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



destroy his neighbour's land next adjoinintr, his neighbours cannot have an action 

 on the case against liim who jual^ea tlie said coney-boroughs; lor so soon as the 

 coneys come on his neighbour's land he may kill them, for they araferoc naturce, and 

 he who makes the coney-boroughs has no propertj^ in them, and he shall not be 

 punished for the damage which the coneys do in which he has no property, and 

 which the other may lawfully kill. 



In other words, if lie had the property in tliem, and kept them on his 

 land, he would be responsible for the damage that they did; but being 

 no man's property — being the property of the first man who kills them — 

 and the owner having the exclusive right to kill them while on his land 



and no more, he is not liable for the damage that they did. 

 1029 The last case I intend to cite is an interesting case, which per- 

 haps, in this very dreary and dry subject is something to say for 

 it. It is the case of Ihhotson v. Pealc, which is reported in the 34th 

 volume of the Law Journal Eeports, New Series, page 118. It was 

 decided m 1865. The action was a very curious one : the facts are these. 

 There were two adjoining owners. One was the Duke of Rutland, who 

 had uj)on his land grouse preserves, which he took great pains (to use 

 an exi^ression used by my friends in their argument), to "cherish". 

 Adjoining him, was a neighbour who was not unwilling to get some 

 benefit from the fact of his contiguity to these same preserves, and who 

 had resorted to the most unsportsmanlike and unneighbourly means of 

 enticing the birds to leave the Duke of Rutland's preserves and come 

 upon his ground; and he had done that by seeking to decoy tliem by 

 putting down food in particular places contiguous to the Duke's pre- 

 serves, with the result that he did induce a considerable number of the 

 grouse to come to him. 



Thereupon the gamekeeper of the Duke, not to be out-done, thought he 

 would endeavour to deprive the unneighbourly neighbour of the advan- 

 tage, and he proceeded to fire off, in the neighbourhood where this prov- 

 ender was j)ut as an inducement to the grouse, guns, rockets, fireworks, 

 and things of that kind to drive them away from the lands to which 

 they had been so enticed, and back again to their usual ground on the 

 Duke's preserves. 



Thereupon the neighbour brought an action against the Duke's repre- 

 sentative for injuring him by these means. The Duke in answer said, 

 " As to so much of the plaintiff's case as alleges"— so and so — 



the defendant says that before the time of the committing of the said supposed 

 grievances in the first count mentioned, his Grace the Duke of Rutland was seised 

 in fee of certain land abutting on and next adjoining the land of the plaintiif in the 

 first count mentioned, and was entitled to the exclusive right of shooting, killing 

 and taking grouse on his land ; and the said Duke, before the committing of the said 

 supposed grievances, had gone to great expense in getting up and preserving great 

 numbers of grouse on his lands, as the plaintiff well knew ; and the defendant says 

 that just before the committing of the said supposed grievances the plaintiif fraudu- 

 lently and wrongfully, and with intent to lure and entice the said grouse away from 

 the said lands of the said Duke on to the lands of the plaintiff and to obtain for 

 himself the benefit of the expense so incurred by the said Duke as aforesaid, laid 

 and placed on the land of the plaintiff near to the lauds of the said Duke, quantities 

 of corn and other substances on which grouse feed, and thereby then lured and 

 enticed the said grouse. 



Thereupon he goes on to say that all he did by his fire- works was to 

 get them away from the spot to which they had been enticed. The 

 question was. Did an action lie? Held that an action, even in that case, 

 lay against him. The Duke had no property in the grouse. They were 

 only his so long as they were on his land, and he had the right to take 

 them while on his land, and no more than a right to take them when 

 they were on his land. And Lord Bramweil who interposed in the 



