No. 1. - Blades v. Higgs, 11 H. L. Cas., 639–641.

said that, "If A. starts a hare in the ground of B., and hunts it into the ground of C., and kills it there, the property is in A., the hunter, but A. is liable to an action of trespass for hunting in the grounds as well of B. as of C."

I have some difficulty in understanding why the wrong-doer is to acquire a property in the game under the circumstances here supposed. If the animal had left the land of B. and passed into the land of C. of its own will, and had been, immediately it crossed the boundary, killed by C., it would unquestionably have [640] been his property. Why then should not the act of a

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trespasser, to which C. was no party, have the same effect as to his right to the animal as if it had voluntarily quitted the neighbouring land? And why, not only should B. lose his right to the game, and C. acquire none, but the property by this accident of the place where it happened to be killed be transferred to the trespasser? It would appear to me to be more in accordance with principle to hold, that if the trespasser deprived the owner of the land where the game was started of his right to claim the property, unlawfully killing it on the land of another to which he had driven it, he converted it into a subject of property for that owner and not for himself.

But the first proposition stated by Lord HOLT with respect to game started and killed on the land of the same owner is free from all difficulty, and is sufficient to dispose of the present question. The case of Sutton v. Moody, has always been regarded as an authority upon this point, and as far as I can ascertain has never been questioned. It was recognized in Churchward v. Studdy, 14 East, 249, 12 R. R. 513, in Graham v. Ewart, 11 Ex. 326; 1 Hurl. & N. 550, 7 H. L. Cas. 331, 25 L. J. Ex. 42; by Baron Martin in Lord Lonsdale v. Rigg, 11 Ex. 654, 25 L. J. Ex. 73; and in this last case, when before the Court of Error, 1 Hurl. & N. 923, 937, 26 L. J. Ex. 196, Mr. Justice COLERIDGE said, "The grouse shot (i. e. shot by the defendant, a wrong-doer)" on the land of the plaintiff belonged to him according to all the authorities."

It certainly would not be right to disturb a principle of law so long established unless it could be clearly shown to be erroneous. And it appears to me not only to be well founded, but that

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very strange consequences would follow from adopting the [* 641] view contended for by 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 possessor, though a wrong-doer, having a right to it against all the world, there being no one entitled as owner to challenge his possession, might maintain an action against the owner of the land for taking the game from him, even upon the land itself where it was killed. It is much more reasonable to hold that the trespasser having no right at all to kill the game, he can give himself no property in it by his wrongful act; and that as game killed or reduced into possession, is the subject of property, 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.

This view of the case will render the distinction suggested in the course of the argument, between killing and carrying away the rabbits, as parts of one and the same continuous act, and killing them and leaving them upon the land, and coming back for them, wholly immaterial. 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.

For these reasons I think that the judgment of the Court of Exchequer Chamber, affirming the judgment of the Court of Common Pleas, was right, and ought to be affirmed.

Judgment affirmed, and appeal dismissed with costs. Lords' Journals, 13 June, 1865.

ENGLISH NOTES.

The case of Sutton v. Moody so much commented on in the above judgment was an action of trespass brought by the owner of the ground for hunting, and killing his rabbits. The question turned upon the word his (suos), it being argued for the defence that the rabbits being wild by nature could not be his, although they might be his if he had the franchise or privilege of a warren. This argument did not prevail: "for (per HOLT, Chief Justice, as reported by Lord Raymond, p. 250) a warren is a privilege to use his land to such a purpose; and a man may have warren in his own land, and he may alien the land and retain the privilege of warren. But this gives no greater property in the conies to the warrener, for the property arises to the party from the possession; and therefore if a man keeps conies in his close (as he

may), he has a possessory property in them so long as they abide there; but if they run into the land of his neighbour, he (scil., the owner of the former close) may kill them, for then he has the possessory property. If A. starts a hare in the ground of B. and hunts it, and kills it there, the property continues all the while in B. But if A. starts a hare in the ground of B., and hunts it into the ground of C., and kills it there, the property is in A., the hunter; but A. is liable to an action. of trespass for hunting in the ground of B. as well as of C. But if A. starts a hare, &c. in a forest or warren of B., and hunts it into the ground of C., and there kills it, the property remains all the while in B., the proprietor of the warren, because the privilege continues. And these distinctions HOLT, Chief Justice, took upon the authority of 12 Hen. 8, c. 9. And by the whole COURT judgment was given for the plaintiff, because he had a property by the possession." The propositions of C. J. HOLT are stated in the report of Comyns (p. 33) somewhat differently: "If a man start a hare in his own ground, and course it to the close of another person, and there takes it, the hare belongs to the owner of the ground where it was first started; but if it was started in the close of another man and there killed, it is the hare of the owner of the close where it was killed; but if the hare starts in another man's ground, and is coursed out of it, it is the hare of the captor, for the property rests in the owner of the soil, ratione loci; but if she runs beyond his (the captor's) ground (being feræ naturæ), he loseth the property; thus during the time they are in his soil the plaintiff may call them his conies; and it is the same thing where conies are in a warren, or deer in a park, as where they are in a man's field or close; for warrens and parks are privileges, but do not give any property."

