ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 247 



case, and not tlie Judgment. I have the reports here, and they are at 

 the service of any Members of the Tribunal who desire to look at them. 

 Then it x)roceeds. 



Error from the Madison Commou Pleas. Kilts sued Goff in a justice's court in 

 trespass for taking and destroying a swarm of hees, and the honey made by them. 

 The swarm left the hive of the plaintiff, flew off and went into a tree on the lands of 

 the Lenox Iron Company. The plaintiff' kept the bees in sight, followed them, and 

 marked the tree into which they entered. 



This was obviously a swarm which the Plaintiff had hived; he was 

 able to identify them ; he keeps them in sight, follows them, and marks 

 the tree into which they enter. 



Two months afterwards the tree was cut down, the bees killed, and the honey- 

 found in the tree taken by tlie defendant and others. The plaintiff' recovered judg- 

 ment, which was affirmed by the Madison Common Pleas. The defendant sued out 

 a writ of error. 



By the Court, Nelson, J. : Animals ferai nattirce, when reclaimed by the art and 

 power of man — 



That is the true doctrine of reclamation : 



are the subject of a qualified property; if they return to their natural liberty and 

 wildness, without the animus revertendi, it ceases. During the existence of the quali- 

 fied property, it is under the protection of the law the same as any other property, 

 and every invasion of it is redressed in the same manner. Bees are /era' naturw, but 



when hived and reclaimed, a person may have a qualified property in them by 

 1016 the law of nature, as well as the civil law. Occupation, that is hiving or 



inclosing them, gives property in them. They are now a common species of 

 property, and an article of trade, and the wildness of their nature, by experience 

 and practice, has become essentially subjected to the art and power of man. An 

 unreclaimed swarm, like all other wild animals, belongs to the first occupant— in 

 other words, to the person who first hives them; but if the swarm iiy from the hive 

 of another, his qualified property continues so long as he can keep them in sight, and 

 possesses the power to pursue them. 



That is all I think tliat I need read of that case. 



Now, the case of Blades v. Eigr/s is on page 119 ; and I have the report 

 of that case here also. It was decided by the House of Lords in 1865. 

 You will find it reported in the 11th "House of Lords' Cases", at page 

 621. The sole question in the cavse was this; — Was the property in cer- 

 tain rabbits killed by a trespasser on the land of another person, in the 

 man who killed, them or were the dead rabbits the property of the man 

 on whose land they were killed? And 1 yesterday stated, subject to 

 being corrected by the Marquis Venosta if I am wrong, that, according 

 to the Eoman Law, the actual taker, though a trespasser, would have 

 the right of property; wherein the American and the English Law differ 

 from the Eoman Law. The sole question, therefore, in the case was, to 

 which of two persons did the property belong? The rabbits were shot, 

 and the question was, to whom they belonged? 



ISTow, Lord Gbancellor Westbury, at page 631, thus states the law. 



My Lords, when it is said by writers on the common law of England that there is 

 a qualified or special right of property in game, that is in animals /e»-a; naturce which 

 are fit for the food of man, whilst they continae in their wild state, I apprehend that 

 the word "property" can mean no more than the exclusive right to catch, kill and 

 appropriate such auimals, which is sometimes called by the law a reduction of them 

 into possession. This right is said, in law, to exist ra/ione soli or ratione privUegii, 

 for I omit the two other heads of property in game which are stated l)y Lord Coke, 

 name\j propter induMriam and ratione iinpotentice, for these grounds apply to animals 

 which are not in the proper sense /era; natHrw. Property ratione soli is the common 

 law right which every owner of laud has to kill and take all such animals /era; natures 

 as may from time to time be ibund on his land, and as soon as this right is exercised 

 the animal so killed or caught becomes the absolute property of the owner of the 

 Boil. 



