42 



FOREST AND STREAM. 



L' 10 !88il 



another's and kills it then;, the property remains in himself; 



t'arjgei starts game in one man's chaise or free warren, 



and hunts it into another liberty, the property continues in 



i In- u\\ iiri' of the chase or Free warren; if a man staits game 

 on another's private grounds and kills it there, the property 



ii ['i fflga to him in whose ground it was killed, the property 

 arising rattotie told. Whereas it alter being started thete, it 

 is killed in the grounds of a I lord person, the property vests 

 in the person who Started and killed it, though guilty of a 

 trespass agaiusl both the owners. Christian shows that 

 these distinctions were properly made by Blackstone and 

 were recognized by Lord Kenyon. but states that such dis- 

 tinctions could never huve existed if it were true that all the 

 was the King's property, for then the maxim /// 



, . .,,/,: ;„/•/. potior est mid ■■ pt 8 eeb rtfis must have prevailed. 



CliniSTlAK's AlUHIMRNT SUSTAINED. 



Judge Stephens, in his Commentaries (vol. TL. p. 17, 1st 

 Am. ei l.i. treatsoftho point in diderenee between Black- 

 stone and Christian: 



"But Blaekstone's views on this subject have been with reason 

 controverted, and the true rule seems always to have been that 

 which is stated by the learned antli 

 . viz: that in general, every 



nhas o right to hunt, etc.. < 



hii 



m.K/ 



Justice Coleridge tints expressed his views: 

 •Oir. Christian, in a note on this passage, has. 1 think, successfully 

 controverted thegeneral doctrine laid down by the author [Black- 

 -;: .11 I re ' ' i tl out that ii cannot follow that the Jung and 



his grantees have a sole tight to take game, either from feudal prin- 

 ciples, because he is the ultimate proprietor of all laud, nor from the 

 foct that animals fero natm-cebrzhontewciinUa, And he cited a 

 , ,:■:■:.. ...: to 11 to sliow liiut, at common law every person 



ml lime soft [from the EaCI I hat I vi thesoilj had a right to take 



game on his own lands." 



Mr. Hovendeti, one of Blaekstone's anaotators, joins in this 

 opinion, and another author says; 



"But though re. ■■■".. ire not. while living. t!.e per- 



sonal chattels of the owner of the soil, yet if they are found and 

 killed on the land by a trespasser, the qualified property in them hy 

 ,',.:,,,, .,.; ■ ' come* absolute in the owner of the soil." Perlrin's 

 edition ofWilliama on Executors, ni. ii.. bk ii.. s t. 

 TltB LAXD-Off-NEIt HAS A PUOIOCKTY IN (1.LME OX HIS LAND. 



This doetrine so clearly expounded, that the owner of 

 laud has a property in 1 he game thereon, is fully sustained 

 by judicial opinion. As far back as 1697, Lord Holt held 

 thai a man has a property vqMo/16 foe* in animals/;/-// nut arte 

 mi bis Sand; but: that Ihe property ceases when they leave or 

 arc hunted off the land. (Sutton v. Moody, 1 L'd Raytn. 250). 



Judge Burrows said, in the early part of thepreseut century, 

 that: 



"The defendant ratione noli of his woodland, and Mr. Townsend [the 

 otrai-i ■ ol" adjoining property! ml tone, soli, had a species of property 

 in the hares on their soil. This appears to be the settled doctrine 

 from the ease of Sutton v. Moody." ilieaue v. Clayton, 1 Taunton, 

 e:i 



lu another leading English ease Baron Martin held that 

 ••'in- properly in wild grouse is not absolute in any one; it is a wild 

 bird,./V." liaturm. So tongas the grouse is upon a man's land he 

 has a possessory property in it; but as soon as it flies or goes off his 

 land, his property is gone." * * * "The right at common taw, 

 therefore, to such animals is very peculiar. So long as they remain 

 Upon a man's land they belong to him. but, the moment they leave the 

 lain! ids property is gone." (Lord Lonsdale, v. Rigg, 11 Exch. 054. 1 



The language of the court in a recent decision is: 



"There appears to be .a connection between the soil and animals 

 fern ;i.,fe,-'. so far as the ownership in both is concerned." (Stan- 

 ley v. Birch. Lou Tim English) Ha; 8, 1881 r p 65.) 



