A.OtttreT 10, 1883.] 



FOREST AND STREAM. 



43 



purpose, He would be a trespasser, anil as such liable for the game 

 taken, jin exception may exist in the case of noxious animals de- 

 structive in their nature. Mr. Justice Blaelcstone cays, it a man 

 starts game in another's private ground, and kills it there, the prop- 

 erty belongs to him in whose ground it is killed, because it w:a.s started 

 there, the property arising rations salt. " (Gaff v. Kilts. 15 Wend . 550; i 



Ati earlier decision iti the same State was to the. effect 

 thai wild bees in a bee tree belong to the owner of the soil 

 where the tree stands, and that "the owner of the soil alone 

 had a right to tbe tree, with all that was in it." (Ferguson 

 v. Miller, 1 Cow. 243 ) 



Still further back the court held that! 



"In the present case it appears that the bees were not hived before 

 they were discovered by the defendant in error, and the only act be 

 did mis to mark the tree. The laud was not his nor was it in his 

 possession. Marking the tree did not reclaim the bees, nor vest an 

 exclusive right of property in tbe finder, especially in this ease, 

 against the plaintiff in error, who as one of the children of Timothy 

 Gillet (who does not appear to have made a Willi must be considered 

 as one of the heirs, and, as such, a tenant in common in the land. 

 Blackstone (vol. 2, p. 893) inclines to the opinion that under the Char- 

 ter of the Forest, allowing every free man to be entitled to the honey 

 found within his woods, a qualified property may be had in bees, in 

 consideration of the soil whereon they are found, or ownership 

 ratfone soli. (Gillet v. Mason, 7 Johns. IB.) 



Judge Toomer, of North Carolina, states that: 

 li Bees Bteferi* nliitirte, but wheu hived and reclaimed by theart and 

 industry of man, he has a qualified property in them by the law of 

 nature. But it has been said that in England the only ownership of 

 bees is mtione soli, and the charter of the forest, which allows every 

 man to he entitled to the honey found within his own woods, sanctions 

 the doctrine that a qualified property may be also had in bees in con- 

 sideration of the property of the soil whereon they are found. The 

 same rights of ownership in bees and honey, by reason of the owner- 

 ship of the soil whereon they are found, are supposed to obtain in 

 this country." (Idol v. Jones. 2 Dev. 102.) 



These authorities would seem to leave no room for doubt 

 that, while it is true as a general proposition that under the 

 common law unreclaimed living game is nuttius bnni.s, the 

 property of no one, the proposition must be taken with the 

 qualification that a land-owner has property ration* toll in 

 the game which may come upon his land, so long as it re- 

 mains there, which property is at least the exclusive right of 

 pursuing, taking and killing such game; that if a trespasser 

 take or kill the game it becomes at once the absolute prop- 

 erty of the owner of the land, who may take any legal steps 

 necessary to obtain its possession; that while larceny, being 

 an offense against personal property, cannot be committed 

 of game, living and unreclaimed, which partakes of the 

 nature of realty and goes with the land, like fruit growing 

 upon trees, still tbe property which exists in game will be 

 protected equally with any other property. 



TUE MAONER DECISION. 



A recent decision in Illinois, however, states that the 

 property in all game is vested in the State. The courl says: 



"W'hile they [animals and fowls denominated game] are untamed 

 and at large, the ownership is said to be in the sovereign authority— 

 in Great Britain, the king, (2d Blackstone's Corn's, Sharswood's ed., 

 409-10) but with us in the people of the United States. 



"Tbe ownership being in the people of the State— the repository of 

 the sovereign authority— and no individual having any property 

 rights to be affected, it necessarily results that the Legislature, as the 

 representative of the people of the State, may withhold or grant to 

 individuals the right to hunt and kill game, or qualify and restrict it, 

 as in the opinion of its members will best subserve to the public 

 welfare. Stated in other language, to hunt and kill game is a boon 

 or privilege granted, either expressly or impliedly by the sovereign 

 authority— not a right inhering in each individual, and consequently 

 nothing is taken away from the individual when he is denied the 

 privilege, at stated seasons, of hunting and killing game. It is per- 

 haps accurate to say that the ownership of the sovereign authority is 

 in trust for all the people of the State, and hence, by implication, it is 

 the duty of the Legislature to enact such laws as will best preserve 

 the subject of the trust, and securo its beneficial use in the future to 

 the people, of the State. But in any view, the question of individual 

 enjoyment is one of public policy and not of private right." i Magner 

 v. The People, S3 Alb. L. J. 287). 



