104 



FOREST AND STREAM. 



I Sept. 6, 1888. 



§mt(e §itff m\tl §ntj. 



GAME RESORTS.— II 

 libation such notesofSes 

 to the renders of Kohkst 

 apoAdents favor us with s 



for pub- 

 lic of help 



uf corn* 



To insure prompt attention, communication* should he ad- 

 dressed to the Forest and Stream I'ulilishing Co., and not to 

 individuals, in whose absence from the office matters of im- 

 portance are liable to delay. 



OPEN SEASONS. 



The digest of open seasons, printed in our issue of Aug. 16, has 

 been published in convenient pamphlet farm, and will be ready for 

 delivery next Saturday. Sent to any address, postpaid, on receipt of 

 10 cents. 



THE PROPERTY IN GAME. 



Editor Ebrcut and Stream: 



When I saw in the number of the Forest and Stream 

 under date of Aug. 9. in an editorial headed "Property In 

 Game," your statement that after careful and elaborate in- 

 vestigatibn you had adopted a contrary view from that 

 expressed in' the recent decision of the Supreme Court of 

 Illinois in the Magner case, and promised to give ill your 

 next issue "what really is the common law of England, and 

 therefore of tlm country" on this subject. I felt a lively 

 interest in reading the promised article. I have now read it 

 with your digest of the English cases in the last number of 

 your paper, and I trust you will pardon me for presuming to 

 differ with you in the conclusion at which you arrive. 

 Having been a constant reader of your interesting aud highly 

 useful paper since its first published number, 1 beg to assure 

 you I have had only admiration for your persistent pursuit 

 of the true solution of all questions raised or discussed in 

 your paper, and so I have no doubt but you will be glad to 

 Set the views of others as to the law relating to "property in 

 game" in this country. 



And first, what, really is the common law of England re- 

 specting this subject, is not necessarily the common law of 

 this country. All our courts concur in holding that the 

 commun law of England is the common law of this country 

 only so far as it is adapted to our institutions. If it were 

 true that the common law of England held all game.//.™ 

 natural, to belong to the King, that feature of their common 

 law would not be applicable to our institutions, and so 

 would not be the common law of this countn . So with the 

 early game laws, forestry laws, etc, which are unchanged 

 by later enactment, may be the common law of England to- 

 day, but never have been adopted into our common law. 

 The laws and customs regulating the killing and ownership 

 of game in England have always been made — and construed 

 by their courts^-purely in the interests of the lords of the 

 soil, and in no ease is this more manifest than in the case 

 cited by you of Blades vs. Higgs, decided by the House of 

 Lords. That ease seems to go upon the idea that there is a 

 qualified or special property in wiltl game in the owner of 

 the soil on which it may be for the time being, and this is 

 just where the error conies in. 



Evan the Lord Chancellor, in the course of his opinion in 

 that ease, remarks that "when it is said by writers on the 

 common law of England, that there is a qualified or special 

 right of property in game — that is in animals fenr untune — 

 which are fit for Hie food of man, while they continue in 

 their wild state, I apprehend that 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 to possession." 



Now I insist that the owner of the soil has no property in 

 the wild game that may happen to be upon it, either quali- 

 fied or special. The term property in a thing, em in ter- 

 mini, must mean that the party who claims it, has 

 the absolute possession of or dominion over it, 

 nnlesR he has parted with such possession for a lim- 

 ited time, or for a .special purpose, and when tin/ owner 

 of a chattel thus parts with the possession to another, for a 

 particular purpose, then that other has a qualified or special 

 property in the thing. So in all cases of bailment, the bailee 

 has this" qualified property in the thing bailed, and he may 

 maintain an action for such property as against all persons 

 except the owner. And the reason why such bailee may 

 maintain an action for such property against a wrong-doer, 

 is because he has a present right of possession of. and control 

 over it, for the time being; in other words, he has a qualified 

 property in it. After looking at the reasons given by tie- 

 noble Lords for their decision in the case of Blades vs. 

