Property in the young of tame animals. of husbandry. But in animals feræ naturæ a man can have no absolute property.1 Of all tame and domestic animals, the brood belongs to the owner of the dam or mother; the English law agreeing with the civil, that "partus sequitur ventrem" in the brute creation, though, for the most part, in the human species it disallows that maxim. And therefore, in the laws of England,d as well as Rome,e "si equam meam equus tuus prægnantem fecerit, non es tuum sed meum quod natum est." And for this Puffendorfff gives a sensible reason; not only because the male is frequently unknown, but also because the dam, during the time of her pregnancy, is almost useless to the proprietor, and must be maintained with greater expense and care: wherefore, as her owner is the loser by her pregnancy, he ought to be the gainer by her brood. An exception to this rule is in the case of young cygnets, which belong equally to the owner of the cock and hen, and shall be divided between them. But here the reasons [391] of the general rule cease, and "cessante ratione cessat et ipsa lex;" for the male is well known by his constant association with the female; and for the same reason, the owner of the one doth not suffer more disadvantage, during the time of pregnancy and nurture, than the owner of the other. II. Qualified, limited, or special property. First, in animals feræ naturæ. 1. Qualified property per II. Other animals, that are not of a tame and domestic nature, are either not the objects of property at all, or else fall under our other division, namely, that of qualified, limited, or special property which is such as is not in its nature permanent, but may sometimes subsist, and at other times not subsist. In discussing which subject, I shall, in the first place, show how this species of property may subsist in such animals as are fera naturæ, or of a wild nature; and then how it may subsist in any other things, when under particular circumstances. First, then, a man may be invested with a qualified, but not an absolute, property in all creatures that are feræ naturæ, either per industriam, propter impotentiam, or propter privilegium. 1. A qualified property may subsist in animals feræ naturæ, Industriam per industriam hominis: by a man's reclaiming and making them tame by art, industry, and education; or by so confining them within his own immediate power, that they can not c 1 Hal., P. C., 511, 512. (1) See 2 B. & Cr., 937. (2) See, in general, the observations of Mr. Justice Bayley, 2 B. & C., 937; Com. Dig., Biens, (F.), and Action sur Trover, (C.); and 1 Saund., 84. Trover f L. of N., 1. 4, c. 7. lies for a parrot or monkey, because they are merchandise, and valuable (Cro. J., 262); but indictment does not lie for stealing a tamed ferret. (Russ. & R. C. C., 350.)-[CHITTY.] (See stat. 7 & 8 Geo. IV., c. 29, s. 31.) escape and use their natural liberty. And under this head some writers have ranked all the former species of animals we have mentioned, apprehending none to be originally and naturally tame, but only made so by art and custom: as horses, swine, and other cattle; which, if originally left to themselves, would have chosen to rove up and down, seeking their food at large, and are only made domestic by use and familiarity; and are therefore, say they, called mansueta, 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; and such creatures as are usually found [392 | 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 rabbits in an inclosed warren, doves in a dove-house, 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.h3 A maxim which is borrowed from the civil law: "revertendi animum videntur desinere habere tunc, cum revertendi consuetudinem deseruerint." The law, therefore, extends this possession further 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 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 ; but otherwise if the deer has been long absent without returning, or the swan leaves the neighborhood. Bees, also, are feræ naturæ ; Bees. b Bracton, 1. 2, c. 1. 7 Rep., 17. Inst., 2, 1, 15. k Finch, L., 177. 1 Crompt., of Courts, 167. 7 Rep., 16. (3) See 4 Car. & P., 131. 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 [393] law. And to the same purpose, not to say in the same words with the civil law, speaks Bracton ;" 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 saido 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.