30 WILD ANIMALS. 



restrained of their natural liberty. And it seems difficult not 

 to extend the application of the same reason to the case of 

 fish in a pond ; the pond being private enclosed property and 

 the fish liable to be taken at any time according to the pleas- 

 ure of the owner. Lambert says 'fishes in streams and rivers 

 are millius bona, et occupanti conceduntur ;' but he and others 

 agree that it may be felony to take them in a trunk, stew or 

 pond : 'for a man hath such a possession of them that by their 

 restraint they cannot without help use their nature and for- 

 sake him.' So by Lord Coke: Larceny may be committed 

 of fish in a trunk or pond, because they are not at their natural 

 liberty, but as it were in a pound. The case of Grey and 

 Bartholomew [Owen, 20 Goldsb. 129] was a question be- 

 tween the heir and executor, which of them should have fish 

 out of a pond. There it was adjudged that the heir was en- 

 titled to them, upon the same principle that he should have 

 deer in a park. Hawkins considers it as clear that the taking 

 fish out of a pond is felony." ^*^ 



In an Indian case fish in irrigation tanks were held not to 

 be in possession.^"* 



Oysters, artificially planted in a bed clearly separated and 

 marked out for the purpose of retaining them, are property, 

 and one who takes them without the owner's leave is liable 

 in trespass. "They have been reclaimed and are as entirely 

 within his possession and control as his swans or other water 

 fowl that may float habitually in the bay. They were dis- 

 tinctly designated according to usage; and besides the de- 

 fendants had actual information of the ownership and they 

 can set up no greater right to take them because found in 

 their native element than tame pigeons in the air or a domes- 

 ticated deer upon the mountain." ^"^ 



"' 2 East P. C, 610. 



™ Reg. V. Revu Pothadu, Ind. L. R. 5 Madras 390, cited in "Behring 

 Sea Arbitration," No. 4, p. 32. 



_ "' Fleet V. Hegeman, 14 Wend. (N. Y.) 42. And see the cases cited 

 infra. 



