169 



is consistent witli tlie nature of tlie animals and as will snffice to 

 enable man to establish a husbandry in respect to them, whereby 

 the pri)duct may be regularly secured, is all that the law requires in 

 ortier to give property. Hence, in the cases of bees, pigeons, and deer, 

 actual manual custody is not vital, but ownership and legal possession 

 coexist when there is such control that the annual increase, by means 

 of the owner's care and industry, can be readily taken. Whether 

 boxing- up, or fencing, or actual confinement in some mode, of animals 

 fercc naturw, is essential, as a foundation of the right of property, 

 nnist always depend upon the nature of the particular animal. 

 Actual, continuous possession of the entire race is never necessary to 

 accomplish the ends for which society instituted property. The funda- 

 mental inquiry, in every case, I repeat, is whether the person claiming- 

 a right of property in particular valuable animals ferw naturw has 

 such general custody or control of the race, such capacity to deal u-ith it 

 as a ivhole, that he is capable of regularly taking their increase at the 

 l)lace to which they habitually, regularly resort, and which his care and 

 industry has provided as their habitation. This inquiry is the oidy 

 one at all consistent with, or that will certainly secure, those beneficial 

 ends for the accomplishment of which the law wisely enables man to 

 acquire, under given conditions, a property in such animals, and 

 protects his rights in that regard, as long- as he is capable of utilizing- 

 their increase for commercial purposes. Such right of i^roperty is 

 qualified only in the sense that it may be lost by the act of the 

 animal in leaving the premises of the owner and never returning-. 



As illustrating their view of the question of possession, the learned 

 counsel for Great Britain quote this passage from the treatise of Pollock 

 and Wright on Possession in the Common Law: "On the same ground 

 trespass or theft can not at common law be committed of living- animals 

 ferce naturae unless they are tamed or confined. They may be in the 

 ■park or pond of a person who has the exclusive right to take them, but 

 they are not in his possession unless they are so confined or so power- 

 less by reason of immaturity tliat they can be taken at pleasure with 

 certainty." p. 231. But the authors add, in the next succeeding para- 

 graphs, these significant words: "An animal once tamed or reclaimed 

 may continue in a man's possession although it fly or run abroad at 

 will, if it is in the habit of returning regularly to a place wJiere it is 

 under his comple control. Such habit is commonly called animus 

 rcvcrtcndi.^^ The same authors say: "To determine what acts will bo 



