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If I have an antient window, overlooking my neighbour's ground, he may not erect any blind to obstruct the light (2): but if I build my house close to his wall, which darkens it, I cannot compel him to demolish his wall; for there the
first occupancy is rather in him, than in me. If my neigh[ * 403 ] bour *makes a tan-yard, so as to annoy and render less sa
lubrious the air of my house or gardens, the law will furnish me with a remedy; but, if he is first in possession of the air, and I fix my habitation near him, the nusance is of my own seeking, and may continue (3). If a stream be unoccupied, I may erect a mill thereon, and detain the water; yet not so as to injure my neighbour's prior mill, or his meadow: for he hath by the first occupancy acquired a pro
perty in the current (4) t. 4. Of animals fe- 4. With regard likewise to animals feræ naturæ, all manra natura, with
kind had by the original grant of the Creator a right to pursue and take any fowl or insect of the air, any fish or inhabitant of the waters, and any beast or reptile of the field: and this natural right still continues in every individual, unless where it is restrained by the civil laws of the country. And when a man has once so seized them, they become while living his qualified property, or, if dead, are absolutely his own: so that to steal them, or otherwise invade this
(2) See ante, p. 395, note (1) to chapter 25.
(3) See ante, note (2) to chap. 25. (4) See ante, note (3) to chap. 25.
+ Mr. Christian observes, that “since sentence in the text. the immense extension of the woollen “Any one may build a mill, and may and cotton manufactures by machi- detain or divert the water to supply it, nery, a stream of water in many situa- provided he leaves sufficient for all the tions is become of great value to the beneficial purposes to which it had owners of the grounds through which been previously applied below, and it flows. But, though actions respecto provided he does not throw it back ing injuries to mills, and the right to upon another's ground, or upon a predam or divert the water in a stream, existent mill above, so as to lessen the are now extremely frequent in the fall upon its wheel, and thereby to dicountry, yet the whole law upon the minish the effect of his neighbour's subject seems to be comprised in the machinery."
property, is, according to their respective values, sometimes a criminal offence, sometimes only a civil injury. The restrictions which are laid upon this right, by the laws of England, relate principally to royal fish, as whale and sturgeon, and such terrestrial, aerial, or aquatic animals as go under the denomination of game; the taking of which is made the exclusive right of the prince, and such of his subjects to whom he has granted the same royal privilege. But those animals which are not expressly so reserved, are still liable to be taken and appropriated by any of the king's subjects, upon their own territories; in the same manner as they might have taken even game itself, till these civil prohibitions were issued: there being in nature no distinction between one species of wild animals and another, between the right of acquiring property in a hare or a squirrel, in a partridge or a butterfly: but the difference at present made, arises merely from the positive municipal law (5).
5. To this principle of occupancy also must be referred 5. Of growing the method of acquiring a special personal property in corn emblements. growing on the ground, or other emblements, by any possessor *of the land who hath sown or planted it, whether he [ * 404 ] be owner of the inheritance, or of a less estate; which emblements are distinct from the real estate in the land, and subject to many, though not all, the incidents attending personal chattels t. They were devisable by testament before the statute of wills (m), and at the death of the owner shall vest in his executor and not his heir; they are forfeitable by outlawry in a personal action (n): and by the statute 11
corn, or other
(m) Perk. s. 512.
(n) Bro. Abr. tit. Emblements, 21.
5 Rep. 116.
(5) See ante, pp. 14 and 15 with note (30) to chapter 1.
† Mr. Christian observes, that “the tion of an inchoate, and not the acquiright to emblements does not seem to sition of an original, right." [See ante, be aptly referred to the principle of p. 10, with note (19) to chap. 1.-Ed.] occupancy; for they are the continua.
6. Of property arising from accession.
Geo. II. c. 19, though not by the common law (o), they may be distreined for rent arrere. The reason for admitting the acquisition of this special property by tenants who have temporary interests, was formerly given (P); and it was extended to tenants in fee, principally for the benefit of their creditors: and, therefore, though the emblements are assets in the hands of the executor, are forfeitable upon outlawry, and distreinable for rent, they are not in other respects considered as personal chattels; and particularly they are not the object of larceny, before they are severed from the ground (9).
6. The doctrine of property arising from accession is also grounded on the right of occupancy. By the Roman law, if any given corporeal substance received afterwards an accession by natural or by artificial means, as by the growth of vegetables, the pregnancy of animals, the embroidering of cloth, or the conversion of wood or metal into vessels and utensils, the original owner of the thing was entitled by his right of possession to the property of it under such its state of improvement (r) +: but if the thing itself, by such operation, was changed into a different species, as, by making wine, oil, or bread, out of another's grapes, olives, or wheat, it belonged to the new operator, who was only to make a satisfaction to the former proprietor for the materials which he had so converted (s). And these doctrines are implicitly copied and adopted by our Bracton(), and have since been
(0) 1 Roll. Abr. 666.
