sSS Cornell UN iversity Law Library. THE GIFT OF Date , J%% & 6U-0& i 'tf6 r ■ c. I „ Cornell University Library v.1 Illustrative cases in personalty 3 1924 019 198 260 7fs&T$^r i Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019198260 ILLUSTRATIVE CASES nr PERSONALTY. ^A H. w\ S. PATTEE, LL.D., DEAN OP COLLEGE OP LAW, ONIVEBBITT OF MINNESOTA. PHILADELPHIA: & J. W- JOHNSON & CO. 1893. Entered according to Act of Congress, in the year 1893, by WILLIAM S. PATTEE, LL.D., In the Office of the Librarian of Congress, at Washington. COLLINS PKIHTDtO HOUSE, 706 JAYNK 8TRKKT. PREFACE. These " Illustrative Cases in Personalty" have been selected for use in the class-room in connection with my lectures upon that subject. They are not "Leading," but "Illustrative" cases ; and hence I have made the selection almost entirely from the decisions of our American courts. ISor does this compilation pretend to cover the whole subject ; but only a part even of what the table of contents includes. Cases illus- trating how title to personalty may be acquired and lost are those most helpful in my work at the present time, and con- sequently they have been selected. It is proposed to add other cases until the entire subject is covered. W. S. PATTEE, LL.D., Dean of College of Law. University of Minnesota, Minneapolis, Minnesota. (iii) VI ILLUSTRATIVE CASES ^ 3 «r| * 8 « .s" .5. oft ,a to -2 ■3S?*o .ssS X 2."'° S P.* §.« »m; 0) O r III 3 5 SoB? ■S5.2 3 a 3 ! a % B 5 6 § S a I IN PERSONALTY. VU 3a^ s 1 ^ ag O ~a> . M (fl 5-1 GO " th ei eo ■* CI 1 a a w ■< S a b s-8 " al|| £' = •2 8 a "ij g SCO c -m P "^ ira to r-> co l - n ■a J3 II *■ nn - - fendant was actually at work erecting the very obstruction com- plained of. I am now furnished with the briefs of the counsel of the respective parties, on a motion to dissolve the injunc- tion upon the case made by the bill, and shall consider the same without prejudice, as if the propriety of the interference of the Court was now for the first time considered. I am not aware that this question has ever been decided in New Jersey,, and it has caused me some anxiety to determine, not so much what views have been taken by other Judges and in other countries, of the question, but what should be the course of decision in this State, and particularly in a country under a rapidly increasing state of improvement. It would seem 1 2 ILLUSTRATIVE CASES , unreasonable, that in those places where land is cheap, and the country thinly settled, a party, after being permitted to build his house and place his windows on the side adjoining the open field of another man, and especially after so long a possession as to presume a grant for that purpose, should have them ob- structed by the erection of a wall or another building, when perhaps a little accommodation, by placing the new building a few feet further off, might work no injury to anybody ; and yet in populous cities, where land is very valuable, and it is the constant practice to place buildings side by side, the enforce- ment of the same rule might work great inconvenience and injustice. The difficulty, therefore, is to lay down one rule for all cases. Nor will it do to leave all parties to their remedy at law. That would be shutting up the doors of a court of equity, when the exercise of its legitimate powers is most needed. Cases might arise where damages would be no adequate com- pensation for the injury sustained, and the party unable to re- spond in damages at all. The cases in the English Courts are numerous in which damages at law have been recovered for obstructing lights, and where injunctions have been issued to prevent such obstructions. The law is there well settled, and of long standing. In 1 Levinz' Rep. 122, the case of Palmer v. Fletcher, there is an early and important decision on this subject. This was a case at law. A man built a house on his own lands, and then Bold the house to one man, and the land adjoining to another, who obstructed the windows of the house by piles of timber. This house had been recently built, yet the action was sustained. The Judges differed as to what would have been the result had the man sold the vacant lot first, seeing the building had been recently erected ; but all agreed, that if a stranger had owned the adjoining lands, he might obstruct the lights of a newly erected building, but not of an ancient building so that he has gained a right in the lights by prescription. In 1 Comyn's Digest, title, " Action on the Case for a Nui- sance," A., the cases are cited in which actions on the case for a nuisance have been allowed. If a man erect a house or mill to the nuisance of another, every occupier afterwards is subject to an action for the nuisance. IN PERSONALTY. 3 In the case of Rosewell v. Pryor,6 Modem, 116, the question was, whether in a declaration for stopping the plaintiffs lights, it was necessary to state the lights and the messuage as being ancient, and it was held not to be necessary. In that case, Holt, Chief Justice, says : " If a man have a vacant piece of ground, and build thereupon, and that house has very good lights, and he lets this house to another, and after he builds upon a con- tiguous piece of ground, or lets the ground contiguous to another, who builds thereupon to the nuisance of the lights of the first house, the lessee of the first house shall have an action upon the case against such builder, for the first house was granted to him with all the easements and the lights then be- longing to it." This general principle is also stated in 3 Bl. Com. 217, where it is declared to be essential to the maintenance of the actioD, that the windows be ancient. The English cases are uniform on this subject; and Chaucellor Kent, in 3 Kent's Com. 445, declares in general terms, that " according to the English law, the owner of a house will be restrained by injunction, and he will be liable to an action on the case, if he makes any erections or improvements, so as to obstruct the ancient lights of an adjoining house." . In our own country, too, the same doctrines have been main- tained ; and I do not perceive that Chancellor Kent, in his Com- mentaries above referred to, denies anywhere that the same rules of law on this subject apply in this country, except in a note, where he declares that this common law prescription does not reasonably or equitably apply to buildings on narrow lots in the rapidly growing cities in this country, and upon the ground that such was not the presumed intention of the owners of such lots. From all he says, I infer that he recognizes the general principles before stated as in force in this country, but exempts the case of city lots, from the necessity and reason of the thing, as necessary for their advancement and continued improvement The case of Story v. Odin, in 12 Mass. 157, is a very clear and plain decision in our own Courts. The property was situated in the town of Boston. The building was purchased of the town in 1795, and stood adjoining other lands of the town, with lights looking out directly upon this vacant land. In 1812, the 4 ILLUSTRATIVE CASES town sold this vacant lot, and the purchaser built directly ad- joining the plaintiff's building, and obstructed his lights. The Court decided, that as the purchaser of the first building bought without reserving to the grantors any right to build on the ad- joining ground so as to interfere with his lights, they could not, nor could their grantees, build so as to interfere with this right. As to the proper cases for the interference of this Court to prevent private nuisance, the true rule, as it appears to me, is laid down in the case of Van Bergen v. Van Bergen, in 3 John. Ch. Rep. 287. The Chancellor says : " The cases in which chancery has interfered by injunction to prevent or remove a private nuisance, are those in which the nuisance has been erected to the prejudice or annoyance of a right which the other party had long -previously enjoyed. It must be a strong and mis- chievous case of pressing necessity, or the right must have been previously established at law, to entitle the party to call to his aid the jurisdiction of this Court." From a careful examination of the cases, and the principles on which they are decided, I have come to the conclusion, that the same rules which have been established in the English Courts, and in other States of the Union, upon this subject, apply with the same force to us, and that there is nothing in our condition which can prevent their wholesome application; that, as a general rule, in a case of ancient lights, where they have existed for upwards of twenty years undisturbed, the owner of the ad- joining lot has no right to obstruct those lights, and particularly so, if the adjoining lot was owned by the man who built the house at the time, and subsequently sold by him; and that, whether this Court will interfere by injunction, or leave the party to establish his right at law, must depend on the particular circumstances of each case. It remains to be considered, what is the case of the present complainants, and whether the injunction should be continued or not. The property is situated in Belvidere, in the county of War- ren, in this State, and was owned in fee, and possessed (as well the lot on which the house is built, as the adjoining one on which the obstruction is about to be erected) as far back as the year 1797, by one Benjamin Sexton. The premises consisted of IN PERSONALTY. 