 Higgs, they appear so absurd in view of the law quoted by 

 them, as to make one marvel at the final disposition of the 

 case. 



For instance, Lord Chelmsford says, precedent must 

 govern, and cites cases, and considers it not light to disturb 

 precedents unless plainly erroneous, and continues, "if the 

 appellant is right in say'iug that the owner of the soil has no 

 property in game unless if is killed by him, or by his author- 

 ity, U will necessarily follow that a poacher reducing the 

 game to possession ami thereby as possessor, though a wrong- 

 doer, have the right to it against all the world, etc., and so 

 might maintain an action against the owner of the land for 

 taking it from him, etc." (which would be a most terrible 

 calamity to us Lords), "it is much more reasonable (and 

 belter for us) to hold that game killed or reduced to pos- 

 session is (then) the subject of property, aud must belong to 

 Somebody, that there can be no other owner for it under the 

 circumstances but the person on whose land it is taken or 

 killed." What logic and how convenient for them. 



EftrW let us look at the law as laid down in the first part of 

 the opinion of this same Lord Chelmsford, which I regard 

 as good law. but utterly inconsistent with his final decision, 

 fie says: "With respect to animals in a Wild and un- 

 claimed state there seems to be no difference between the 

 Roman and the common law. A distinction was suggested 

 in argument bet-ween wild animals which are unprofitable 

 and those which are fit tor food, and therefore profitable, 

 and it was said of the latter fin the argument) that by the 

 law of England there is always a property in game, whether 

 alive or dead, in somebody. But this is not reconcilable 

 with the authorities; when a person is merely the owner of 

 the land without any other privilege attached to it than that 

 which the ownership confers, he can have no property in the 

 wild animals upon the land so long as they are in a Btal ■ 

 nature and unreclaimed. Indeed, this notion of the existence 

 of property in wild animals is inconsistent with the whole 

 current of the authorities from the Year Books downward, 

 which almost invariably show that no action lies merely for 



taking hares, conies, pheasants and partridges, that when 

 the taking of animals of this description is staled in addition 

 to the trespass upon land, the plaintiffs shall not say bporet, 

 eta,, won. Jn other worths, these are my hares, etc., and you 

 must pay me for them as well as for the trespass. 



The final decision of this last case by the House of Lords 

 was. in my opinion, without law or reason; in any event it 

 never would be held to be good law by any court in this 

 country. Indeed, so faT as decisions have been made, they 

 are totally in conflict with it. 



In the case of Pierson vs. Post. 3 Cairns 1 i... the court 

 holds that property can be acquired in animals ferte uatorie 

 by occupancy only. 



So the later case of Buster vs. Newkirk. 20 Johnson 74; 

 the court confirms the doctrine of the 3d Cairns, and says 

 that property in such game can be acquired by occupancy, 

 "or by so wounding it as to bring it within the power and 

 control of the pursuer. " 



Chief Justice Swift, in his learned digest of the American 

 law, Vol. I,, pages 174 and 175, in writing on the subject of 

 wild game, Says: "A person may have a qualified property 

 in animals/era Mitnni of a wild nature and tamable disposi- 

 tion, but he cannot have an absolute property in them. While 

 animals of a wild nature possess the disposition of returning 

 to their owners, though permitted to go at large, the;, are 

 considered as their property, but when they lose their dispo- 

 sition of returning, and regain their natural liberty, the 

 owner becomes divested of his qualified property in them. 

 This qualified property comprehends deer in parks, hares or 

 rabbits in warrens, and doves in dove-houses. 



Animals of a wild nature and untamable disposition can 

 be considered as the property of any pel son on!}- while they 

 are confined by him, aud are in his actual possession and 

 power; when they are at large the property ceases, and they 

 may be taken by any person. 



Every species of wild animal is subject to this qualified 

 property on being confined or reclaimed, but when they 

 escape or become wild again, any person may acquire in 

 them the same kind of property. 



For my part I am not particular whether yon call animals 

 feriT untune the property of the people, the Slate, or uullius 

 bonis, hut the maxim capiat quien{P#n will prevail in this 

 country. W. 



