ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 49 



questioned; when every single fact that gives rise to this rule of law 

 and that enables it to be ap])lied to those animals applies to these, 

 except the distance to which they may go or may not, or the time when 

 they are gone, althongh their return is absolutely certain and periodic, 

 can you predicate any ditference" in tbe principle? Can you say that 

 the bees, for instance, if it was the habit of the animals to go away in 

 November for 500 miles and come back with an unerring certainty nec- 

 essary to their life to the same control the next April — do you say the 

 rule of law that used to apply to them is gone? If I had a hive of 

 bees, Sir, some newly discovered animal, different from former bees who 

 made their honey in that way, who went to the southern States where 

 the roses bloom in the winter, and came back laden with the material 

 for their honey in April to the home that was necessary to their existence, 

 with an absolute and unerring certainty, I ask whether the property I 

 have in the ordinary bees in my other hives would be lost in them"? 



The Tribunal here adjourned for a short time. 



The President. — Mv. Phelps we are ready to hear you. 



Mr. Phelps. — I think. Sir, I may dismiss the distinction that is sought 

 to be drawn between the seals and the other animals in respect of which 

 property is predicted by the Common Law, on the score of seals being 

 migratory. 'Now says my learned frieiul, the animus revertendi does not 

 create property — it only continues it; it nuist have another origin besides 

 animus revertendi. Well, if I understand him correctly, I agree with 

 him. I do not say with regard to wild ducks, for instance, that return 

 by their instinct to the water adjoining my property, that ipso facto, 

 and if that were all, that makes them my property. 



If my friend means that there mast be based upon this animus rever- 

 tendi or in connection with it such a possession or contact with the ani- 

 mal as enables me to make him the fcmndation of a usefnl and valnable 

 industry, then I agree with him. We are not at issue upon that ])oint. 

 But what is i)ossession "? He says the animal must be confined. What 

 is confinement? Is it anything but the possession, the control, the 

 confinement, which the haliits of the animal admit of consistently with 

 his life and his preservation and usefulness? Is not that possession? 

 Many attempts have been made, as all lawyers know, to define the term 

 "possession" as applied to property. None was ever successful. If 

 there is a term that is difficult to define in words, it is the word "pos- 

 session" as applied to property, because the nature of the possession, 

 the character of it, and the means of it, are just as various as the kinds 

 of property that are found in the world. Possession of real estate — 

 what is it? — One might suppose that tliere you would be able to state 

 what is possession. But the moment you undertake to define it you 

 find that it depends upon the nature of the land. Is it a house in a 

 city like this, or is it a wild lot upon the mountains? Both arc real 

 estate. Both are governed by precisely the same rules of law. To 

 occupy the lot of wild land in the wilderness as I might occupy a 

 house in the city, is impossible. What then is the possession of the 

 wild land? It is such i)ossession as the property admits of. Slight 

 acts of possession — payment of taxes — recording of a survey — going 

 upon the land sometimes — keeping up a supervision. The question 

 that is left to the jury if the title to that land in a suit depends ui)on 

 possession is: whether this claimant has, during the requisite period of 

 time, exercised such acts of ownership as the property admitted of; 

 very slight perhaps, but still enough to indicate it. Can such a sort of 

 possession as that be regarded as the possession of a house in this city? 

 B S, PT XV 4 



