154 



proi)erty of tlic trespasser, Baron Wilde, an Eng:lish judge of liigh 

 authority, Mellor, J., concurring, said: "It has been urged in this case 

 that an animal /era' iiatiiroe could not be tliesubject of individual prop- 

 erty. But this is not so; for the couiinou law affirmed a right of proj)- 

 erty in animals even though they were fcrw naturcc, if they were 

 restrained either hy habit or inclosure witliin the lands of the owner. 

 We have the authority of Lord Coke's reports for this right in respect 

 of wild animals, such as hawks, deer, and game, if reclaimed, or swans 

 or fish, if kept in a private moat or pond, or doves in a dove cote. But 

 the right of property is not absolute; for, if such deer, game, etc., 

 attain their wild condition again, the property in them is said to be lost. 

 The principle of the common law seems, therefore, to be a very reason- 

 able one, for in cases where either their own induced hahits or the con- 

 finement imposed by man have brought about in the existence of wild 

 animals the character of fixed abode in a particular locality^ the law does 

 not refuse to recognize in the owner of the land which sustained them 

 a proi^erty coextensive with that state of things." 



In Amoryys.Flynn {10 Johns., New Yorlc, 102), which was an action 

 of trover for two geese of the wild kind, but which had become so tame 

 as to eat out of the hand, the court said: "The geese ought to have 

 been considered as reclaimed, so as to be the subject of property. Their 

 identity was ascertained; they were tame and gentle, and had lost the 

 power or disposition to fly away. They had been frightened and chased 

 by the defendant's son, with the knowledge that they belonged to the 

 plaintiff, and the case affords no color for the inference that the geese 

 had retained their natural liberty as wild fowl, and that the property 

 in them had ceased." 



So in Goff vs. Is^ilta {15 Wend., 550), which -was trespass for taking 

 and destroying a swarm of bees, and the honey made by them, it 

 appeared that the swarm left the plaintiff's hive, flew off, and went into a 

 tree on the land of another. The plaintiiT (according to the report of 

 the case) kept the bees in sight, followed th.em, and marked the tree 

 into which they entered. Two months afterwards the tree was cut 

 down, the bees killed, and the honey found in the tree taken by the 

 defendant and others. The plaintiff recovered judgment in the court 

 of original jurisdiction. Upon writ of error the higher court, speaking 

 by Mr. Justice Nelson, an eminent jurist who, at a subsequent date, 

 became a justice of the Supreme Court of the United States, said: 

 "Animals ferce naturce, when reclaimed by the art and power of man, 