Watebbcbt, Conn., Ai g. 25. 



[Our correspondent seems to have confused the special or 

 qualified property which exists in living game unreclaimed, 

 first, with the qualified property which one may have in liv- 

 ing game reduced to possession, which property exists only 

 while the animal is restrained of its liberty; and, secondly, 

 with the absolute property which may lie "obtained in game 

 by reducing it to possession absolutely by taking and killing 

 it". To show that the decisions of this country are in con- 

 flict with the House of Lords decision in Blades vs. Higgs, he 

 cites only two cases, and those donot involve the point i n ques- 

 tion. In Pierson vs. Post, and Buster vs. Newkirk, the latter 

 of which rests upon the former, controversies arose between 

 competing sportsmen upon land belonging to neither. The 

 landowner did not appear in either ease. It was as if the 

 owner of the laud had given the huntsmen permission to 

 hunt there. The plaintiffs in both eases were in pursuit of 

 u-amc when the defendants interfered by killing and carrying 

 it away. The only question was whether the plaintiffs hud 

 reduced the game to posse.-siou ; that is, whether they had 

 gone far enough toward restraining the game of its natural 

 liberty and obtaining control over it by their pursuit or 

 wounding of it, to have a property in the game at the time 

 defendants took it. Judge Tompkins, who delivered the 

 opinion of the court in the former case, was careful to call 

 ittention to the fact that no question of the property in game 

 ■afi'om soli could arise in the case. He said: "Most of the 

 :ases which have occurred in England relating to property 

 in wild animals, have either been discussed and decided upon 

 the principles of their positive statute regulations, or have 

 arisen between the huntsman and the owner of the land upon 

 which beasts, fere,' naturce have been apprehended, the former 

 claiming them by title of occupancy, and the latter ration 

 toti. Little satisfactory aid can, therefore, be derived from 

 the English reporters."' In view of the fact that numerous 

 American authorities have adopted and applied the common 

 English law doctrine of property in g't" ll: ft.fwm »/t isw 

 the article in Forest AND Stheam of Aug 16, 1883, under 

 discussion), more cogent reasons than our correspondent has 

 advanced must be found to show that the doctrine is not 

 adapted to our institutions. The statement that the opinion 

 of the highest court in England is "so absurd as to make one 

 marvel, and without law or reason." should lie based upon 

 unquestioned precedents and authorities.] 



RAIL TIDES ON THE DELAWARE. 



HEREWITH I forward you a tide table lor port of Phila- 

 delphia, which gives the hours of high waters of each 

 day in September and October, which will be found of great 

 benefit to .sportsmen who contemplate giving their time to 

 rail shooting during the present season. The tides in the 

 table 1 send are calculated at Walnut street wharf, conse- 

 quently if it is desired to learn the hour of high water mark 

 for shooting grounds above or below Philadelphia, the list of 

 places following table will have to he consulted. 

 October. 



September. 



A. M. 



VM. 





1:15 



1:31 



1 



1:50 



8:10 



2. 



2:30 



3:4s. 



3. 



3:(8 



3:313 



4 



3:45 



4 an 



5, 



4:28 



4:45 



6, 



5;08 



5:37 



7, 



5:41) 



H:10 



8. 



0:34 



0:68 



9 



7:24 



7:53 



10, 



B:2« 



7:5H 



11. 



.... 9:31 



10:08 



12 



10:31 



Hips 



13 



11:34 





14 



0*1 



0:37 



15 



0:51 



1:15 



111. 



1:37 



2:01 



17 



... 2:2fi 



2:51 



18 



3:17 



3:42 



111. 



4:07 



4:33 



20. 



.... iiSB 



5:36 



21 



5:5a 



6:20 



22 



0:47 



7:10 



28 



7:47 



R:19 



2-1 



8:51 



3:23 



25 



9:52 



10:20 



US 



10:47 



11:13. 



27. 



.. . ,11,38 





2- 



0:01 



... .... 0:43 



0:23 

 1:01 



211, 

 30. 