* In all these creatures, reclaimed from the wildness of their nature, the property is not absolute, but defeasible: a property that may be destroyed if they resume their ancient 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 (4) With respect to rooks, it has been determined that no action is sustainable against a person for maliciously causing loaded guns to be discharged near a neighbor's close and trees, and thereby disturbing and driving away the rooks which used to resort to and have young in the same; inasmuch as rooks are a species of birds ferræ naturæ, destructive in their habits, not properly an article of food, and not protected by any act of Parliament, and that the plaintiff, therefore, could not have any property in them. (2 Barn. & C., 934; 4 Dowl. & R., 518, S. C.) But an action on the case lies for discharging guns near the decoy-pond of another, with design to damnify the owner by frightening away the wild fowl resorting thereto, by which the wild fowl are frightened away, and the owner damnified; for wild fowl are protected by the 25 Hen. VIII., c. 11, and they constitute a known article of • Bro. Abr., tit. Propertie, 37, cites 43 Edw. III., 24. P 9 Hen. III., c. 13. food; and a person keeping up a decoy expends money and employs skill in taking that which is of use to the public. It is a profitable mode of employing his land, and was considered by Lord Holt as a description of trade. (11 East, 574; 2 B. & C., 943.) Other animals are specially protected by acts of Parliament; as hawks, falcons, swans, partridges, pheasants, pigeons, wild ducks, mallards, teal, widgeons, wild geese, black game, red game, bustards, and herons, and consequently, in the eye of the law, are fit to be preserved. Bees are property, and the subject of larceny. (Per Bayley, J., 2 B. & C., 994; Sir T Raym., 33.)-[CHITTY.] (See stat. 6 & 7 Geo. IV., c. 29, s. 31, which extends to the stealing of any beast or bird ordi narily kept in confinement. As to fish, see Id., s. 34, 35, 36; 7 Will. IV. & 1 Vict., c. 90, s. 5. As to game, see 9 Geo. IV., c. 69; 1 & 2 Will IV., c 32.) 5 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 :9 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;s though it is such an invasion of property as may amount to a civil injury, and be [394] · redressed by a civil action. Yet to steal a reclaimed hawk is felony both by common law and statute;" 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. And thus much of qualified property in wild animals, reclaimed per industriam. 6 property, 2. A qualified property may also subsist with relation to an- 2. Qualified imals feræ naturæ, ratione impotentiæ, on account of their own propter iminability. As when hawks, herons, or other birds build in my potentiam. 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; 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 1 Hal., P. C., 512. Lamb., Eiren., 275. • 7 Rep., 18. 3 Inst., 109. t Bro. Abr., tit. Trespass, 407. u 1 Hal., P. C., 512. 1 Hawk., P. C., c. 33. "Si quis felem, horrei regii custodem, occiderit vel furto abstulerit, felis summa cauda suspendatur, capite aream attingente, et in eam grana tritici effun dantur, usquedum summitas caudæ tritico Charta de Forest., 9 Hen. III., c.13. (5) Dogs, from their participation in gradually relaxed, with the disafforesting the recreations of the chase, and their statutes, till these provisions became obdisposition to roam through forests and solete. (See Com. Dig., Chase, (M.).) attack game, became the subject of leg- The stealing or harboring of a stolen islation in an early period of our history. dog is punishable, under the 6 & 7 Geo. No person could keep a dog (which IV., c. 29, s. 31, 32, by pecuniary pencommonly meant a mastiff) without li- alty of not exceeding £20 over and cense from the king; and such as were above the value of the animal. (Burn, kept within any forest, for the safety of Just., tit. Dogs.) house and lands, were required to be expeditated, that is, to have three claws of the fore-foot cut off. But the law (6) The statute on this subject was repealed by the 7 & 8 Geo. IV., c. 27. 圈 3. Qualified property, ilegium. manner as it. does of the old ones if reclaimed and confined; for these can not, 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 propter priv. feræ naturæ, propter privilegium; that is, he may have the privilege of hunting, taking, and killing them, in exclusion of [395] 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 in which this privilege is acquired will be shown in a subsequent chapter. Secondly, qualified property in other mat ters and things. Qualified property arising out of the circumstances of the possession. 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 ancient windows, a corrupts the air of his house or gardens, fouls his water, or unpens and lets it out, or if he diverts an ancient water-course that used to run to the other's mill or meadow,d 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. As [396] 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 like. Here there is no absolute property in either the bailer or the bailee, the person delivering or him to whom it is delivered; for the bailer hath z Cro. Car., 554. Mar., 48. 5 Mod., 376. 12 Mod., 144. • 9 Rep., 58. b 9 Rep., 59. Lut., 92. 9 Rep., 59. d 1 Leon., 273. Skin., 389. |