181 



pond of aiiotlior, with design to damnify tlie owner by friglitening' 

 away the wihl fowl resorting tlicreto, by which the wild fowl are fright- 

 ened away and tlio owner damnified. But in the first place it is observa- 

 ble that wild fowl are protected by the statute (25 H. 8. cii.): that they 

 constitute a known article of food, and that a person keeping up a 

 decoy expends money and employs skill in taking* that which is of use 

 to the public. It is a profitable mode of employing his land, and was 

 considered by Lord Holt as a description of trade. That case, there- 

 fore, stands on a different foundation from this. All the other instaiices 

 which were referred to in the argument on the part of the plaintiif, are 

 cases of animals sjiecially protected by acts of Parliament, or which 

 are clearly the subject of pro])erty. Tluis hawks, falcons, swans, i)ar- 

 tridges, pheasants, pigeons, wild ducks, mallards, teals, widgeons, wild 

 geese, black game, red game, bustards, and herons are all recognized 

 by different statutes as entitled to protection, and consequently, in the 

 eye of the law, are tit to be preserved. Bees are property, and are the 

 subject of larceny. Fisheries are totally different. The fish can done 

 harm to anyone and constitute a well-known article of food. Upon the 

 ground, therefore, that the i)laintiff had no iH'operty in these rooks, 

 that they are birds/era' naturw, destructive in their habits, and not 

 protected either by comm<xii law or by statute, and that the plaintiff is 

 at no expense with regard to them, we are of opinion that the plaintiff 

 had no right to insist upon having them in his neighborhood and that 

 he can not maintain this action." 



The case of Keeble v. Hiclter'nujill {11 East, 574), above referred to, 

 illustrates the rule in respect to animals ferae naturae that are useful. 

 That was an action on the case. The plaintiff was the owner of a 

 decoy pond to which wild fowl used to resort. At his own costs and 

 charges, he prepared and procured divers decoy ducks, nets, machines, 

 and other appliances for the decoying and taking of wild fowl, and 

 enjoyed the benefits in taking them. Tlie defendant, knowing these 

 facts, and intending to injure the plaintiff in his vivary, and to 

 fright and drive away the wild fowl, used to resort thither., and to 

 deprive him of his profit, frequently discharged loaded guns at the 

 head of the pond and vivary, whereby he drove away the wild fowl 

 then in the pond. There was a verdict for the plaintiff. Chief Justice 

 Holt said: "I am of opinion that this action doth lie. It seems to 

 be new in its instance, but is not new in the reason or i)rinciple of it. 

 For, first, this using or making a decoy is lawful; secondly, this 