A. M. 

 . 1:30 

 . 1:57 

 . 2:35 

 . 3:15 



. 1: 16 

 . 5:39 

 .. 6:29 

 . 7:21 

 .. 8:18 

 . 9:17 

 -.10:09 

 ,.11:00 

 . .11*46 

 . 0:00 

 . 0:49 

 . 1:27 



2:15 

 2:54 



3:35 



4:15 

 4:59 

 5:11 

 6:31 

 7:22 

 8:24 

 II: 28 

 10:29 

 11:30 



5:13 

 BjM 



1755 

 7:4!) 

 8:48 

 9:43 



111® 



11:21 



ie.2[i 

 1:08 



t:lli 



For marshes up the Delaware Kiver, taking Kiverton as a 

 mediumn, add, say 45 minutes; for Gloucester, N. J 



grounds subtract 80 l 

 for, Pa,, grounds si 

 Hook, Pa., subtract, 

 grounds subtract, sa 

 itlb, Dei. 



tiles; for Lazaretto, Pa., and Ches- 

 raet, say, 55 minutes: for Marcus 

 . (15 minutes; for Wilmington, Dei. 

 i hour and 50 minutes; for Not 

 subtract 2 hours f, minutes; for Port 



Perm, Del., subtract, say. 2 hours 17 minutes. 



Afternoon tides are always the best, the later the better, 

 and when Ihe wind has 'been eastward for twenty-lour 

 hoiu'S it has the effect of driving mure water over the 

 marshes than when Ihe wind is wesleilv. The winds being 

 westward to-day, the tide for the opening of the rail- 

 shooting season was poor. Homo. 



THE RAIL AND THE HIGH TIDES. 



THE tides brought in by the easterly winds of the 201 h, 

 27th, 38th and 29th have been the largest known in many 

 years, and the temptation to take a pop ill the rail bird's 

 under such favorahlc circumstances— so mar the Opening of 

 the season, you know— could not be resisted by many in our 

 city, and on the Pennsylvania ride of the Delaware River 

 a number of boats boldly pushed through the reeds regardless 

 of law, and without molestation, ami quantities of birds 

 were killed. Rail and reed birds are still coming and both 

 are plentiful. The tides at Atlantic City, Beach Haven ami 

 Barnegat caused no little damage to property. All the higher 

 sedge "meadows were covered, and the muil-hciis suffered in 

 consequence. Skiffs of all sizes could he readily flushed 

 everywhere, and hundreds of clapper rail were slaughtered 

 as they huddled togethei on floating trash. How much the 

 mud-hen resembles the large fresh-water red rail (iitilhi* rb - 

 gans). Many of the salt-water variety ( Ra.llus crepitans) or 

 mud Inns, after their late slaughter at. the seaside, will appear 

 in our markets, and be offered" for sale as the more toothsi niie 

 JfaUutdeaant, and be bought by the uninitiated. It is aston- 

 ishing lo note how lew, who shoot, know of the difference in 

 these two birds. 



We have here on our Delaware River four, so to speak, 

 common varieties of rail. First, the large red or king rail. 

 Ralltin elegant. He is not very plentiful, but in SOUK si asoilS 

 and in some localities numbers are shot. Second, the red 

 rail, known as Hall us wrgimnnv*, not near so numerous ever 

 as the third variety called the sora or liollus euenii/ni. which 

 affords the chief amusement to our sportsmen at this season. 

 We have one more rail which is at: times shot on our marshes. 

 He is classed property among the gallinules, is really a coot, 

 but our local gunners always call him the big blue or hen 

 bill rail. Now 1 lie- mud-hen or clapper rail. Ballus crepitant, 

 which 1 slated so much resembles the large red or king rail, 

 is almost invariably a salt. water bird, and when not, placed 

 side by side with his more slender cousin, can scarcely lie 

 distinguished from him by inane. Ballut ekgaili is never 

 shot in the salt sedge meadows frequented by the less tooth 

 some and more noisy mud-htn. nor is the latter ever killed 

 upon flesh-water rivers among the reeds, save at rare inter- 

 vals, (luce in a while stray Florida and purple gallinules 

 were shot in our marshes to be named as semi residents. 