5 two lots, numbered 9 and 10, and adjoined each other. Sexton owning both these lots, which were each fifty-two feet in front and rising one hundred feet deep, in the year 1801 or 1802 erected the house in question, on lot No. 10, for his own resi- dence, and placed the same on the line between said lots Nos. 9 and 10, and built on the end towards lot No. 9 six windows, besides two in the cellar. These windows have continued, unmolested, to receive light and air from across this lot No. 9, until the recent attempt of the defendant to build his wall for a new house directly against the same. Benjamin Sexton died intestate, in the year 1806 ; and his heirs at law sold lot No. 10, with the aforesaid house, on the 14th of March, 1829, to one Smith, who afterwards sold the same to the complainants. The lot No. 9 was conveyed by two of the heirs of Benjamin Sexton to a third heir, on the 28th of April, 1828 ; and that heir again conveyed the same, on the 20th of January, 1831, to one Mat- thews ; which lot has since been conveyed to, and is now the property of, the defendant. On lot No. 9 there was also a building, standing back from the street about forty feet, and the front about eighteen feet from the nearest corner of the dwelling-house on lot No. 10. Under these circumstances the defendant has commenced building the foundation of a house or shop, directly adjoining the house on lot No. 10, and so as to shut up the windows of that house. He is enjoined by this Court from so doing, and the question is, whether that injunction should be dissolved. I am very clear the injunction ought not to be dissolved, and that upon all the authorities cited. The case is a very strong one. The builder of this house owned both lots at the time of erecting the building. The lights are ancient, having continued unmolested for thirty-five years. Lot No. 10, on which the house stands, passed out of the hands of the heirs at law of the original owner first ; and there is no pressing necessity for this interference with the established rights of the complainants. I am, therefore, of opinion, that the injunction was rightly issued in this ease, and ought not to be disturbed. Motion denied. 6 ILLUSTRATIVE CASES The Contrary Opinion. Hubbard v. Towns. Supreme Court of Vermont. 33 Vermont, 295. Pierpoint, J. This action is brought to recover the damage claimed to have been sustained by the plaintiff in consequence of the defendant's obstructing his lights. It appears from the case that the building, which has been owned and occupied by the plaintiff and his tenants for more than twenty-five years prior to the acts complained of, stands upon the line between his premises and the premises of the defendant, and that the defendant has owned and occupied his premises during the aforesaid period ; that the windows in the plaintiff's building opened out toward the premises of the defendant, admitting light from that direction, and that they have so remained with- out obstruction and without question on the part of the de- fendant for the period of twenty-five years or more ; that in 1859 the defendant erected a building on his own premises immediately adjoining that of the plaintiff, so as to exclude the light from two of the plaintiff's windows. The only question involved in this case is, whether the plain- tiff by such long and uninterrupted use of his windows, and the light passing through them, has thereby acquired the right so to continue his windows and thus to have the light pass through them, so that any act of the defendant which shall materially obstruct such light will make him a wrongdoer, and liable for any damage to the defendant that may ensue therefrom. The rule seems now to be well settled in England, that such long and uninterrupted use of light gives the right to continue its use, and to insist upon its remaining unobstructed by the adjoining proprietor for all time. The Courts place this upon the same ground as rights of way, and other rights acquired in and over the premises of another by long and undisturbed use ; presuming from the long exercise of the privilege by the one, and an acquiescence therein by the other, that the right had its origin in a, grant. While the general doctrine has been universally adopted in IN PERSONALTY. 7 this country, its application to cases of this kind has not heen generally recognized, and in many of the States has been expressly denied. Our statute of limitations cannot be brought in aid of the plaintiff's claim. The statute in terms only deprives the aggrieved party of the right of action after the limited period from the time the cause of action accrues, and although our Courts have held that the exercise of the right by one party, and an acquiescence therein by the other, for Buch period, vests in the party so exercising it an absolute right, still, in deter- mining the question whether such right has in fact become an absolute one, the time that the one has so exercised it is to be computed from the period when a cause of action therefor first accrued to the other, which he has omitted to enforce ; so that no right can be lost or acquired by virtue of the statute where there has been no act done by the one for which the law gives a remedy by action to the other ; and it is conceded in this case that the defendant had no right of action against the plaintiff for any act of his in erecting his building and opening and continuing his windows on the side adjoining to and overlooking the defendant's premises. This reason would seem to apply with equal force against the plaintiff's right to recover on the ground that a grant will be presumed from lapse of time to sustain his claim. The principle upon which a grant is presumed is, that in no other way can the acts of the parties be rationally accounted for. Such presumption is required to account for the exercise of the right by the one, and the acquiescence therein by the other, for so long a period. The right must be exercised adversely or under a claim of a right so to exercise it by the one, and it must be acquiesced in by the other. This of itself presupposes that the exercise of the right by the one, without a grant, is a violation of some right of the other; otherwise it could not be adverse within the meaning of the rule ; neither could the other acquiesce, for that presupposes a legal right to object and resist. If, then, there is no violation of the rights of another, no pre- sumption of a grant by such other arises ; there is no occasion 8 ILLUSTRATIVE CASES for it. There is no right exercised or claimed by the one that belongs to the other, or which he could grant, if he should attempt it. How, then, can this doctrine of presumption apply to a case like the present ? The erection of the building by the plain- tiff on the line between him and the defendant was no violation of any right of the defendant; he could not complain of or prevent it, and his assent or dissent could in no manner affect the transaction. The legal right to do the act was perfect in the plaintiff. His right to erect his building on the division line is not controverted ; the wisdom of the act is more ques- tionable. He might have made his walls solid, thus entirely excluding the light from that direction ; he chose to leave apertures