It will be observed that tills opinion is based entirely on 

 English authority, citing only Blackstone in its support. 

 No argument is offered and no reference is made to tbe 

 elaborate controversion of Blackstone's doctrine by Christ- 

 ian and his supporters, nor to the great number of English 

 and American authorities heretofore set forth, nor In the 

 property ration," m>U, which landowners unquestionably 

 have under the common law in the game found on their 

 land. This could never have happened had the question of 

 •who owns the game been actually before the court, requir- 

 ing an answer in order to determine the action. The court 

 merely touched upon the point while discussing other ques- 

 tions, and did not profess to decide it, as appears from the 

 closing words of its opinion : "The questions we have been 

 considering were all raised 'in Phelps vs. Racey,' 60 N. Y., 

 10," which case did not in auy way refer to the ques- 

 tion of the ownership of, or property in, game. Tbe 

 question in both the Blinois case and the New York 

 decision of Phelps vs. Racey was whether a State statute 

 condemning and forbidding the sale in the State of game 

 taken out of the State, is contrary to the provision of the 

 United States Constitution, which confers upon Congress 

 the power to regulate interstate commerce. That it is within 

 the police powers of the State to protect and preserve game 

 for the public good, by such regulations as the Legislature 

 shall determine, is set forth in both eases, and is not open to 

 dispute. The power has been generally recognized and 

 exercised by all civilized nations, but it is in no wise incon- 

 sistent with the view that property in game is, not in the 

 State. 



Tbe Illinois court may very naturally, in thus touching 

 upon a point outside of the case before them, have adopted 

 the view of Blackstone, who had laid down the laws pertain- 



ing to animals in so many other respects, in a way which 

 allowed no dispute, when a careful iuvesligal ion would have 

 led them to a different conclusion. 



A consideration of the police power of the State with re- 

 spect to the protection of game will form the subject of 

 another paper. 



THE TEAM AT HOME. 

 QEVEN members of the recent American team returned 

 ^ home by Ihe Abyssinia, reaching this port on Aug. 8. 

 The captain and other members of the team are now afloat, 

 having started from Liverpool by the Alaska on Aug. 11. 

 With the icturn of the shooting men we are enabled to get 

 some definite ideas of just what took place on that Friday 

 and Saturday in July last, when the team suffered its defeat 

 from the Britishers. 



Of the trip, as a whole, tbe men bring back the most 

 agreeable recollections. Their reception by the riflemen 

 abroad was a very hearty one, and throughout the stay Col. 

 Howard and his men were made to feel that they were in 

 company of friends, and everything was done to make them 

 socially comfortable. They cannot lecall a single ease of 

 omission to show this kind regard when it was possible to 

 do so. Before and after the match, this same desire to show 

 encouragement and respect to their transatlantic friends was 

 manifested by the officers and men of the various organiza- 

 tions connected with the Wimbledon gathering. The N. R. 

 A. of Great Britain, through its officials, extended its cour- 

 tesies to the N. R. A. of America in the persons of the rep- 

 resentative team. 



Speaking of the match itself, the men again agree that the 

 weather conditions are responsible in great measure for the 

 falling away in the scores. Prom the descriptions given of 

 the meteorology of Wimbledon on the second day of the 

 match, there must have been a grand olln poSHcta of sleet 

 and wind, sun and rain, which at one moment made the 

 riflemen wish for heavier garments, then wonder whether 

 they are not in danger of sunstroke. Shooting toward 'the 

 south the men had a strong glaring sun at times pouiing its 

 rays directly into their eyes. Then the wind came from the 

 targets, a regular twisting fish-tail, driving the falling wet 

 directly into the eyes of the riflemen as they lay down to 

 shoot. The hot sun pouring down its rays upon the wet 

 range surface then brought up a dancing cloud of watery 

 vapor, and through this the men fired. Occasionally they 

 succeeded in getting a shot on the target, but it was, in a 

 great measure, very risky guess-work on the part of the 

 Americans, and their only wonder now is, that they should 

 have succeeded as well as they did. 



