CHAPTER II.

ACQUISITION OF RIGHTS NOT UNDER FORMER OWNER.

NOTE. In this chapter are considered the cases in which the chattel in question either had no former owner, or in which, if it had a former owner, the present claimant does not derive his title from him.

i

SECTION I.

CHATTELS HAVING NO FORMER OWNER.

(Inst. II. 1, 12 & 13.)

12. WILD beasts, therefore, and birds and fishes, that is to say, all animals that live on the earth, in the sea or in the air, as soon as they are caught by any one, become his at once by virtue of the law of nations. For whatever has previously belonged to no one, is granted by natural reason to the first taker. Nor does it matter whether a man catches the wild beasts or birds on his own ground, or on another's; although a person purposing to enter on another's land for the purpose of hunting or fowling may of course be prohibited from entering by the owner, if he perceive him. Whatever, then, you have caught of this kind, is regarded as yours so long as it is kept in your custody; but when it has escaped from your custody and reverted to its natural freedom, it ceases to be yours, and again belongs to the first taker. And it is considered to have recovered its natural freedom when it has either escaped out of your sight, or is still in sight, but so situated that its pursuit is difficult.

13. It has been debated whether a wild beast is to be considered yours at once, if wounded in such manner as to be capable of capture; and some have held that it is yours at once, and is to be regarded as yours so long as you are pursuing it, but that if you desist from pursuit, it ceases to be yours, and again belongs to the first taker. Others have thought that it is not yours until you have actually caught it. And we adopt the latter opinion, because many things may happen to prevent your catching it.

THE CASE OF SWANS.

7 Co. 15 b, 17 a (1592). — And in the same case it is said that the truth of the matter was that the Lord Strange had certain swans which were cocks, and Sir John Charleton certain swans which were hens, and they had cignets between them; and for these cignets the owners did join in one action, for in such case by the general custom of the realm, which is the common law in such case, the cignets do belong to both the owners in common equally, sc. to the owner of the cock and the owner of the hen; and the cignets shall be divided betwixt them. And the law thereof is founded on a reason in nature; for the cock swan is an emblem or representation of an affectionate and true husband to his wife above all other fowls; for the cock swan holdeth himself to one female only, and for this cause nature hath conferred on him a gift beyond all others; that is, to die so joyfully, that he sings sweetly when he dies; upon which the poet saith,

Dulcia defecta modulatur carmina lingua,

Cantator, cygnus, funeris ipse sui, etc.

And therefore this case of the swan doth differ from the case of kine, or other brute beasts. Vide 7 Hen. IV. 9.

TRESPASS.

The first count charged that defendant, with force, &c., seized and disturbed a fishing sean and net of plaintiff, thrown into the sea for fish, wherein plaintiff had taken and inclosed, and then held inclosed in his own possession, a large number of fish, to wit, &c., and that defendant threw another fishing sean and net within and upon plaintiff's sean and net, and for a long time, to wit, &c., prevented plaintiff from taking the fish, so taken and inclosed, out of his sean and net, as he could otherwise have done; and drove, &c., the fish ; whereby part of them died, part were injured, and part escaped; and the sean and net was injured. Second count, that defendant with force, &c., seized, took, and converted fish of plaintiff.

Pleas 1. Not guilty. Issue thereon.

2. To the first count, as to preventing plaintiff from taking the fish alleged to be inclosed in his possession, and driving, &c., the said fish: that the fish were not plaintiff's fish, and he was not possessed of them, in manner, &c. Conclusion to the country. Issue thereon.

3. To the second count, that the fish were not the plaintiff's fish, in manner, &c. conclusion to the country. Issue thereon.

4 and 5. As to other parts of the declaration, raising defences under statutes 16 Geo. III. c. 36, and 4 & 5 Vict. c. lvii. (local and personal, public), relating to the St. Ives (Cornwall) pilchard fishery. Issues of fact were tendered and joined on those pleas.

On the trial, before Atcherley, Serjt., at the Cornwall Spring Assizes, 1843, it appeared that the plaintiff had drawn his net partially round the fish in question, leaving a space of about seven fathoms open, which he was about to close with a stop net; that two boats, belonging to the plaintiff, were stationed at the opening, and splashing the water about, for the purpose of terrifying the fish from passing through the opening; and that at this time the defendant rowed his boat up to the opening, and the disturbance, and taking of the fish, complained of, took place. The learned Serjeant left to the jury the question of fact whether the fish were at that time in the plaintiff's possession, and also other questions of fact on the other issues. Verdict for plaintiff on all the issues, with damages separately assessed; namely, £568 for the value of the fish, and £1 for the damage done to the net. Leave was given to move as after mentioned. In Easter term, 1843, Crowder obtained a rule nisi for entering a verdict for defendant on all the issues, or on the 2nd, 3rd, 4th, and 5th, or for reducing the damages to 20s. and entering a verdict for defendant on the 2nd and 3rd issues; or for a new trial; or for arresting the judgment. In Hilary vacation (Feb. 10th), 1844, Cockburn and Montague Smith showed cause.

Crowder, contra.