therein, thereby allowing the light to remain un- affected to that extent ; but how can it be said that by exclud- ing the greater part he acquires any better right to the remainder than he would have had to the whole if he had not excluded any ? He has not done any act which has had any effect to control or influence the light, except to exclude it. He did not draw or cause the light to pass in upon his premises in any other than its natural manner ; it remained upon and over the defendant's premises as it had always been. As there was no interference with the rights of the defendant, it is diffi- cult to see upon what the presumption of a grant can be based. Lapse of time and the presumption arising therefrom are re- sorted to only to justify in one that which would otherwise be a usurpation of the rights of another. If a man can acquire, by use, a right to an uninterrupted enjoyment of light under circumstances like the present, why not acquire a right to a like enjoyment of the prospect from the same windows, or to a free access of the air to the outside of his building to prevent decay, and many other rights of a simi- lar and no more ethereal character ? The result of which would be, if allowed, an utter destruc- tion of the value of the adjoining land for building purposes. Windows are often of more importance for the prospect they afford than for the light they admit. The light may be obtained from other directions, the prospect cannot. A pleas- ant prospect from the windows of a dwelling always contributes IN PERSONALTY. 9 more or less to the enjoyment of the occupants, and often enters largely into its pecuniary estimate. But to admit that a mere enjoyment of such prospect for fifteen years gives him the right to insist that it shall remain uninterrupted for all future time, would be to recognize a principle at variance with well- established rules, and one that could not be tolerated in this country. No such right can be acquired by use, for the same reason that its exercise by one is no infringement -of the rights of another, for which the law gives an action. Le Blanc, J., in Chandler v. Thompson, 3 Camp. 82, says: "That although an action for opening a window to disturb the plaintiff's privacy was to be read of in the books, he had never known such an action to be maintained, and that he had heard it laid down by Eyre, Ch. J., that such an action did not lie." We think the English Courts, in applying the doctrine of the presumption of grants from long use and acquiescence to this class of cases, clearly departed from the ancient common law rule as laid down in Berry v. Pope, Cro. Eliz. 118, and the error, as it seems to us, consists in placing cases like the present upon the same footing and making them subject to the same rules that govern another class of cases, to which they really have no analogy. In Lewis v. Price, 2 Saund. 175a, Wilmot, J., said : "That where a house has been built forty years, and has had lights at the end of it, if the owner of the adjoining ground builds against them so as to obstruct them, an action lies ; and this is founded on the same reason as where they have been imme- morial, for this is long enough to induce a presumption that there was originally some agreement between the parties and .... that twenty years was sufficient to give a man a title in eject- ment on which he may recover the house itself, and he saw no reason why it should not be sufficient to entitle him to an ease- ment belonging to the house." As we have already seen, no presumption of an agreement arises, as none was necessary to justify the act. The man who occupies his own house tor twenty years has no better title to it at the end of that time than he had in the outset. Does he acquire any greater right to the light by the occupation than to the house ? Clearly not: having usurped no right, he can acquire none 10 ILLUSTRATIVE CASES by lapse of time. The error in the reasoning is in saying that because the man who takes possession of his neighbor's house and holds it adversely for twenty years (his neighbor acquiesc- ing therein) acquires a title to it, therefore the man who opens windows in his own house that in no way interfere with the rights of his neighbor, and of which such neighbor has no legal right to complain, and keeps them open for twenty years, thereby acquires a right to insist that no act shall be done by his neighbor on his own land that in any respect interferes with or obstructs the light to those windows. In the one case there is an infringement of the rights of another for which the law gives a remedy by action ; in the other there is not. This con- stitutes a radical difference between the two cases, and that, too, in respect to the very point upon which the whole doctrine of presumption in cases like those under consideration depends. It might be urged with much force that a man who conveys a house with the privileges, etc., would not have a right to make an erection on his own land adjoining that would shut out the light from the windows in the house so conveyed, and it may be said that he who has occupied another's house for such a length of time and under such circumstances that a grant will be presumed, stands upon the same footing as an ordinary grantee. However that may be, this case involves no such question. In those cases the question turns upon the fact that the title to the premises was derived by deed, actual or pre- sumed, from the party who seeks to deprive his grantee of the enjoyment of the right he has conveyed. The right does not depend upon the lapse of time, but is as perfect in the grantee the moment the deed is executed as it can ever be. Here the title to the premises of the plaintiff was never in the defendant, but has been in the plaintiff through the whole period. This question was fully considered in New York, in the case of Parker v. Foote, 19 Wendell, 309. Bronson, J., says ; " Upon what principle Courts in England have applied the same rule of presumption to two classes of cases so essentially different in character I have been unable to discover. If one commit a daily trespass upon the laud of another, under a claim of right to pass over, or feed his cattle upon it, or divert the water from his mill, or throw it back upon his land or machinery, in these IN PERSONALTY. 11 and the like cases long-continued acquiescence affords strong pre- sumption of right. But in the case of lights there is no adverse user, nor, indeed, any use whatever of another's property, and no foundation is laid for indulging any presumption against the rightful owner." And again he says : " There is no prin- ciple, I think, upon which the modern English doctrine of ancient lights can be supported." The same doctrine was held in Pierre v. Eernald, 26 Maine, 436, and in Napier v. Bulwinkle, 5 Richardson (S. C), 312, in both of which cases the subject was fully discussed. We see no reason growing out of the nature or necessities of this class of cases that require us to extend the doctrine of the presumption of grants to them ; but, on the other hand, the establishment of a rule that would require a man to erect a building or wall that he did not need on his own premises, for the sole purpose of excluding the light from his neighbor's windows, would lead to continual strife and bitterness of feel- ing between neighbors and result in great mischief. The judgment of the County Court is affirmed. 2 Blackstone's Comm. 395, 402 ; Jenks v. McWilliams, 115 Mass. Guest v. Eeynolds, 68 111. 474 ; 217 ; Morrison v. Marquardt, 24 la. 25 ; Rogers v. Sawin, 10 Gray, 376 ; Pierce v. Farnald, 26 Me. 476 ; Haverstick v. Sipe, 33 Pa. St. 368 ; Mullen v. Strieker, 19 Oh. St.135 ; Parkin v. Foote, 19 Wend. 309 ; Myers v. Gemmel, 10 Barb. 537. n. THE AIR. Bishop v. Banks. Supreme Judicial Court of Connecticut. 