Whether the Americans could have secured a victory 

 under different weather conditions is, of course, a matter of 

 doubt; but it is very certain that the scores at the longer 

 ranges would have been much higher. The Englishmen 

 were more ready in catching their bearings during the 

 storms of the last day, and so succeeded in crawling out of 

 the confusion in better shape. It was a severe test even to 

 them, but having been accustomed to nasty bits of weather 

 somewhat after the same fashion, they could show scores 

 which, while not very satisfactory to them as compared 

 with previous records, were, at least, good enough to give 

 them the lead at the finish. 



The returning team men also tell us that the practice which 

 was enjoyed by the Americans at Wimbledon before the match 

 was of very little use, owing to the fact that it, was a scat- 

 tered sort of fire. There were no targets set apart for the 

 men at which they could practice as a team, but instead, 

 complimentary tickets in the various matches were given 

 the Americans, giving them privileges as individuals to shoot 

 in the various competitions under way. Thissort of drill, it 

 will be seen, was of very little use. To make an efficient 

 team by this process, would require months of hard work. 

 If the Americans were to wiu at all, it was to be by their 

 ability to help each other, and when that sort of preparation 

 was cut off from them, their chances were reduced by a very 

 large percentage. 



The first day's work of our team should have been much 

 better. The men were not coming up to their average, and 

 while the Englishmen were taking advantage of the excel- 

 lent shooting conditions as fully as they were able, the 

 Americans ch-opped away. The 200-yards shooting has been 

 beaten many times by the men at home, and as to the 500- 

 yards work, while it was excellent in a few instances, there 

 was a general loss of points there which ought not to have 

 occurred. With proper handling and a display of their best 

 endeavors on the first day, Col. Howard's men should have 

 gone back for the long-range portion of the fight with fully 

 fifty points advantage. 



As to the rifles they held. their own well. It is impossible 

 to say how far they were affected by the use of the English 

 powder. It may be that there was no difference, but from 

 explanations now made, all the misses may be placed to bad 

 holding or to errors of judgment in matters of elevation and 

 wind allowance. When that twelve-o'clock gale with vari- 

 ations struck the team on the second day, they wen.- driven 

 into a demoralization, and the panic which was just about 

 to break out in the ranks of the home team became trans- 

 ferred, in a large measure, to the opposition. A day which 

 required nearly thrse points more elevation than the marks- 

 men had ever shot with before, may well have disconcerted 

 even better shooters than the American team, but it strikes 

 us that it was not necessary to score any great number of 



misses before that cbanse in the conditions was noted. 

 Sm-ely it was not necessary t" have one man following 

 another off the target, when had the men acted as a team, 

 under one direction, the misses of one should have been the 

 guide to place another man on the target. 



The return of Col. Howard within the next few days will 

 add his explanation to those already made of the' why and 

 wherefore of the defeat. The weather had much to do with 

 it, and it would seem tbe proper thing now for a team pre- 

 paring for a match at Wimbledon to select the wildest, most 

 gusty and generally most uncomfortable days of our year to 

 practice in. Then they will get some notion of what sort of 

 commotion among the elements they are likely to meet with 

 at the common near London. Col. Howard should give us 

 an early and extended report of his work with the team. It 

 should be in tbe nature of a guide for future team work, 

 since it is idle to suppose, that our National Guardsmen will 

 permit Great Britain to enjoy unchallenged her cham- 

 pionship at military breech-loader shooting over the 

 longer ranges. Ab-eady it will seen the enthusi- 

 astic Sir Henry Halford is talking of coming over to 

 Creedmoor next year. We hope he will come to fan the 

 enthusiasm of our riflemen up to a working point and to im- 

 press upon our militia their general inefficiency as marks- 

 men, even if it be only by giving our team another defeat. 

 There must be no such retreat after defeat as that shown by 

 the foreign riflemen in relation to our Palma contests. 

