit. Propertie, 37, cites 43 Edw. III. 24.

(p) 9 Hen. III. c. 13.

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

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animals (9): 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 in- [*394 ] jury, 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 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 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



2. A qualified property may also subsist with relation to 2. A qualified animals feræ naturæ, ratione impotentiæ, on account of property, suba their own inability. As when hawks, herons, or other birds er of the soil, in

the build in my trees, or coneys or other creatures make their birds building nests or burrows in my land, and have young ones there; I their nests in

the trees there have a qualified property in those young ones till such time

on, until they as they can fly or run away, and then my property expires(x): are capable of

flying. but, till then, it is in some cases trespass, and in others felo

sists in the own

(9) 1 Hal. P. C. 512.

tritici effundantur, usquedum summi(r) Lamb. Eiren. 275.

tas cauda tritico co-operiatur.Wot(s) 7 Rep. 18. 3 Inst. 109.

ton. LL. Wall. I. 3, c. 5, s. 5. An (1) Bro. Abr. tit. Trespass, 407. amercement similar to which, Sir Ed

(u) i Hal. P. C. 512. 1 Hawk. P. ward Coke tells us, (7 Rep. 18), there C. c. 33.

antiently was for stealing swans; only (w) Si quis felem, horrei regii cus- suspending them by the beak, instead todem, occiderit vel furto abstulerit, of the tail. felis summa cauda suspendatur, ca- (a) Carta de forest. 9 Hen. III. c. pite aream attingente, et in eam grana 13.


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

ny, 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 3. A man may, lastly, have a qualified property in aniof hunting and killing game, in mals feræ natura, propter privilegium: that is, he may exclusion of

have the privilege of hunting, taking, and killing them, in others. [ 395 ] *exclusion of other persons. Here he has a transient proper*

. ty in these animals, usually called game, so long as they continue within his liberty (2); 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 shewn

in a subsequent chapter. As to light, air, The qualified property which we have hitherto considered, and water.

extends only to animals fere nature, 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) (1),


(y) 7 Rep. 17. Lamb. Eiren. 274.
(z) Cro. Car. 554. Mar. 48. 5

Mod. 376. 12 Mod. 144.

(a) 9 Rep. 58.

(1) The enjoyment of lights' for grant or otherwise, that, unless the extwenty years, with the acquiescence of ercise of the right be contradicted or the party who, after that time, does any explained, a jury ought to support it. thing to impede such enjoyment, affords (Darwin v. Upton, 2 Saund. 175 c, in so strong a presumption of a right, by

Cross v. Lewis, 2 Barn. &


corrupts the air of his house or gardens (6), fouls his wa

(6) 9 Rep. 59. Lut. 92.

Cress. 689). This rule, however, must although he may thereby obstruct equalbe qualified in cases to which the cus. ly antient lights in an adjacent house; it tom of the city of London applies, is not to be understood that the custom which permits houses to be raised, upon extends to buildings on new foundaantient foundations, to any height the tions: (Hughes v. Keme, Yelv. 216. owner pleases, notwithstanding such Fishmongers' Company v. East India additional elevation may obscure and Company, 1 Dick. 164): and to deterdarken the windows of other antient mine the fact whether the buildings messuages, unless there is, by agree- are, or are not, on old foundations, a ment, some restriction to the contrary. trial at law may be directed, before an However, in the recent case of Shadwell injunction issues; (Attorney-General v. Hutchinson, (2 Carr. & P. N. P. C. v. Bentham, 1 Dick. 277, S. C. 1 Ves. 619), Lord Tenterden held, that the cus- sen. 543); for, if the legal right he tom must be confined to buildings on an- doubtful, equity will not interpose tient foundations, where all the four before that question is determined, walls belong to the party; and that no where the nature of the alleged inone will be justified by the custom in jury does not strongly call for immeraising an obstruction by means of diate interference. (Wynstanley v. Lee, those walls of his, so as to darken the 2 Swanst. 342. Hanson v. Gardiner, lights in a fourth wall belonging to his 7 Ves. 308. Morris v. Lessees of Lord neighbour. His Lordship also intimat- Berkeley, 2 Ves. sen. 435. The Society ed an opinion, obiter, but without de- of Gray's Inn v. Doughty, 2 Ves. sen. ciding the question, that, in order to 453. Attorney-General v. Nichol, 16 support the custom, the walls which Ves. 343). But, an action at law, for are raised must be, at least, as old a nuisance in obstructing lights, may as the lights which they obstruct. be brought either by the actual posThe custom is set forth in Wynstanley sessor of the premises, or by the party v. Lee, (2 Swanst. 339), and see also, entitled thereto in reversion; by the Plummer v. Bentham, (1 Burr. 249). one in respect of his possession, and by This custom, though allowed to be the other in respect of his inheritance. good, does not seem to have been for- (Jesser v. Gifford, 4 Burr. 2141). merly favoured at law; and great care