33 Conn. 118. Park, J. The respondent has successfully answered all the claims of the petitioner for a continuance of the injunction, with but one exception, and that is, in relation to the bleating of calves kept upon the premises for slaughter. We think the facts found by the Court below upon this subject are sufficient 12 ILLUSTRATIVE CASES to require the interposition of the Court to prevent its continu- ance. It is found that the annoyance to the petitioner, proceeding from this cause, was so great at times as to drive him and his family from the occupancy of that part of his house nearest to the premises of the respondent. The Court presents an extreme case of the kind — one that will constitute a nuisance, if a nuisance can be produced from such cause. In the cases of Whitney v. Bartholomew, 21 Conn. 213, and of Brown & Brothers v. Illius, 27 Id. 84, this Court distinctly recognize the doctrine that a nuisance may be produced by offensive sounds in the prosecution of business lawful per se. The same doctrine is held in the case of Soltau v. DeHeld, 9 Eng. L. & Eq. R. 104, where an injunction was granted to restrain the ringing of church bells by a Roman Catholic community, although they were rung only upon the Sabbath. They were located so near a person's residence that his peace and quiet were greatly disturbed. If sounds of such character and so made can be sufficient to constitute a nuisance, how can it be questioned in the case under consideration? It is difficult to conceive of any noise more destructive to the comfort and happiness of a family than the constant wail- ing of animals iu distress in the immediate vicinity of their residence. Enjoyment under such circumstances would require nerves of brass and a heart of steel. But it is unnecessary to pursue this subject, for reason and law harmonize in declaring that the conduct of the respondent in this particular is unlawful and wrong. He should remember the maxim sic utere tuo ut alienum non loedas, and conduct accordingly. The remaining claims urged by the petitioner for a continu- ance of the injunction are not supported by the allegations of his bill, and we do not therefore consider them. We advise the Superior Court to so modify the injunction that the respondent may be allowed to prosecute his business, but to prevent the bleating of calves and the raising of offen- sive smells to the annoyance of the petitioner. In this opinion the other Judges concurred. 3 Kent, ? 448, and note ; Eich v. Basterfield, 4 Com. Bench, I. C. B. B. Co. v. Grabel, 50 IU. 783 ; 421; Brady et al. v. Weeks et a/,, 3 Fish v. Dodge, 4 Denio, 311 ; Barb. 157; Wood on Nuisances, § 76. IN PERSONALTY. 13 III. WATER. DUMONT V. KELLOGG. Supreme Court of Michigan. 29 Mich. 420. Coolet, J. The grievance complained of by Kellogg in the Court below was that Dumont had constructed a dam across a natural water-course, and by means thereof wrongfully detained the water in the stream to the prejudice and injury of the plain- tiff, who was proprietor of a mill previously erected on the stream below. The reservoir created by defendant's dam was quite a large one, and plaintiff gave evidence that the flow of water in the stream below was considerably diminished by the increased evaporation and percolation resulting from the con- struction of this dam. The plaintiff had judgment in the Court below, and the case comes here upon exceptions, the errors principally relied upon being assigned upon the instructions to the jury, and involving the relative rights of riparian pro- prietors to make use of the waters of a running stream which is common to both, and to delay its flow for that purpose. The instructions given were numerous, and the most of them were unexceptionable. Others appear to be based upon a view of the law which is not to be reconciled with the authorities. Of these are the following : — " Every proprietor of lands on the banks of a stream and every mill-owner has an equal right to the flow of water in the stream as it was wont to run, without diminution or alteration ; no proprietor has the right to use the water to the prejudice of the proprietors below him without the consent of the proprietors below ; he cannot divert or diminish the quantity which would otherwise descend to the proprietors below. " He must so use the water as not materially to affect the appli- cation of the water below or materially diminish its quantity. " If the jury find from the evidence that Dumont's dam and pond have' diminished, by the increased evaporation and soak- 14 ILLUSTRATIVE CASES age occasioned by it, the flow of the water in the Dumont Creek one-third, or any other material amount, and that the plaintiff has sustained damages thereby, then the plaintiff is entitled to recover in this action. " The rights of a riparian proprietor are not to be measured by the reasonable demands of his business. His right extends to the use of only so much of the stream as will not materially diminish its quantity, so that in this case the question whether defendant needs the water as he uses it in his business is entirely immaterial. " The defendant had the right to build a dam upon his land, but he must so construct the dam and so use the water as not to injure the plaintiff below in the enjoyment of the same water, according to its natural course." In endeavoring to determine the soundness of these instruc- tions, we may dismiss from the mind the fact that the plaintiff had first put the waters of the stream to practical use, since that fact gave him no superiority in right over the defendant. The settled doctrine now is that priority of appropriation gives to one proprietor no superior right to that of the others, unless it has been continued for a period of time, and under such circumstances as would be requisite to establish rights by prescription : Piatt v. Johnson, 15 Johns. 213 ; Tyler v. Wilkinson, 4 Mason, 397; Gilman v. Tilton, 5 N. H. 231; Pugh v. Wheeler, 2 Dev. & Bat. 50 ; Hartsall v. Sill, 12 Penn. St. 248 ; Gould v. Boston Duck Co., 13 Gray, 442 ; Wood v. Edes, 2 Allen, 578 ; Parker v. Hotchkiss, 25 Conn. 321 ; Heath v. Williams, 25 Me. 209 ; Snow v. Parsons, 28 Vt. 463 ; Bliss v. Kennedy, 43 111. 67 ; Cowles v. Kidder, 24 H". H. 378. It is not claimed that any question of prescription is involved, and the case is consequently to be regarded as only presenting for adjudication the relative rights of the parties at the com- mon law to make use of the flowing waters of the stream, un- affected by any exceptional circumstances. And in considering the case, it may be remarked at the outset that it differs essentially from a case in which a stream has been diverted from its natural course and turned away from a proprietor below. No person has a right to cause such a diver- sion, and it is wholly a wrongful act, for which an action will IN PERSONALTY. 15 lie without proof of special damage. It differs, also, from the case of an interference by a stranger, who, by any means, or for any cause, diminishes the flow of the water ; for this also is wholly wrongful, and no question of the reasonableness of his action in causing the diminution can possibly arise. And had the instructions which are excepted to been given with refer- ence to a case of diversion, or of obstruction by a stranger, the broad terms in which the responsibility of the defendant was laid down to the jury might have found abundant justification in the authorities. But as between two proprietors, neither of whom has acquired superior rights to the other, it cannot be said that one " has no right to use the water to the prejudice of the proprietor below him," or that he cannot lawfully " diminish the quantity which would descend to the proprietor below," or that " he must so use the water as not materially to affect the application of the water below, or materially to diminish its quantity." Such a rule would be in effect this : That the lower proprietor must be allowed the enjoyment of his full common-law rights as such, not diminished, restrained, or in any manner limited or qualified by the rights of the upper proprietor, and must receive the water in its natural state as if no proprietorship above him existed. Such a rule could not 'be the law so long as equality of right between the several proprietors was recognized, for it is manifest it would give to the lower proprietor superior advantages over the upper, and in many cases give him in effect a monopoly of the stream. Cases may unquestionably be found in which the rule of law is laid down as broadly as it was given by the circuit Judge in this case ; but an examination of them will show either that the facts were essentially different, or that the general language was qualified by the context. Thus the language employed in the first instruction as above given seems to have been quoted from Lord Tenterden in Mason v. Hill, 3 B. & Adol. 312. But there