Sir. J. Roinilly held that: 

 1 -By the common law of England the grant of the land in fee simple 

 confers ttpon the grantees end lessees thereof: the exclusive 

 right, of killing and taking »U game, beasts of chase, and animals 

 uhicll are propel ie /i," v.;,,,,/-. which may at anytime be upon 

 their land, so long as such animals may he and remain upon the land 

 BO granted or demised." (Kalklaml Islands Company v. Regina, 10 

 Jur. X. H..H.ir., 



TUB HOUSE OF LOItOS CONt'titMS Till! LAND-OWNERS PfiOl'- 

 * Eld V IK GA.ME. 



This question came before the highest court in England a 

 few years ago In the ease of Blades v. Higgs. The opinions, 

 which lay down the common law very fully and clearly as 

 it is now and has been for centuries, discuss and sustain the 

 eases of Sutton v. Moody, and Lord Lonsdale v. Rigg. 



Blades, the plaintiff, was a licensed dealer in game at, 

 Stamford, Lincoln county. Between seven and eight o'clock 

 in Hie morning of a certain day he bought of one Yates two 

 bags containing about ninety rabbits, and ordered them to 

 be consigned to him at Stamford. At nine o'clock he went 

 to the Midland Station, where the rabbits had arrived, paid 

 the freight aud was putting them in a barrow to be carried 

 away, when one of the defendants, requested permission to 

 look into the bags. The defendants were the steward and a 

 servant of the Marquis of Exeter, and claimed that the rab- 

 bits belonged to the Marquis. The request was refused. 

 Two policemen then came along and were urged by the de- 

 fendants to ascertain the eontantsof the bags. One of them 

 tvas allowed to look inside, and when it was discovered that 

 ihe bags contained rabbits, the policemen permitted, the. dc 

 fondants to take them away. The plaintiff resisted, nntil 

 be was advised to do so no longer by the policemen, The 

 flcl'endant.s having obtained possession, sent for a game 

 dialer named Bollard and sold him the rabbits, the plaintiff 

 protesting. 



The plaintiff then brought this action against the defend- 

 ants for conversion of the rabbits, and for taking them from 

 him by force. , laats plead in justification that 



the rabbits belonged to their master, the Marquis of Exeter, 



On the trial the defendants offered to prove that the persons 

 wtrO transferred the rabbits to the plaintiff, went on the 

 Marquis's land, took the rabbits, killed them, put them in 

 bags tlnrc and earned them to the railway station. The 

 defendants contended that the property in the rabbits was 

 in the Marquis, and this was the point, of the case. An 

 appeal was taken to the House of Lords, where the follow- 

 ing decisions were rendered : 



THE LORD CHANCELLOR'S OPINION. 



The Lord Ohan.feUcrr.~My Lords, when it Is said by writers on the 

 common law of England, that there is u qualified or special right of 

 property in game, that is in animals, feral miliirtr. which are fit for 

 the food of man, while they continue in their wild state, I apprehend 

 thai the word property can mean no more than the exclusive right to 

 catch, kill and appropriate such animals which is sometimes called 

 by the law a reduction of them into possession. This right is said in 

 law to exist ratione soli or ratione pririleyii, for I omit the two other 

 heads of property in game, which are stated by Lord Coke, falso by 

 Blackstone] namely, propter industridrh and ratione impotentite. 

 for these grounds apply to animals which are not in the proper sense 

 fem natUra . Property ratione soil is the common law right which 

 every owner of land has to kill and take all such animals feras natures- 

 as may from time to time be found on his land, and as soon as this 

 right is exercised, the animal so killed or caught becomes. the abso- 

 lute property of the owner of the soil. 