It is not very easy to gather from the above reports what was Lord HOLT's exact view in each of the cases supposed. But the judgment of the Court is quite clear, and is in accordance with that of the House of Lords in the principal case. It is also to be noted that if it was Lord HOLT's view that the right of a captor, being a trespasser, is to prevail against the right of the owner of the ground into which the animal has run, this view is not countenanced by the House of Lords in the principal case, and is expressly questioned, if not repudiated, by Lord WESTBURY and Lord CHELMSFORD. The decision therefore of Churchward v. Studdy (K. B. 1811), 14 East, 249, 12 R. R. 513, which carries that view into effect, must now be regarded as of doubtful authority.

Upon the point that the taking of a thing which is nullius in bonis may vest the property in the owner of the soil where it is taken, the principal case is followed (in regard to wrongful removal of sea-weed) by the Irish Court of Exchequer and Exchequer Chamber in Brew v. Haren (1874, 1877), Ir. Rep. 9 C. L. 29, and 11 C. L. 198.

The doctrine of the principal case has been held in this country in respect to bees. Thus in the recent case of Rexroth v. Coon, 15 Rhode Island, 35; 2 Am. St. Rep. 863, it was held that a trepasser who puts in a tree on another's land a box for bees to hive in, cannot maintain trover against a third person for taking bees and honey from the box. The Court said: "Bees are feræ naturæ, and the only ownership in them until reclaimed and hived is ratione soli. This qualified ownership, however, although exceedingly precarious, cannot be changed or terminated by the act of a mere trespasser. That is to say, the act of reducing a thing feræ naturæ into possession, where title is created, must not be wrongful. And if such an act is effected by one who is at the moment a trespasser, no title to the property is created;" citing the principal case. "We understand that the law in this country with regard to property in animals feræ naturæ is substantially in accord with that of England, excepting of course all game laws and statutory regulations, which are now very numerous upon this subject. See Idol v. Jones, 2 Devereux, 162."

This is also the doctrine of Goff v. Kilts, 15 Wendell (New York), 550, a bee case. The Court say: "The natural right to the enjoyment of the sport of hunting and fowling, wherever animals feræ naturæ could be found, has given way in the progress of society to the establishment of rights of property better defined and of a more durable character. Hence no one has a right to invade the inclosure of another for that purpose. He would be a trespasser, and as such liable for the game taken."

So in Ferguson v. Miller, 1 Cowen (New York), 243; 13 Am. Dec. 519, it was held that wild bees in a bee tree belong to the owner of the soil where the tree stands; and in Gillet v. Mason, 7 Johnson (New York), 16, it was held that finding such a tree on another's land, and marking it with the finder's initials, does not work a reclamation. See note, 70 Am. Dec. 260; 18 id. 553. In Sterling v. Jackson, 69 Michigan, 488; 13 Am. St. Rep. 405, the court said: "Since every person has the right of exclusive dominion as to the lawful use of the soil owned by him, no man can hunt or sport upon another's land but by consent of the owner." Citing the principal case. This was a case of shooting wild duck from a boat in a bay, the soil of which was in private ownership, and it was held that the navigability of the water made no difference. Two judges dissented.

IF

No 2. GUNDRY v. FELTHAM.

(K. B. 1786.)

RULE.

Ir a person finds a noxious animal on his land; and, in order to kill it, and as the only means and way of so doing, hunts it out of his land and follows it over land of others.

No. 2. Gundry v. Feltham, 1 T. R. 334, 335.

doing as little damage as possible, he is not liable for the trespass.

Gundry v. Feltham.

1 T. R. 334-338 (s.c. 1 R. R. 215-219).

[334] Trespass for breaking and entering the plaintiff's closes, with horses, dogs, &c., and for beating and hunting for game therein, and for breaking down, trampling down, and destroying the hedges of the plaintiff.

Pleas. 1st, The general issue, on which issue was taken; 2dly, And for a further plea in this behalf, as to the breaking and entering the said closes of the said plaintiff, in the said declaration mentioned, at one of the said several days and times when, &c. in the said declaration mentioned, and with feet in walking, and with the said horses in the said declaration mentioned, and with the said hounds, greyhounds, and other dogs, in the said declaration mentioned, treading down, consuming, and spoiling a little of the grass then and there growing and being; and as to the breaking down, trampling down, treading down, prostrating, and destroying, a little of the hedges and fences in the said declaration mentioned, there then standing, growing, and being, in and upon the [* 335] said closes in the said * declaration mentioned, by the said defendant above supposed to have been done, he the said defendant, by leave of the Court, &c. says, that he the said plaintiff ought not to have or maintain his aforesaid action thereof against him the said defendant, because he says that before and at the said several days and times when, &c. the said hounds, greyhounds, and dogs, in the said declaration mentioned, were the hounds, greyhounds, and dogs, of one Humphry Sturt, Esq., and that the said Humphry Sturt was then a person qualified by the laws and statutes of this realm to keep and use the said hounds, greyhounds, and dogs, in the said declaration mentioned. And that the said H. Sturt, before the said several days and times when, &c. to wit, on the first day of September, 1785, aforesaid, at the parish aforesaid, in the said county of Dorset, had retained and employed the said defendant as his huntsman and servant, to hunt and take care of the said hounds, greyhounds, and dogs, in the said declaration mentioned; and that the said defendant, from that time until and at the said several days and times when, &c. had remained and continued, and then was such huntsman and servant of the said H.