it had reference to a case of diversion of water, and was strictly accurate and appropriate. The same language substan- tially is made use of in Twiss v. Baldwin, 9 Conn. 291 ; Wadsworth v. Tillotson, 15 Conn. 373 ; Arnold v. Foot, 12 "Wend. 331 ; and probably in many other cases, and is adopted 16 ILLUSTRATIVE CASES by Chancellor Kent in his Commentaries (vol. 3, p. 439). See also Bealey v. Shaw, 6 East, 208 ; Agawam Canal Co. v. Edwards, 36 Conn. 497; Williams v. Morland, 2 B. & C. 913; Mason v. Hill, 5 B. & Adol. 1 ; Tillotson v. Smith, 32 N". H. 95. But as between different proprietors on the same stream, the right of each qualifies that of the other, and the question always is, not merely whether the lower proprietor suffers damage by the use of the water above him, nor whether the quantity flowing on is diminished by the use, but whether under all the circumstances of the case the use of the water by one is reasonable and consistent with a correspondent enjoy- ment of right by the other. " Each proprietor is entitled to such use of the stream so far as it is reasonable, conformable to the usages and wants of the community, and having regard to the progress of improvement in hydraulic works, and not in- consistent with a like reasonable use by the other proprietors of land on the same stream above and below." Shaw, Ch. J., in Cary v. Daniels, 8 Mete. 477. " The common use of the water of a stream by persons having mills above, is frequently, if not generally, attended with damage and loss to the mills below ; but that is incident to that common use, and for the most part unavoidable. If the injury is trivial, the law will not afford redress, because every person who builds a mill does it subject to this contingency. The person owning an upper mill on the same stream has a lawful right to use the water, and may apply it in order to work his mills to the best advan- tage, subject, however, to this limitation : That if in the exer- cise of this right, and in consequence of it, the mills lower down the stream are rendered useless and unproductive, the law in that case will interpose and limit this common right so that the owners of the lower mills shall enjoy a fair participa- tion :" Woodworth, J., in Merritt v. Brinkerhoff, 17 Johns. 321. It i3 a fair participation and a reasonable use by each that the law seeks to protect. Such interruption in the flow " as is necessary and unavoidable by the reasonable and proper use of the mill privilege above" cannot be the subject of an action: Chandler v. Howland, 7 Gray, 350 ; and see Embrey v. Owen, 6 Exch. 353; Hetrich v. Deadlier, 6 Penn. St. 32; Hartzall v. Sill, 12 Penn. St. 248 ; Pitts v. Lancaster Mills, 13 IN PERSONALTY. 17 Met. 156 ; Bliss v. Kennedy, 42 111. 68. As was said by Mr. Justice Story in Tyler v. Wilkinson, 4 Mason, 401, to hold that there can be no diminution whatever, and no obstruction or impediment whatsoever, by a riparian proprietor in the use of water as it flows, would be to deny any valuable use of it. There may be and there must be allowed of that which is com- mon to all a reasonable use by each. And if further authorities are important, Palmer v. Mulligan, 3 Caines, 308 ; Dilling v. Murray, 6 Ind. 324 ; Snow v. Parsons, 28 Vt. 459 ; Hayes v. Waklron, 44 1ST. H. 580 ; Davis v. Getchell, 50 Me. 602 ; and Clinton v. Myers, 46 1ST. Y. 514, may be referred to. It is, therefore, not a diminution in the quantity of the water alone, or an alteration in its flow, or either or both of these circum- stances combined with injury, that will give a right of action, if in view of all the circumstances, and having regard to equality of right in others, that which has been done and which causes the injury is not unreasonable. In other words, the injury that is incidental to a reasonable enjoyment of the com- mon right can demand no redress. We think the Court erred also in declining to instruct the jury on defendant's request that in determining the question of reasonable use by the defendant they might consider, among other things, the general usage of the country in similar cases. As was said in Gould v. Boston Duck Co., 13 Gray, 452 : " Usage is some proof of what is considered a reasonable and proper use of that which is a common right, because it affords evidence of the tacit consent of all parties interested to the general convenience of such use." And see Thurber v. Martin, 2 Gray, 394 ; Snow v. Parsons, 28 Vt. 459. Indeed in most cases this proof is the most satisfactory and conclusive that could be adduced, being established by the parties concerned, who understand better than any others what is reasonable and con- venient, and who would not be likely to acquiesce in anything which was not so. These errors render it necessary to order a new trial. Some of the rulings on the admission of evidence seem to have been very liberal, but we are not satisfied that they exceeded the bounds of judicial discretion. 2 18 ILLUSTRATIVE CASES The judgment will be reversed, with costs, and a new trial ordered. The other Judges concurred. Heath v. Williams, 25 Me. 209 ; Garwood v. U". T. C. & H. R. R. Parker et al. v. Hotchkiss, 25 R. Co., 83 N. Y. 400 ; Conn. 321 ; Swindon Water Wrks. Co. v. Wilts Snow v. Parsons, 28 Vt. 459 ; & Berks Canal Nav. Co. , L. R. 7 H. City of Emporia v. Sod en, 25 Kas. L. 697. 588; IN PERSONALTY. 19 ANIMALS FER^E NATURiE. Per Industriam. " A qualified property may subsist in animals ferce naturce .... by a man's reclaiming them and making them tame by art, industry, and education, or by so confining them, within his own immediate power, that they cannot escape and use their natural liberty." 2 Blackstone's Comm. 391. 1. Acts necessary to subject wild animals to the control of man so he will possess in them a special property. Pierson v. Post. Supreme Court of New York. 3 Caines, 175. Tompkins, J. This cause comes before us on a return to a certiorari directed to one of the justices of Queens County. The question submitted by the counsel in this cause for our determination is, whether Lodowick Post, by the pursuit with his hounds in the manner alleged in his declaration, acquired such a right to, or property in, the fox, as will sustain an action against Pierson for killing and taking him away ? The cause was argued with much ability by the counsel on both sides, and presents for our decision a novel and nice ques- tion. It is admitted that a fox is an animal ferce vaturce, and that property in such animals is acquired by occupancy only. These admissions narrow the discussion to the simple question 20 ILLUSTRATIVE CASES of what acts amount to occupancy, applied to acquiring right to wild animals? If we have recourse to the ancient writers upon general prin- ciples of law, the judgment below is obviously erroneous. Justinian's Institutes, lib. 2, tit. 1, s. 13, and Eleta, lib. 3, c. 2, p. 175, adopt the principle that pursuit alone vests no property or right in the huntsman ; and that even pursuit, accompanied with wounding, is equally ineffectual for that purpose, unless the animal be actually taken. The same principle is recognized by Bracton, lib. 2, c. 1, p. 8. Puffendorf, lib. 4, c. 6, s. 2 and 10, defines occupancy of beasts ferce naturce, to be the actual corporal possession of them, and Bynkershoek is cited as coinciding in this definition. It is indeed with hesitation that Puffendorf affirms that a wild beast mortally wounded, or greatly maimed, cannot be fairly inter- cepted by another whilst the pursuit of the person inflicting the wound continues. The foregoing authorities are decisive to show that mere pursuit gave Post no legal right to the fox, but that he became the property of Pierson, who intercepted and killed him. It therefoi e only remains to inquire whether there are any contrary principles, or authorities, to be found in other books, which ought to induce a different decision. Most of the cases 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 ferce naturce have been apprehended ; the former claiming them by title of occupancy, and the latter ralione soli. Little satisfactory aid can, therefore, be derived from the English reporters. Barbeyrac, in his notes on Puffendorf, does not accede to the definition of occupancy by the latter, but, on the contrary, affirms that actual bodily seizure is not, in all cases, necessary to constitute possession of wild animals. He does not, however, describe the acts which, according to his ideas, will amount to an appropriation of such animals to private use, so as to exclude the claims of all other persons, by title of occupancy, to the same animals ; and he is far from averring that pursuit alone IN PERSONALTY. 