It would be unreasonable to presume was required to plead it properly; a grant, where no adverse right has (Hughes v. Keymish, and Newell v. ever been exercised against the party Barnarde, both reported in 1 Bulstr. who alone was capable of making the 116); but, in a later case (reported grant; consequently, encroachment upanonymously in Comyns, 274), the on antient lights, or the usurpation of custom is said to be founded on good an easement, or right of way, for reasons, and that it need not be plead twenty years, merely by the acquiesed, but may be given in evidence upon cence of a tenant, without the knowthe general issue. However, though ledge of his landlord, will not authorize the custom authorizes a party wł a presumption against the owner of the builds on an old foundation to raise his inheritance: but, even in such cases, walls higher than they formerly stood, the origin of the right claimed adverseVOL. II.


ter (c)(2), or unpens and lets it out, or if he diverts an antient water-course that used to run to the other's mill or meadow (d) (3); 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. Bailments. 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 [ * 396 ] ownership. *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 inn-keeper to secure in his inn, or the (c) 9 Rep. 59.

(d) i Leon. 273.


Skin. 389.

ly must be traced, in order to repel the before the Court, and a case of nuidoctrine of presumption. It will not sance is stated of such a nature as to be be enough to shew, that the heredita- attended with extreme probability of ments which are deteriorated by the irreparable injury to property or health, alleged encroachments have been, for certainly an injunction would be granttwenty years, in the occupation of ed. (Crowder v. Tinkler, 19 Ves. 622. tenants; it should, also, be made to Attorney-General v. Johnson, 2 Wils. appear, that the encroachments com- Cha. Ca. 102. Wynstanley v. Lee, 2 plained of had their commencement Swanst. 335. Mayor of London v. within the period of such tenancy. (Dan- Bolt, 5 Ves. 130; and see post, p. 403). ieb v. North, 11 East, 374. Wood v. (3) See Robinson v. Lord Byron, Veal, 5 Barn. & Ald. 456. Harper v. (reported in 1 Br. 588, in 2 Cox, 4, and Charlesworth, 4 Barn. & Cress. 591. in 2 Dick. 703), which appears to have Cross v. Lewis, 4 Dowl. & Ryl. 239, been the first case in which an injuncS. C. 2 Barn. & Cress. 688).

tion issued to restrain a defendant from (2) Where the common law affords doing acts to prevent water from flowa convenient remedy, the interposition ing in regular quantities to a mill. The of the court of Chancery, in cases of case is cited, by Lord Eldon, in Hanson nuisance, is rare; and there seems no v. Gardiner, (7 Ves. 388), and the disposition to extend the equitable in- ground of the case stated to have been terference in such cases; at all events, the prevention of irreparable mischief, not by granting ex parte injunctions: which might have been effected before (Attorney-General v. Cleaver, 18 Ves. the right could have been tried at law. 217): but when all proper parties are

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