At Lazaretto, Pa., the following bags were mnde on' the 

 opening of the season, Saturday. Sept. 1: James Mali... 51 ; 

 J. W.Grant, 41: B. W. Morton, III: G. G-riffiu. 38; G. 

 Urian,38; J. Elwood, 37; U. James, 311; W. E. Hey], 32; 

 L. Good, 22; Westeman, 22: 0. Gardoza, 7; H. llewes, 4; 

 .transfer. 2. The tide was a poor one. There ate plenty of 

 ii'rds'on. These -cores were good, considering Ihe low stale 

 of the water. HOMO, 



I'lm.AI.KI.PHIA. Aur.31. 



[Ill article on first page of last issue, in the sentence read- 

 ing "The favorite spots for rail shooting are at Lazaretto and 

 Chester, in Delaware." etc.. "in Delaware" was a misprint 

 for "in the Delaware," the reference being of course I o the 

 river.] 



STAR WADS. 



Editor Forettand Stream; 



I have given these wads a number of trials to lest their 

 sticking qualities, and have found them to stand easily eight 

 to ten discharges, but only when they were properly seated 

 If your correspondent, '•( 'hip," will use a rammer nearly as 

 th'iit as lie can get in the shell. 1 think he will find no fur- 

 ther trouble. My tests were made with a twelve-gauge gun 

 of ordinary weight, shooting from three and a half to four 

 drams of Eagle Duck No. 2 or Hazard Duck No. B, and one 

 and a quarter ounces of shot of different sizes. With this 

 load I leave sometimes started the wad in a torued-over shell 

 with fewer discharges than the star wads stood. As to the 

 relative merits of the shooting with star wads. I am unable 

 to give satisfactory information, as I have not given them 

 sufficient tests myself, though many of my trap-shooting 

 friends are delighted with them. They will hold better 

 when put into the shell with the concave side up. 



NVWAKK, N. J. SlOF l.KVKIl. 



Editor Vbrest and Stream; 



"Chip's" experience with star wads is entirely different 

 from my own. "Chip" says; "Shootiug three successive 

 shots from the right, and allowing the left to remain in the 

 barrel, 1 found the wad had started so much I could shake 

 it out; shooting one shot in the same manner. I found th • 

 wad in the left had started slightly." 



I have lust returned from a shooting trip on the Sineptux- 

 ent Bay, at Ocean City. I took with me 400 shells loaded 

 as follows: Shells. U. M. C. second quality; powder, three 

 dram- English duck No. 2; wads, two Winchester P. K. : 

 shot, one ounce No. 8; wads, Baldwin and star brass. 1 

 shot 300 "f the -hells, never had a missfire, never a wad to 

 start in the slightest degree, and must in some instances 

 (when the willcf were living singly), have tired a dozen shots 

 from the right without having occasion lo use the let! Iiar- 

 rel I loaned a box of -hells lo .Messrs. Kstey and Janon 

 Fisher, sous of Judge Fisher, of this city, and they both 

 speak highly of the brass star wails. Louden as my shells 



were, about' two-thirds full, crimping would have bo i 



the question, without first cutting the shells, and that im- 

 pairs the shooting of any gun. however chambered, in my 

 opinion. ! believe all sportsmen who load then own shells, 

 with me. thai crimping is the most difficult as 

 well as tiresome thing in loading shells, I consider the star 

 wad without exception, the greatest convenience that has 

 been invented since the perfection of the modetf 

 loader, and I believe it is only a quest ion of u Very short 

 time when they will come into universal use, and I In- erimpet 

 will be consigned to the lumber room along with muzzle 

 i .ml other superceded implements. The question has 

 been raised, do the star wads injure the gun barrels.' I can 

 only say, I shoot a hammerless gun with tine Damascus liar 

 rcls". and 1 cannot discover the slightest injury to them. The 