21 is sufficient for that purpose. To a certain extent, and as far as Barbeyrac appears to me to go, his objections to Puffendorf s definition of occupancy are reasonable and correct. That is to say, that actual bodily seizure is not indispensable to acquire right to, or possession of, wild beasts ; but that,' on the con- trary, the mortal wounding of such beasts, by one not aban- doning his pursuit, may, with the utmost propriety, be deemed possession of him; since, thereby, the pursuer manifests an unequivocal intention of appropriating the animal to his indi- vidual use, has deprived him of his natural liberty, and brought him within his certain control. So also, encompassing and securing such animals with nets and toils, or otherwise inter- cepting them in such a manner as to deprive them of their natural liberty, and render escape impossible, may justly be deemed to give possession of them to those persons who, by their industry and labor, have used such means of apprehending them. Barbeyrac seems to have adopted, and had in view in his notes, the more accurate opinion of Grotius, with respect to occupancy. That celebrated author, lib. 2, c. 8, s. 3, p. 309, speaking of occupancy, proceeds thus : " Hequiritur autem cor- porate qucedam possessio ad dominium adipiscendum ; atque ideo, vulnerasse non suffieit." But in the following section he ex- plains and qualifies this definition of occupancy : " Sed possessio ilia potest non solis manibus, sed instrumentis, ut decipulis, retibus, laqueis dum duo adsint : primum ut ipsa instrumenta sint in nostra- potestate, deinde ut fera, ita inclusa sit, ut exire inde nequeat." This qualification embraces the full extent of Barbeyrac's objection to Puffendorf s definition, and allows as great a lati- tude to acquiring property by occupancy as can reasonably be inferred from the words or ideas expressed by Barbeyrac in his notes. The case now under consideration is one of mere pur- suit, and presents no circumstances or acts which can bring it within the definition of occupancy by Puffendorf, or Grotius, or the ideas of Barbeyrac upon that subject. The case cited from 11 Mod. 74-130, 1 think clearly distin- guishable from the present ; inasmuch as there the action was for maliciously hindering and disturbing the plaintiff in the exercise and enjoyment of a private franchise ; and in the report of the same case, 3 Salk. 9, Holt, Ch. J., states that the ducks 22 ILLUSTRATIVE CASES were in the plaintiff's decoy pond, and so in his possession, from which it is obvious the Court laid much stress in their opinion upon the plaintiff's possession of the ducks ratione soli. We are the more readily inclined to confine possession or occu- pancy of beasts ferce natures, within the limits prescribed by the learned authors above cited, for the sake of certainty, and pre- serving peace and order in society. If the first seeing, starting, or pursuing such animals, without having so wounded, circum- vented, or ensnared them, so as to deprive them of their natural liberty, and subject them to the control of their pursuer, should afford the basis of actions against others for intercepting and killing them, it would prove a fertile source of quarrels and litigation. However uncourteous or unkind the conduct of Pierson towards Post, in this instance, may have been, yet this act was productive of no injury or damage for which a legal remedy can he applied. We are of the opinion the judgment below was erroneous, and ought to be reversed. Judgment of reversal. DARLINGTON, P. P. 30 ; Ferguson v. Miller, 1 Cow. 243 ; 2 Kent, 349 ; Armory v. Flynn, 10 John. 102 ; I Sch. P. P. 149 ; Faber v. Gennie, 1 Sprague, 315 ; II Green. Evi. 620 ; Fennings v. Granville, 1 Taunt. Bester v. Newkirk, 20 John. 75 ; 241 ; Brinckerhoff v. Starkins, 11 Barb. Young v. Hickins, 1 Dav. & Mer. 248 ; 592 ; Decker t>. Fisher, 4 Barb. 592 ; Hogarth v. Jackson, 1 Moody & Gillett v. Mason, 7 John. 16 ; Malkins, 58. IN PERSONALTY. 23 2. Animals ferce natwrce must be kept, as well as cap- tured, in order to retain property in them. Gross v. Kilts. Supreme Court of New York. 15 Wend. 550. Where the owner of a swarm of wild bees, which he has reclaimed, pursues them in their flight away from his hive and keeps them in sight till they light upon a tree on the land of another, and then marks the tree : held, that he kept them sufficiently within his control to preserve his qualified property in them. Nelson, J. Animals ferce naturae, when reclaimed by the art and power of man, are the subject of a qualified property ; if they return to t their natural liberty and wildness without the animus revertendi, it ceases. During the existence of the quali- fied property it is under the protection of the law the same as any other property, and every invasion of it is redressed in the same manner. Bees are ferce naturce, but when hived and re- claimed a person may have a qualified property in them by the law of nature, as well as the civil law. Occupation, that is, hiving or enclosing them, gives property in them. They are now a common species of property and an article of trade, and the wildness of their nature by experience and practice has be- come essentially subjected to the art and power of man. An unreclaimed swarm, like all other wild animals, belongs to the first occupant — in other words, to the person who first hives them ; but if a swarm fly from the hive of another, his qualified, property continues so long as he can keep them in sight and. possesses the power to pursue them. Under these circum- stances no one else is entitled to take them : 2 Black. Comm. . 393 ; 2 Kent's Comm. 394. The question here is not between the owner of the soil upon which the tree stood that included the swarm and the owner c 24 ILLUSTRATIVE CASES of the bees ; as to him, the owner of the bees would Dot be able to regain his property or the fruits of it without being guilty of trespass. But it by no means follows from this pre- dicament that the right to the enjoyment of the property is lost ; that the bees therefore become again ferae naturae, and belong to the first occupant. If a domestic or tame animal of one person should stray to the enclosure of another, the owner could not follow and retake it without being liable for a trespass. The absolute right of property, notwithstanding, would still continue in him. Of this there can be no doubt. So in respect to the qualified property in the bees. If it con- tinued in the owner after they hived themselves and abode in the hollow tree, as this qualified interest is under the same pro- tection of law as if absolute, the like remedy existed in case of an invasion of it. It cannot, I think, be doubted that if the property. in the swarm continues while within sight of the owner — in other words, while he can distinguish and identify it in the air — that it equally belongs to him if it settles upon a branch or in the trunk of a tree, and remains there under his observation and charge. If a stranger has no right to take the swarm in the former case, and of which there seems no ques- tion, he ought not to be permitted to take it in the latter, when it is more confined and within the control of the occupant. It is said the owner of the soil is entitled to the tree and all within it. This may be true, so far as respects an unreclaimed swarm. While it remains there in that condition, it may, like birds or other game {game laws out of the question), belong to the owner or occupant of the forest, ratione soli, according to the law of nature, where prior occupancy alone gave right, the individual who first hived the swarm would be entitled to the property "in it ; but since the institution of civil society and the regulation of the right of property by its positive laws, the forest as well as the cultivated field belongs exclusively to the owner, who has acquired a title to it under those laws. The natural right to the enjoyment of the sport of hunting and fowling wherever animals ferce naturae 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 char- acter, Henee no one has a right to invade the enclosure of IN PERSONALTY. 