 There may have been some unwise clauses in the conditions 

 of that match, but. the main fact remains that the marksmen 

 of Great Britain gave up the small-bore championship in- 

 stead of pluckily fighting on to ultimate victory. So in the 

 military breech-loading contests now in progress: the condi- 

 tions of the two matches already shot were observed in 

 many of their demands and indefinite in others, but that is 

 no reason why our military shooting men should not have 

 them changed so that the coming matches may be real tests 

 of our latest model rifles in this class of shooting. 



THE OPEN SEASONS. 

 TX7E print elsewhere a list of the open seasons for shoot 

 " ' tag and fishing. The compilation of such a list 

 involves a great deal of painstaking labor. We have been 

 at some pains to secure the latest and most authentic infor- 

 mation respecting the laws of each State, etc. It is possible 

 that one or two errors may have crept in. If any such are 

 detected we hope that we may be set right at once. The 

 purpose of this list is twofold ; first, to afford information to 

 our readers; second, to secure an observance of the game 

 laws by making these laws known. 



\h$ fyortzn\mi ^onri§t 



THE OKOBOJ1 LAKES. 



INSTEAD of writi ng you a letter from the Big Horn Moun- 

 tains, in Wyoming Territory, I write from Iowa. Hav- 

 ing had a kind invitation from my friend and your corres- 

 pondent, "C. D ," of Fort McKiimey, to come up there and 

 take a month or six weeks' hunt with him after big game, I 

 made all my arrangements, packed my trunk with ammuni- 

 tion till in weight it would do a "baggage smasher's" heart 

 food, for the simple reason that it would surely smash the 

 rat time that he dumped it from a baggage car. But I was 

 not going to be fool^ enough to intrust it to one or many of 

 that fraternity, as 1 had made my plans to take the guns, 

 rifles, rods, pony, and myself, by steamer to Pierre, and there 

 freight baggage by Evan's Transportation Co. to the Black 

 Hills, and from there freight to Fort McKitiney, while 1 

 should ride my Texas pony through. 



I think that most of your readers would say that I should 

 earn my hunt after such a ride through the country in July 

 and August weather. I think myself that they would be 

 about right, but a man, fond of a good bunt, should not 

 mind a Sttle trip of 850 or 400 miles on horseback. 



I waited nearly two weeks in the little town of Chamber- 

 lain for the steamer Peiry to make a trip to Pierre, and just 

 as she was ready I received a letter from C. D. saying that 

 he had been ordered to Omaha on the army shoot. C. D. 

 won the "buttons" last year and again this year, and so was 

 ordered with the team. I only wish for my sake that C, D. 

 could not shoot quite so well. My hunt by that means was 

 dished and so 1 took the next best plan, repacked my trunk, 

 (this time in my favor) packed all my rifles, guns, etc., and 

 freighted them east. Took flailing tackle only, and came 

 to this place for a trial of bass, pickerel , wall-eyed pike, 

 croppies, etc. 



A right royal place it is. Okoboji Lakes and Spirit Lakes 

 are as fine us can be found in the Stales. Fishing in season 

 the best, though just at this time rather poor for this place, 

 the fish taking deep water, yet I get all the fish a good hon- 

 est fisherman requires. As an inland pleasure resort for 

 comfort, fot pleasure, for fishing and for chicken shooting 

 in season it cannot be surpassed, I think. Duck shooting is 

 also very good both fall and spring, while winter fishing 

 with spi-ar and fish-house cannot be surpassed, 



To give your readers some idea of the quantity of fish 

 there are in'these lakes, I will say that in the outlet I torn the 

 Okoboji Lakes there are two flour mills, and in the season 

 for fish to run up the river the mills have to stop from a 

 week to ten days, as the fish stop the mills so that they can- 

 not run. 



The farmers all around come with their wagons and carry 

 them away by the whole wagon-body full, using pitchfork's 

 for fishing tackle. They do'not take much stock in a or 10 

 ounce split-bamboo rod's, don't care to play their fish, nor 

 land him with a landing net. A good pitchfork or manure- 

 fork will fill up the wagon-body faster, if there is not so 

 much sport; fish is what thiy are after, not. sport. Your 

 readers may think that this is a fish story, but I will 

 vouch for the truth on my word as a man, not as a fisherman. 

 I am afraid that the last authority is not quite good in 

 most instances, as I know that a man will stretch the truth 