LORD DENMAN, C. J. It does appear almost certain that the plaintiff would have had possession of the fish but for the act of the defendant; but it is quite certain that he had not possession. Whatever interpretation may be put upon such terms as "custody" and "possession," the question will be whether any custody or possession has been obtained here. I think it is impossible to say that it had, until the party had actual power over the fish. It may be that the defendant acted unjustifiably in preventing the plaintiff from obtaining such power; but that would only show a wrongful act, for which he might be liable in a proper form of action.

PATTESON, J. I do not see how we could support the affirmative of these issues upon the present evidence, unless we were prepared to hold that all but reducing into possession is the same as reducing into possession. Whether the plaintiff has any cause of action at all is not clear; possibly there may be a remedy under the statutes.

WIGHTMAN, J. I am of the same opinion. If the property in the fish was vested in the plaintiff by his partially inclosing them, but leaving an opening in the nets, he would be entitled to maintain trover for fish which escaped through that very opening.

(COLERIDGE, J., was absent.)

Rule absolute for reducing the damages to 20s., and entering the verdict for defendant on the second and third issues.

BUSTER v. NEWKIRK.

SUPREME COURT OF NEW YORK. 1822.

[Reported 20 Johns. 75.]

IN ERROR, on certiorari to a justice's court.

Newkirk brought an action of trover against Buster for a deer skin. It appeared that N. was hunting deer on the 31st of December, 1819, and had wounded one, about six miles from B.'s house, which he pursued with his dogs. He followed the track of the deer, occasionally discovering blood, until night; and on the next morning resumed the pursuit, until he came to B.'s house, where the deer had been killed the evening before. The deer had been fired at by another person, just before he was killed by B., and fell, but rose again, and ran on, the dogs being in pursuit, and the plaintiff's dog laid hold of the deer about the same time, when B. cut the deer's throat. N. demanded the venison and skin of B., who gave him the venison, but refused to let him have the skin. The jury found a verdict for the plaintiff for seventy-five cents, on which the justice gave judgment.

PER CURIAM: The principles decided in the case of Pierson v. Post (3 Caines' Rep. 175) are applicable here. The authorities cited in that case establish the position that property can be acquired in animals feræ naturæ by occupancy only, and that in order to constitute such an occupancy it is sufficient if the animal is deprived of his natural liberty, by wounding or otherwise, so that he is brought within the power and control of the pursuer. In the present case the deer, though wounded, ran six miles; and the defendant in error had abandoned the pursuit that day, and the deer was not deprived of his natural liberty, so as to be in the power or under the control of N. He therefore cannot be said to have had a property in the animal so as to maintain the action. The judgment must be reversed.

Judgment reversed.

SWIFT v. GIFFORD.

UNITED STATES DISTRICT COURT FOR MASSACHUSETTS. 1872.

[Reported 2 Lowell, 110.]

LIBEL by the owners of the ship Hercules against the agent and managing owner of the Rainbow, both whale-ships of New Bedford, for the value of a whale killed in the Ochotsk Sea by the boats of the Hercules, and claimed by the master of the Rainbow, and taken and

appropriated by him, because one of his harpoons, with a line attached to it, was found fastened in the animal when he was killed. The evidence tended to show that the boats of the respondents raised and made fast to the whale, but he escaped, dragging the iron and line, and so far outran his pursuers that the boats' crews of the Hercules did not know that any one had attacked or was pursuing the whale when they, being to windward, met and captured him; that the master of the Rainbow was, in fact, pursuing, and came up before the whale had rolled over, and said that one of his irons would be found in it, which proved to be true; and he thereupon took the prize. The parties filed a written stipulation that witnesses of competent experience would testify that, during the whole time of memory of the oldest masters of whaling-ships, the usage had been uniform in the whale-fishery of Nantucket and New Bedford that a whale belonged to the vessel whose iron first remained in it, provided claim was made before cutting in. There were witnesses on the stand who confirmed the existence of the usage, and who extended it to all whalemen in these seas; and there was nothing offered to oppose this testimony. The only disputed question of fact or opinion was concerning the reasonable probability that the whale would have been captured by the Rainbow if the boats of the Hercules had not come up. The value of the whale was said to be about $3,000.

J. C. Dodge and C. T. Bonney, for the libellants.

G. Marston and W. W. Crapo, for the respondent.

LOWELL, J.: The rule of the common law, borrowed probably from the Roman law, is that the property in a wild animal is not acquired by wounding him, but that nothing short of actual and complete possession will avail. This is recognized in all the cases concerning whales cited at the Bar, as well as in the authorities given under the first point. Whether the modern civil law has introduced the modification that a fresh pursuit with reasonable prospect of success shall. give title to the pursuer, does not seem to be wholly free from doubt, though the ancient commentators rejected such a distinction, for the satisfactory reason that it would only introduce uncertainty and confusion into a rule that ought to be clear and unmistakable. See Pandects, by Pothier, vol. xvi. p. 550; lib. 41, tit. 1; Gaius, by Tompkins & Lemon, p. 270. I do not follow up this inquiry, because it would be impossible for me to say that the crew represented by the respondent, though continuing the chase, had more than a possibility of

success.

The decision, therefore, must turn on the validity of the usage, without regard to the chances of success which the respondent's crew had when the others came up. It is not disputed that the whalemen of this State, who have for many years past formed, I suppose, a very large proportion of all those who follow this dangerous trade in the Arctic seas, and perhaps all other Americans, have for a very long time recognized a custom by which the iron holds the whale, as they express it.