25 another for this purpose. He would be a trespasser, and as such liable for the game taken. An exception may exist in the case of noxious animals, destructive in their nature. Mr. Justice Blackstone says : If a man starts game in another's private grounds and kills it there, the property belongs to him in whose ground it is killed, because it was started there, the property arising ratione soli: 2 Black. Comm. 419. But if animals ferce naturae that have been reclaimed, and a qualified property obtained in them, escape into the private grounds of another in a way that does not restore them to their natural condition, a different rule obviously applies. They are then not exposed to become the property of the first occupant. The right of the owner continues, and though he cannot pursue and take them without being liable for a trespass, still this diffi- culty should not operate as an abandonment of the animals to their former liberty. The rights of both parties should be re- garded and reconciled as far as is consistent with a reasonable protection of each. The cases of Heermance v. Vemay, 6 Johns. R. 5, and Blake v. Jerome, 14 Id. 406, are authorities for saying, if any were wanted, that the inability of the owner of a personal chattel to retake it while on the premises of another without committing a trespass, does not impair his legal interest in the property. It only embarrasses the use or enjoyment of it. The owner of the soil, therefore, acquiring no right to the property in the bees, the defendant below can- not protect himself by showing it out of the plaintiff in that way. It still continues in him, and draws after it the posses- sion sufficient to maintain this action against a third person, who invades it by virtue of no other claim than that derived from the law of nature. This case is distinguishable from the cases of Grillet v. Mason, 7 Johns. R. 16, and Ferguson v. Miller, 1 Cowen, 243. The first presented a question between the finder and a person interested in the soil ; the other between two per- sons, each claiming as the first finder. The plaintiff in the last case, though the first finder, had not acquired a qualified property in the swarm according to the law of prior occupancy. The defendant had. Besides, the swarm being unreclaimed from their natural liberty while in the tree, belonged to the 4 26 ILLUSTRATIVE CASES owner of the soil ratione soli. For these reasons I am of opin- ion that the judgment of the court below should be affirmed. Judgment affirmed. DARLINGTON, P. P. p. 30 ; 2 Kent's Com. 394 ; 2 Blackstone, 293 ; 1 Schouler, P. P. \ 48. 3. But one may retain his property in animals ferm naturae, though they wander from his immediate control, if they have the habit of returning to him animus revertendi. Manning v. Mitcherson. Supreme Court of Georgia. 69 Georgia, 447. Crawford, J. The questions submitted for our adjudication by this record, and insisted on by counsel for the plaintiff in error, are substantially: — (1) "Whether such a property right can exist in a canary bird as to make it the subject-matter of a possessory warrant. (2) "Whether, even if this be so, such warrant will lie against the husband to recover property in the possession, custody, or control of the wife. (3) Whether the notary public, and ex-officio justice of the peace, did not commit error in his decision in this case, in giving judgment in favor of the plaintiff in the warrant, against the weight of evidence submitted on the trial. 1. The law of Georgia is, that to have property in animals, birds, and fishes which are wild by nature, one must have them within his actual possession, custody, or control, and this he may do by taming, domesticating, or confining them. The answer of the ex-officio justice of the peace in this case, the same being a certiorari and no traverse thereof, must be IN PERSONALTY. 27 taken as true, and it says, that according to the testimony of all the witnesses the bird in controversy was shown to have been tamed. It was also testified that it had been in the pos- session of the plaintiff in the warrant about two years; that it knew its name, and when called by its owner would answer the call ; that it had left its cage on one occasion, and, after having been gone a day or two, returned ; that on the 27th day of December, before the preceding new year's day, it was missing from its cage, and on the latter day it was received and taken possession of by the defendant, who had kept it in confinement ever since. Under this evidence, there does not seem to be any question of sufficient possession and dominion over this bird to create a property right in the plaintiff. To say that if one has a canary bird, mocking-bird, parrot, or any other bird so kept, and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. To hold that the travelling organist with his attendant monkey, if it should slip its collar, and go at will out of his immediate possession and control, and be captured by another person, that he would be the true owner and the organist lose all claim to it, is hardly to be expected; or that the wild animals of a menagerie, should they escape from their owner's immediate possession, would belong to the first person who should subject them to his dominion. 2. Upon the second question presented for our consideration, we hold that a possessory warrant will lie against any one who re- ceives or takes possession of a personal chattel under a pretended claim, and without lawful warrant or authority. To apply this principle to the facts of this case, as they are set out in the answer of the justice, we must say that, though the wife may possibly have had the personal care of the bird in question, yet it is clear that it was in the power, custody, and control of the husband, and was undoubtedly surrendered to the officer by his authority and direction. So that, really, no question can be legally made on the point here raised, as the possession of the wife was but the possession of the husband. 28 ILLUSTRATIVE CASES 3. That the justice gave judgment in favor of the plaintiff in the warrant against the weight of evidence, we do not admit. The testimony for the plaintiff was positive and convincing, and the testimony of Robt. Gignilliat, Esq., given in his place as an attorney, without being sworn, shows that the refusal to return the bird, as stated to him by the defendant himself, was owing more to the offensive manner in which it was demanded, than to any claim of right which he set up by ownership or possession. This statement was not denied or controverted by the defendant, though he was a witness in the case. The weight of the testi- mony appears to be clearly with the plaintiff. Under the law and the testimony there was no error in dismissing the certiorari. Judgment affirmed. See 2 Blackstone, 392 ; Oyster cases : Decker v. Fisher, 2 Kent, 248 ; 4 Barb. 592 ; 1 Schouler, P. P., p. 49 ; Brinckerhoff v. Starkins, 11 Barb. Armory v. Flynn, 10 John. 105 ; 248 ; Canary bird : Manning v. Mitch- Lowndes v. Dickerson, 34 Barb, erson, 47 Amer. Bepts. 464 ; 586 ; Buffalo : TJlery v. Jones, 81 Bl. 403 ; State v. Taylor, 27 N. J. L. 117. 20 Mo. 457 ; 4. A person may acquire a qualified property in • ani- mals ferce naturce by reason of their being upon his land — ratione soli. Gillett v. Mason. Supreme Court of ISTew York. 7 Johnson, 16. "Where one finds a swarm of bees on the land of another, and marks the tree where they are with the initials of his name : held, that he can- not hold them as against the owner of the land where the tree stands. Per Curiam. Bees are considered by Judge Blackstone (2 Comm. 392) as ferce naturce, but when hived and reclaimed a IN PERSONALTY. 