SPHERE OF STATE GOVERNMENT 6l 



The royal grants to a private individual created an estate 

 separate and distinct from the land which did not pass with 

 the land upon assignment. Therefore it might happen that 

 the right to take the so-called beasts of the warren would be 

 held by one person to the exclusion of the owner of the 

 soil. 25 This was called ratione privilegii, a right which is 

 valid today if any of the old franchise still exists. 28 



Since the rise of the common law, the king's property in 

 animals ferae naturae, with the exception of swans, stur- 

 geon, and whales, was essentially no different than that of 

 any other landowner. He could afforest his demesne lands 

 at will but if he afforested others, he must buy the right 

 from the landowners. The only difference lay in the fact 

 that game in his forests was given additional protection by 

 a special code, known as the Forest Law, a protection which 

 he extended to certain favored landowners for their parks 

 and warrens in varying degree by means of the special 

 franchises. 



The King had Qualified Property in Game Within the 

 Forests: Once the wild game had left the royal forest the 

 king's property in it was lost. A famous case cited by Keil- 

 way and copied by Manwood 27 well illustrates this point. 

 The case was an action for trespass against a forester who 

 entered on private lands adjoining a royal forest for the 

 purpose of driving back four deer which had escaped there- 

 from. The court in its decision drew a distinction between 

 ownership in tame animals and wild ones, holding that deer 

 being animals ferae naturae, the kind had property in them 

 only so long as they remained in the forest. But neither the 



2 5 Duke of Devonshire v. Lodge, 7 B. & C. 35 (1827). 



26 Holdsworth, op. cit., vol. vii, p. 492. 



27 Manwood, John, Treatise and Discourse of the Laws of the Forrest, 

 London (1598), p. 202. Manwood refers to this case but does not cite 

 it other than to Keilway. 



