/ 



/ 



136 The Frederick Gerring, Jr. 



The soundness of the decision in Young v. Hichcns^ has never 

 been questioned either in England or in the United States; it is 

 quoted with approbation in American text books and digests, and 

 more particularly in the American and English Encyclopedia of 

 Law, V. "Fish and Fisheries," p. 27; Addison on Torts'; Gould on 

 Waters.' 



Angell, Tide Waters,* observes: 



As the right of fishing in the sea, and in all inland and 

 navigable waters, is prima facie common to all, it follows 

 that an actual appropriation or manucaption must be made of 

 the fish to complete the right of property; and that when the 

 fish are taken they become the exclusive property of the 

 taker, unless voluntarily restored to their native element. 

 Bracton and Fleta both lay it down as the common law that 

 fishes are animalia qiicc in mari nascimter qiice cum capiuntur 

 \ captoria Hunt. But the possession of the fish must be com- 

 plete. 



The learned writer then quotes Young v. Hichcns} 

 I have no hesitation in following the decision in Young v. 

 Hichens,^ as I find it based upon the Roman law, which every- 

 where is considered as written reason, and in the absence of other 

 regulations has been accepted as law by all modern civilized na- 

 tions. The Institutes of Justinian de return divisione^ (translation 

 of Sandars) say: 



12. Wild beasts, birds, fish, that is, all animals which live 

 either in the sea, the air or on the earth, so soon as they are 

 taken by any one. immediately become by the law of nations 

 the property of the captor for natural reason gives to the first 

 occupant that which had no previous owner. And it is imma- 

 terial whether a man takes wild beasts or birds upon his own 

 ground, or on that of another. Of course, any one who en- 

 ters the ground of another for the sake of hunting or fowling, 

 may be prohibited by the proprietor, if he perceives his inten- 



'•6 Q. B. 606. 



2Am. ed. 1891, vol. 2, p. 689. 



3Ed. 1891, sec. 1. 



*Ed. 1847, p. 137. 



=Lib. 2, t. 1, LL. 12 and 13. 