"The question in the present case is whether game found, killed 



and token upon my land by atr i Otnes my property as 



mie-ii a« it it bad been killed and taken by myself, or my servant by 

 my authority. Upon principle there cannot, I conceive, be much 

 difficulty. If property in game be trnile absolute by reduction 

 into possession, such reduction must not be a wrongful act, for 

 it, would be unreasonable to hold that the act of the trespasser, that 

 is of a wrong-doer, should divest, the owner of the soil of his qualified 

 property in the game, and give the wrong-doer an absolute right of 

 property, 60 the exclusion of the rightful owner. But in game, when 

 lolled .•uid lak. -ii. there is absolute property in some oue, and there- 

 fore Hie property in game found and taken by u, trespasser 00 the 

 land of A must vest either m A or the trespasser; and if it be unrea- 

 sonable to hold that the property vests in the wrong-doer, it must of 

 UeCBBsUg be vested in A. the owner of Ihe soil. " * 



"These propositions appear to prove clearly that game, found and 

 killed by a trespasser under such circumstances as that it would be the 

 absolute property of the owner of the sol], or of the owner of right 

 of free warren, :f it had been found and killed by such owner, instead 

 of by the trespasser, does in law become the absolute property of the 

 proprietor of the soil or privilege immediately on its being so caught 

 and killed by the trespasser. * '■ * 1 am therefore of the opinion 

 that the learned counsel for the defendants on the trial at Sisi Prius 

 were right, in requiring the evidence to be admitted, which they pro. 

 posed to give, in order to prove that the property in the rabbits was 

 in Lord Exeter, and that the learned judge was wrong in his direction 

 to the jury, that, such evidence was immaterial, and ought not, thei e 

 fore, to be admitted." 



LOUD CBANWORTIl's OPINION. 

 Lo/-// Crttnvirtlt.— "My Lords, I think it is safe i iml just to adhere 

 to the law as laid down by Lord Holt fin Sutton v. Moody, supra]. 

 He had evidently considered the subject carefully, and according to 

 his view of the law, the rabbits killed by a trespasser on the lands of 

 Lord Exeter certainly belonged to his lordship. Lord Holt's opinion 

 was followed in Churchward v. Studdy. * * * This case was fol. 

 lowed by that of Lord Lonsdale v. Rigg, afterwards affirmed in the 

 Exchequer Chamber, where the subject was carefully considered. 

 * • * It was argued before this House that if game Mllcd by a 

 poacher is the property of the owner of the soil, then every poacher 

 is guilty of larceny. But that is a fallacy. Wild animals, while- 

 living, though they are, according to Lord Holt, the property of the 

 owner of the soil on which they are living, are not his personal 

 Chattels SO as to be the subject, Of larceny. They partake, while, 

 living, of the quality of the soil, and are. like growing fruit, con- 

 sidered as part of the realty. If a man enters my orchard and fills 

 a Wheelbarrow with apples which he gathers from my trees, he is not 

 guilty of larceny, though he has certainly possessed himself of my 

 property: and the same principle is applicable to wild animals. 



"it was further said that the late Game Act, which authorizes the 

 stopping of a poacher having game in his possession, and the selling 

 of the game for the benefit of the parish, shows that the Legislature 

 could not have understood the game to be the property of the person 

 On who ,;e land it was killed: for in that case, it was said.it would 

 have been en unjust appropriation of the property of another. But 

 this arrangement was probably made because il might often be im- 

 possible to know on whose land any particular head of game had 

 been killed, and was considered to be on the whole an arrangement 

 beneficial to the landowner." 



LORD CHELMSEOKD'S OPINION. 

 Lord Chelmsford. — "My Lords, the question to be determined on 

 this appeal is, whether animals, fern- nut, me. killed or reduced into 

 possession by a trespasser on the land of another, become the prop- 

 ertyof the owner of the land. * * * By the civil law. the person 

 Who took or reduced into possession any animal, fera HaturtS, 

 although he might be a trespasser in so doing, acquired tbe property 

 in it. * * * If the same rule prevails in our law, then the rabbits 

 in question were not the property of Lord Exeter, but of the poacher 

 who took and killed them upon his laud. This doctrine, however, as 

 to the right of property in wild animals captured seems never to have 

 prevailed in our law to its full extent. With respect to animals in a 

 wild and unreclaimed state there seems to be no difference between 

 I he R an and the common law. A distinction was suggested in ar- 

 gument la tween wild animals which are unprofitable and regarded 

 :■, - < i i,in and those which tire (It for food, and therefore profitable; 



i ,1 ii was Said of the latter, that by the law of England there is al. 

