PROPERTY IN GAME. 15 



ing the animal, though without legal authority. But the bur- 

 den is on the defendant to show that the capture was illegal.'^ 

 The general subject of game laws will be treated of in an- 

 other part of this work."^ 



7. The Increase of Wild Animals — It has been already said 

 that a qualified property may exist in animals ratione im- 

 potentia, on account of their own inability.** "As when 

 hawks, herons or other birds build in my trees or conies or 

 other creatures make their nests or burrows in my land and 

 have young ones there, I have a qualified property in those 

 young ones till such time as they can fly or run away, and then 

 my property expires; but till then, it is in some cases tres- 

 pass, and in others felony, for a stranger to take them away. 

 For here, as the owner of the land has it in his power to do 

 what he pleases with them, the law therefore vests a property 

 in him of the young ones, in the same manner as it does of the 

 old ones if reclaimed and confined ; for these cannot through 

 weakness, any more than the others through restraint, use 

 their natural liberty and forsake him." ^^ 



Larceny may be committed of the young of those animals 

 that are reclaimed and serve for food, but of the young of 

 those animals that are still untamed, though in a park, and 

 though the owner has in them the kind of property we have 

 spoken of, propter impotentiam, larceny cannot be committed — 

 as of young fawns in a park, young conies in a warren. So 

 of the young of wild or unmarked swans, and of those animals 

 esteemed base. Otherwise, of young pigeons in a dove-cote, 

 young fish in a net or trunk, young hawks in a nest.*^ 



Where the lessee of islands sued a fisherman for damages 

 for taking a sea-gull's egg, it was held that a man had a pos- 

 sessory right to any wild bird which was on or over his land, 



°' James v. Wood, 82 Me. 173. 



'= See Title VI, Ch. II, infra. 



^ See § I, supra. 



"2 BI. Com. 394- °° I Hale P. C. 510, S"- 



