180 ARGUMENT OF THE UNITED STATES. 



APPENDIX TO PART THIRD, DIVISION II (MR, PHELPS'S 



ARGUMENT). 



ADDITIONAL AUTHORITIES ON THE QUESTION ON PROPERTY. 



[NOTE 1, PAGE 132. OPINION IN HANNAM VS. MOCKETT. (2 BAKNWALL AND CKES- 



WELL, 943.)] 



Baoley, J. A man's rights are the rights of personal security, per- 

 sonal liberty, and private property. Private property is either property 

 in possession, property in action, or property that an individual has a 

 special right to acquire. The injury in this case does not a fleet any 

 right of personal security or personal liberty, nor any property in pos- 

 session or in action, and the question then is whether there is any 

 injury to any property the plaintiff had a special right to acquire. 



A man in trade has a right in his fair chances of profit, and he gives 

 up time and capital to acquire it. It is for the good of the public that 

 he should. But, has it ever been held that a man has a right in the 

 chance of obtaining animals ferae, naturce, where lie is at no expense in 

 enticing them to his premises, and where it may be at least question- 

 able whether they will be of any service to him, and whether, indeed, 

 they will not be a nuisance to the neighborhood ? This is not a claim 

 propter impotentiam because they are young, propter solum because they 

 are on the plaintiff's land, or propter industriam because the plaintiff 

 has brought them to the place or reclaimed them, but propter usum et 

 consuetudinem of the birds. 



They, of their own choice, and without any expenditure or trouble 

 on his" part, have a predilection for his trees, and are disposed to resort 

 to them. But, has lie a legal right to insist that they shall be permitted 

 to do so 1 ? Allow the rigid as to these birds, and how can it be denied 

 as to all others"? In considering a claim of this kind the nature and 

 properties of the birds are not immaterial. The law makes a distinc- 

 tion between animals fitted for food and those which are not; between 

 those which are destructive of private property and those which are 

 not; between those which have received protection by common law or 

 by statute and those which have not. 



It is not alleged in this declaration that theserooks were lit for food ; and 

 we know in fact that they are not generally so used. So far from being 

 protected bylaw, they have been looked upon by the legislature as de- 

 structive in their nature, and as nuisances to the neighborhood where 

 they are established. Keeble vs. Hickeringill (11 East., 574) bears a 

 stronger resemblance to the present than any other case, but it is dis- 

 tinguishable. * * * But in the first place, it is observable that wild 

 towl are protected by the statute 25 11. 8, c. 11; that they constitute 

 a known article of food: and that a person keeping up a decoy expends 

 money and employs skill in faking that which is of use to the public. 



It is a profitable mode of employing his land, and was considered by 

 Lord Bolt as a description ol trade, That ease, therefore, stands on a 