 ways a property in game, whether alive or dead, in somebody. But 



i,:- i- nol reconcilable with the authorities. Idling ease of Swans, 

 ; ;:,,],. i,,,. | s * v where a person is merely the owner of the land 

 without any other privilege attached to it than that which the owner- 

 ship confers, he can have no property in the wild animals upon the 

 land so long as they are in a state of nature and unreclaimed. In- 

 deed this notion of the existence of property in wild animals is in- 

 consistent with the whole current of the authorities from the Tear 

 Books downwards, which almost invariably show that no action lies 

 merely for taking away hares, conies, phesants and partridges: and 

 that when the taking animals of this description is stated in addition 

 to t lie i respass upon the land, the plaintiff shall not say deputes, i -de.. 



"With respect to wild aud unclaimed animals, I b 



i tl bat no property exists in them ■ ■ they remain in 



I In- si ale of nature II is also equally certain that when killed or re- 

 claimed by i lie owner of the land on which they are found, or by his 

 authority, they become at mice his property absolutely when they 

 , , lil.l and in aqtiuliiiod manner when they are reclaimed. 



tad ihe only difficulty whicharises upon 

 the subject of property in wild animals is that which the present case 



presents. As animals fertp natvra, when killed or reduced into 

 possession by the owner of the land where they are found, or by his 

 authority, become instantly his property, does the unautc lr 

 of a trespasser by the very tie: of killing them convert, them at once 

 to tbe use of the owner of the land; * * The ease of Sutton v. 

 Moody has always been regarded as an authority on this point, and 

 as far as I can ascertain has never been questioned. It was recognized 

 in Churchward v. Studdy. in Graham V, Ewart, by Baron Martin in 

 Lonsdale v. Rigg. And in the last case when before the Court of Er- 

 ror, Mr. .Justice Coleridge said: -The grouse shot on the land of the 

 plaintiff |i', c. shot by the defendant, a wrong-doer belonged to him 

 according to all the authorities.' It certainly would not be right to 

 disturb a principle of law- so established unless it: could he clearly 

 shown to be erroneous. And it appears In me not only that 

 it is well founded, hut that very strange consequences 

 would follow from adopting the view cot. tended for Ivy 

 the appellant. If he is right in saying that the owner of the 

 land has no property in game, unless it, is killed by him or by his 

 authority, it will necessarily follow that, a poacher reducing the game 

 into possession and thereby as a possessor, though a wrong-doer, hav- 

 ing aright to it against all the world but the true owner, there being 

 no Owner to challenge his possession, might maintain au action 

 against the owner of the land for taking the game I ruin him. even 

 upon the land itself where the game was killed. It is much more 

 reasonable to hold that the trespasser having no right at. all to kit' 

 the game, can give himself no property in it by his wrongful act: and 

 that as game killed or reduced into possession is the subject, of prop- 

 erty and must belong to somebody, there can be no other owner of it. 

 under these circumstances, but the person on whose ground it is 

 taken or killed. 



ltd " ,, of the ease will render the distinction suggested in the 

 course of the argument, between killing and carrying an By the rab- 

 bits, as parts of one and the same continuous act, and killing and 

 leaving them upon the land, and coming back for tliem. wholly im- 

 material. For the act of killing being at once that which made the 

 rabbits the subject of property, and reduced them Into possession, 

 whether they were for an instant, or for hours upon the land, they 

 equally belonged to the owner of the land." (Blades v. Higgs, 34 

 l.av, .1, Com. Pleas, SSIS.) 



AMERICAS LAW FOLLOWS THAT OF ENOLAND. 



English decisions are of the utmost importance in deter- 

 milling the law of this country, because our common law is 

 based upon and derived from the English common law, the 

 States generally having adopted it either by legislative pro 

 vision or constitutional enactment The Roman or civil law. 

 as U is called, is a system distinct front the English law, nud 

 prevails in only one of the United Stales, viz.: Louisiana. 

