APPENDIX TO PART THIRD DIVISION I. Ill 



limited by positive law. Barbeyrae also argues that where a country is 

 taken possession of by a body of men, it becomes the property of that 

 body or of the person who represents them, and that therefore the right 

 of the individual members to take possession of portions of it or any of 

 the things therein contained, may be restricted or taken away, accord- 

 ing as the welfare of the community may demand. These principles 

 are applicable to the whole jurisprudence of acquisition by occupancy. 



The acquisition of things tangible must be made corpore et animo — 

 that is to say, by an outward act signifying an intention to possess. 

 The necessity of an outward act to commence holding a thing in do- 

 minion is founded on the principle that a will or intention can not have 

 legal effect without an outward act declaring that intention, and on 

 the other hand no man can be said to have the dominion over a thing 

 which he has no intention of possessing as his. Thus a man can not 

 deprive others of their right to take possession of vacant property by 

 merely considering it as his, without actually appropriating it to him- 

 self; and if he possesses it without any will of appropriating it to him- 

 self it can not be held to have ceased to be res nullius. 



The intention to possess is to be presumed wherever the outward act 

 shows such an intention, for that is to be presumed which is most 

 probable. 



The outward act or possession need not, however, be manual, for any 

 species of possession, or, as the ancients expressed it, custodia, is a 

 sufficient appropriation. 



The general principle respecting the acquisition of animals ferae 

 naturae is, that it is absurd to hold anything to be a man's property 

 which is entirely out of his power. But Grotius limits the application 

 of that principle to the acquisition of things, and therefore justly dis- 

 sents from the doctrine of Gajus given above, that the animal becomes 

 again res nullius immediately on recovering its liberty, if it be difficult 

 for the first occupant to retake it. He argues that when a thing has 

 become the property of any one, whether it be afterwards taken from 

 him by the act of man, or whether he lose it from a natural cause, 

 he does not necessarily lose his right to it together with the possession; 

 but that it is reasonable to presume that the proprietor of a wild ani- 

 mal must have renounced his right to it when the animal is gone 

 beyond the hope of recovery and where it could not be identified. He, 

 therefore, argues that the right of ownership to a wild animal may be 

 rendered lasting, notwithstanding its flight, by a mark or other artifi- 

 cial sign by which the creature may be recognized. 



With regard to fish, Voct argues that when they are included within 

 artificial boundaries they are private property, but that when they are 

 in a lake or other large piece of natural water, though the proprietor 

 of the land may have a right of fishery there, yet the fish are iu their 

 natural state of liberty, and consequently they can not be his property 

 until he has brought them within his power by catching them. 



It was disputed among the ancient Roman jurisconsult! whether a 

 wild animal becomes immediately the property of whoever wounds it 

 so that it can be secured, or whether it becomes the property of him 

 only who actually secures it. And Justinian confirmed the latter 

 opinion, because many circumstances might occur to prevent the 

 wounded animal being taken by him who wounded it. 



Bees, also, are of a wild nature, and, therefore, they no more become 

 the property of the ow ner < if the soil by swarming iu his trees than do the 

 birds which build in them ; and they are not his unless he inclose them in 

 a hive. Consequently, whoever hives them makes them his own. And 



