62 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



manner in -vvliich things of the same kind are liabitually tised and enjoyed. "We 

 uuist distinguish between moveable and immoveable property, between portable 

 objects, and those which exceed the limits of portable mass or bulk. Further, wo 

 must attend to the apparent intent with which the acts in question are done. An 

 act which is not done or believed to be done in the exercise or assertion of dominion 

 ■will not cause the person doing it to be regarded as the de facto exerciser of the 

 powers of use and enjoyment. 



Again, on page 14 lie says: 



And in order to ascertain whether acts of alleged occupation, control, or use and 

 enjoyment, are effective as regards a given thing we may have to consider. 



"(rt) Of what kinds of physical control and use the thing in question is practically 

 capable ; 



{})) With what intention the acts in question were done; 



(c) Whether the knowledge or intention of any other person was material to their 

 effect, and if so, what that person did know and intend. 



Then on page 6 he says: 



When the fact of control ia coupled with a legal claim and right to exercise it In 

 one's own name against the world at large, we have possession in law as well as in 

 fact. 



All that, Sir, is very obvious. It is felicitonsly stated, but it is not 

 new. It is not new to that class of lawyers who have been accustomed 

 to apply law to human affairs. There are two kinds of law, I may be 

 l^ermitted to say : the law that is practicable and the law that is imprac- 

 ticable — that is visionary — that is theoretical. The one comes out of 

 the closet of the man who has never been anywhere else; the other 

 comes from the constant application of the principles of law to the 

 administration of human justice, never separating law from facts, 

 always remembering that law depends upon facts, and their changes, 

 variations, conditions, and circumstances; and that no other rule can 

 be stated, except that when a principle is established, it is in the light 

 of that principle that all questions arising under it are to be considered. 



What then, still having in mind my friends proposition, which as I 

 have said is sound enough if I understand itriglitly — if he did not mean 

 to carry it further than I think he did — that there must be something 

 besides the animus revertendi — there must be some i^ossession, control, 

 something practicable, something useful, something entitled to be pro- 

 tected — tiiat annexes itself to the animal. In other words, the animus 

 revertendi is in itself only an evidence of possession. It is evidence or 

 an element, as you please to call it, in this complex qitestion of fact and 

 law, of what is possession. The animus revertendi, in the case of an 

 animal, of this description, is one element — not enough of itself I 

 admit— but a strong element, when it is connected with the recognized 

 control and the recoguized usefulness. Now what is that? It is, in the 

 first i)lace, as I have said, a possession that the nature of the property — 

 the nature of the animal (to come to this particular case), admits of. It 

 varies with every different animal. It is different with tlie Bee, with 

 the Pigeon, with the Deer, with the Swan, and with the Seal; because 

 what is a useful possession with one is tlie destruction of the other. 

 And it varies in the next ])lace, with the requisites of the usefulness of 

 the industry, the husbandry, that makes it vahtable. 



Now in the cases cited by Mr. Carter of Blades v. Higgs; Davies v. 

 Powell; and Morgan v. The Earl of Abergavenny — those three cases in 

 respect of deer tliat were cited in the opening, and which are quoted 

 very largely, if not entirely, in the Appendix, and some parts of the 

 United States' Argument. What took i)lace there? Everybody, that 

 knows anything of the laws of England, knows that the deer, while 

 ferie naturw, is not in itself property. If one buys a deer forest in Scot- 

 laud of 20,000 acres, the only value of it is the deer. The laud is good 