 American decisions, particularly on fill questions pertaining 

 to animals ,// ra- natural el domitct natwm, cite and rest upon 

 English authorities. (Sec State v. Holder, 81 N, C, 527; 

 Norton v. Eadd, 5 K. 0., 203; State v. Lymtts, 38 Ohio State 

 -till); \\ 'healthy v. Harris. 4 Sneed (Tcnii.) -108; Gillet v. 

 Mason, 7 Johns. 16; State v. M'Ouffie, 34 N. 11. 623; Stat? 

 v. Sumner, 2 Ind. 377, etc.) 



The late Justice Sharswood, of Pennsylvania, iu his well 

 known edition of Blaekstone's Commentaries, cites fully 

 from Christian's argument and doctrine that property in 

 game is not vested in the King of England, also from Cole- 

 ridge's opinion iu support of Christian. Professor Coolcy, 

 of Michigan Uiiiversity, calls attention to these views hi a 

 note to his edition of the same work, and also to Mr. Hoven- 

 den's statement that the English legislation has recognized 

 the correctness of Christian's position in the statute of 1 and 2 

 fin. IV.. o, 32., which does away with the qualification 

 previously required to entitle a person to take game. Chris- 

 tian's note is also given qnite fully in au edition of Black- 

 stone published in 1862 by Mr. Wendell, State reporter ol ' 

 New York. And Professor Washburn of Harvard Univers- 

 ity, in his treatise on the American Law of Heal Property 

 (vol. I., o. 15, 4th ed.), speaks of this subject while treating 

 of movable things, which, while having the character of 

 personalty, may acquire that of realty, though, at the time, 

 temporarily disannexed therefrom, and which would pass 

 accordingly with the land, He says, (citing Blades v. 

 Higgs and Rigg v. Lonsdale) : 



'•In England it has lately been held that the owner of land has a 

 property in the wild game thereon rations toH,tot the killing of 

 which he may have an action against a stranger. And this right of 

 propertj attaches eo instanii that the animal is killed, bill not until 



then, oof does it make any difference, m this respect, whether it is 

 killed bj the- owner of the laud or a trespa-s.r upon it. There can be 

 ., ,. inanimate/era natura running nU, so king as they 

 are alive; and if such animal voluntarily pass from the land of one on 

 to that of another, the latter may at oucekill It, and thereby acquire 

 a property ink." 



Another author citing both English one! AmerietrndeeisionS 

 says : 



; i .,....',■■ , - I oi Nils action [trespass] 



!,,. | Hfl must show, either that they were already captured, or 



domesticated, and of some value, or that they were dead; or that the 

 defendant lulled or tool; them on the plaintiff's ground; or that the 

 game was started there, and k died or capl ured elsewhere, the plaintiff 

 asserting his local possession and property by joining in pursuit.'! 

 i ;,-_,, ileaf's Evidence. Wl.H.,S6SD. 



THE AMERICAN LANDOWNER. HAS A PEOPEKTT IN I, AMI', 

 ON HIS LAUD, 

 The language of a New York decision, iu an action for 

 trespass for taking and destroying a swarm of bees, which 

 have frecmently been held to be animals ./Ww mitum, is: 



"II is said the owner of the sod is entitled to the tree and all within 

 it. This may be true, so far as respects an unreclaimed swarm, 

 w'hile it remains then in that condition, it may, like birds or other 

 mime itrame laws out of the question j belong to the owner or oocu- 

 og to the law of nature, 

 ,, the individual who first 

 property iu it, but since 

 re,_ amotion of Ihe right of 

 ii as the cultivated 

 MMinreii a title to it 



• enjoyment of the sport 



(Oo-ir could be 



pant of tbe forest, rattan ■ 

 where, prior occupancy alone gai 

 hived the swarm, would be entitled 



of hunting and fowling, whenevt 



found; has given way in the f.rogress of society to the establishment 

 of rights of property better defined and of a more durable character, 

 Hence no oue has B right to invade the iuclostire of another for this 