(p) Pag. 122, 146: [with note (6) to chap. 8, and note (12) to chap. 9.]
(9) 3 Inst. 109.
(r) Inst. 2. 1. 25, 26. 31. Ff. 6. 1. 5.
+ Mr. Christian observes, that " this prove the identity of the original maalso has long been the law of England; terials; as, if leather be made into for it is laid down in the Year-books, shoes, cloth into a coat, or if a tree be that whatever alteration of form any squared into timber, or silver melted or property has undergone, the owner may beat into a different figure. (5 Hen. VII. seize it in its new shape, if he can fo. 15. 12 Hen. VIII. fo. 10.)"
confirmed by many resolutions of the courts (u). It hath even been held, that if one takes away and cloaths another's wife or son, and afterwards they return home, the garments shall cease to be his property who provided them, being annexed to the person of the child or woman (w).
7. But in the case of confusion of goods, where those of 7. By confusion two persons are so intermixed, that the several portions can goods.
or mixing of be no longer distinguished, the English law partly agrees with, and partly differs from, the civil. If the intermixture be by consent, I apprehend that, in both laws, the proprietors have an interest in common, in proportion to their respective shares (C). But, if one wilfully intermixes his money, corn, or hay, with that of another man, without his approbation or knowledge, or casts gold in like manner into another's melting pot or crucible, the civil law, though it gives the sole property of the whole to him who has not interfered in the mixture, yet allows a satisfaction to the other for what he has so improvidently lost (y). But our law, to guard against fraud, gives the entire property, without any account, to him whose original dominion is invaded, and endeavoured to be rendered uncertain, without his own consent (z) (6).
(u) Bro. Abr. tit. Propertie, 23. (y) Inst. 2. 1. 28. Moor. 20. Poph. 38.
(2) Poph. 38. 2 Bulstr. 325. i Hal. (w) Moor. 214. (.r) Inst. 2. 1. 27, 28. 1 Vern. 217.
P. C.513. 2 Vern. 516.
(6) In the case of Lupton v. White, answers his own question thus:-“ If (15 Ves. 439, et seq.), Lord Eldon took one man mixes his corn or flour with that rather a different view of our law from of another, and they were of equal vathat laid down in the text. His Lord- lue, the latter must have back the quanship thought, that a man who, by his tity that belongs to him, if that can be own tortious act in confounding two ascertained; but, if articles of different funds, makes it impossible for another value are mixed together, producing a to ascertain the amount of his proper- third value, the aggregate of both, and ty, is bound himself to furnish the through the fault of the person mixing means of distinguishing the two, or to them the other party cannot tell what relinquish the whole. What, Lord El
was the original value of his property, don asked, are the cases in the old law he must have the whole." of a mixture of corn and flour? and he Lord Eldon, therefore, did not think
their own ori
8. of authors in 8. There is still another species of property, which (if it ginal literary
subsists by the common law), being grounded on labour and compositions. invention, is more properly reducible to the head of occu
pancy than any other ; since the right of occupancy itself is supposed by Mr. Locke (a), and many others (6), to be founded on the personal labour of the occupant. And this is the right, which an author may be supposed to have in his own original literary compositions : so that no other person without his leave may publish or make profit of the copies. When a man, by the exertion of his rational
powers, has produced an original work, he seems to have clearly a [ * 406 ] * right to dispose of that identical work as he pleases, and
any attempt to vary the disposition he has made of it, appears to be an invasion of that right. Now the identity of a literary composition consists intirely in the sentiment and the language ; the same conceptions, cloathed in the same words, must necessarily be the same composition : and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by
that an account was not to be taken, pay money belonging to his employer if that was practicable; but that, where into his own banking-house, and to his the person whose original dominion has general account, this money may not not the means of furnishing the ac- be distinguishable; but, should the count, the duty of supplying it rests agent become bankrupt, the whole sum with the wrong-doer; and if he fails to which appears to be due to him from distinguish the two properties which the bankers, will go to his assignees, he has confounded, he loses his claim and his employer can only come in as to any part thereof. (See also Lord a general creditor under the commisChedworth v. Edwards, 8 Ves. 50). sion. (E.c parte Townsend, 15 Ves.
The general rule, that, as against an 470). So, if the bankers had any acagent who has mixed the property of count with the agent by way of set-off, his employer with his own, so as to ren- that set-off would equally affect the der it undistinguishable, the whole may, money paid in to his account (though both at law and in equity, be taken to being, in truth, the money of his embe the property of the employer, is well ployer), as it would the agent's own settled; but, the same rule does not, in money, supposing the bankers to have all cases, hold against the creditors of no notice, displacing their equity. (Massuch agent: for instance, if an agent sey v. Bauner, 1 Jac. & Walk. 248).