29 qualified property may be acquired in them. Occupation of them, according to Bracton, that is, hiving or enclosing them, gives the property in bees. In the present case, it appears the bees were not hived before they were discovered by the defend- ant in error, and the only act he did was to mark the tree. The land 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 the finder, especially in this case, against the plaintiff in error, who, as one of the children of Timothy Gillet (who does not ap- pear to have made a will), must be considered as one of the heirs, and, as such, a tenant in common in the land. Blackstone (vol. 2, p. 393) inclines to the opinion that under the Charter of the Forest, allowing every freeman 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 an ownership, ratione soli. According to the civil law (Just. Inst, lib. 2, tit. 1, s. 14), bees which swarm upon a tree are not private property until actually hived ; and he who first encloses them in a hive becomes their proprietor. Judgment reversed. DARLINGTON", P. P. 31 ; Adams v. Burton, 43 Vt. 36 ; 2 Blackstone, 393 ; Idol v. Johns, 2 Dev. Law (N. C.) ISch. P. P., §49, note; 162. Ferguson v. Miller, 1 Cow. 243 ; - But see Wallis v. Mease, 3 Binn. (Pa.) 546. A trespasser acquires no property in animals ferm naturae, which he kills on the land of another. Bigg v. Earle of Lonsdale, 1 Hurl. Blade v. Higgs, 13 C. B. , n. s. 844 ; & N. 923 ; Blade v. Higgs, 11 H. L. C. 621. 5. A person may have a qualified property in animals ferce naturae, in two other instances: — 1. Batione impotentice, as where animals have their 30 ILLUSTRATIVE CASES young upon his land and they cannot escape by reason of their weakness. 2. Where one person has the .exclusive privilege of hunting, fishing, and killing animals — propter privile- gium. The Case of the Swans. Court of King's Bench. 4 Coke's Reports, 82. This case covers a wide range of subjects within the topic under consideration, and the following is but a brief abstract thereof, bearing particularly upon animals ferce naturce: 1st, ratione impotentice ; and, 2d, propter privilegium " There are three manners of rights of property : Property absolute, property qualified, and property possessory. A man hath not absolute property in anything which is ferce natures, but in those which are domitce naturce. Property qualified and possessory a man ma}' have in those which are ferce naturce, and to such property a man may attain by two ways : by indus- try, or ratione impotentice et loci; by industry as by taking them, or by making them mansueta .... but in those which are ferce naturce, and by industry are made tame, a man hath but a qualified property in them, soil, so long as they remain tame, for if they do attain to their natural liberty, and have not animum revertendi, the property is lost : ratione impotentice et loci, as if a man has young shovelers or goshawks or the like, which are ferce naturce, and they build in my land, I have posses- sory property in them, for if one takes them when they cannot fly, the owner of the soil shall have an action of trespass. . . . But when a man hath savage beasts, ratione privilegii, as by reason of a park, warren, etc., he hath not any property in the deer, or conies, or pheasants, or partridges .... he hath no property in them, but they do belong to him ratione privilegii for his game and pleasure, so long as they remain in the privileged place ; for, if the owner of the park dies, his heirs shall have IN PERSONALTY. 31 them, and not his executors or administrators, because without them the park, which is an inheritance, is not complete." DAELINGTON, P. P. 30 ; Sutton v. Moody, 5 Mod. 376 ; 2 Blk. 394 ; 2 Sch. P. P. 49 ; Wms. Blade v. Higgs, 11 H. L. C. 621. Ex., Pt. 2, Book 2, Ch. 2, 21 ; The qualified property which one has in animals ferae, natures will be protected by the law, and civil ac- tions will lie to enforce or maintain such property rights. Ghen v. Rich. U. S. D. C, Dist. of Mass., April, 1881. 8 Fed. Bep. 159. Where a person who first captures an animal ferce naturae (a whale), and does all to appropriate him which the circumstances of the case will permit : held, that he thereby acquires property therein, and for the con- version of which an action at law will lie. Nelson, D. J. This is a libel to recover the value of a fin- back whale. The libellant lives in Provincetown, and the re- spondent in Wellfleet. The facts, as they appeared at the hearing, are as follows : — In the early spring months the easterly part of Massachusetts Bay is frequented by the species of whale known as the fin-back whale. Fishermen from Provincetown pursue them in open boats from the shore, and shoot them with bomb-lances fired from guns made expressly for the purpose. When killed they sink at once to the bottom, but in the course of from one to three days they rise and float on the surface. Some of them are picked up by vessels and towed into Provincetown. Some float ashore at high water and are left stranded on the beach as the tide recedes. Others float out to sea and are never recov- ered. The person who happens to find them on the beach usually sends word to Provincetown, and the owner comes to 32 ILLUSTRATIVE CASES the spot and removes the blubber. The finder usually receives a small salvage for his services. Try-works are established in Provincetown for trying out the oil. The business is of consid- erable extent, but, since it requires skill and experience, as well as some outlay of capital, and is attended with great exposure and hardship, few persons engage in it. The average yield of oil is about 20 barrels to a whale. It swims with great swift- ness, and for that reason cannot be taken by the harpoon and line. Each boat's crew engaged in the business has its peculiar mark or device on its lances, and in this way it is known by whom a whale is killed. The usage on Cape Cod, for many years, has been that the person who kills a whale in the manner and under the circum- stances described, owns it, and this right has never been dis- puted until this case. The libellant has been engaged in this business for ten years past. On the morning of April 9, 1880, in Massachusetts Bay, near the end of Cape Cod, he shot and instantly killed witn a bomb-lance the whale in question. It sunk immediately, and on the morning of the 12th was found stranded on the beach in Brewster, within the ebb and flow of the tide, by one Ellis, 17 miles from the spot where it was killed. Instead of sending word to Princeton, as is customary, Ellis advertised the whale for sale at auction, and sold it to the respondent, who shipped off the blubber and tried out the oil. The libellant heard of the finding of the whale on the morning of the 15th, and immediately sent one of his boat's crew to the place and claimed it. Neither the respondent nor Ellis knew the whale had been killed by libellant, but they knew or might have known, if they had wished, that it had been shot and killed with a bomb-lance, by some person engaged in this species of business. The libellant claims title to the whale under this usage. The respondent insists that this usage is invalid. It was decided by Judge Sprague in Taber v. Jenny, 1 Sprague, 315, that when a whale has been killed, and is anchored and left with marks of appropriation, it is the property of the captors ; and if it is afterwards found, still anchored, by another ship, there is no usage or principle of law by which the property of the original IN PERSONALTY. 33 captors is diverted, even though the whale may have dragged from its anchorage. The learned Judge says :— " "When the whale had been killed and taken possession of by the boat of the Hillman (the first taker), it became the property of the owners of that ship, and all was done which was then practicable in order to secure it. They left it anchored, with unequivocal marks of appropriation." In Bartlett v. Budd, 1 Low. 223, the facts were these : The first officer of the libellant's ship killed a whale in the Okhotsk Sea, anchored it, attached a waif to the body, and then left it and went ashore at some distance for the night. The next morning the boats of the respondent's ship found the whale adrift, the anchor not holding, the cable coiled round the body, and no waif or irons attached to it. Judge Lowell held that, as the libellants had killed and taken actual possession of the whale, the ownership vested in them. In his opinion the learned Judge says : — " A whale, being ferce natures, does not become property until - a firm possession has been established by the taker. But when such possession has become firm and complete, the right of property is clear, and has all the characteristics of property." He doubted whether a usage set up, but not proved, by the respondents, that a whale found adrift in the ocean is the prop- erty of the finder, unless the first taker should appear and claim it before it is cut in, would be valid, and remarked that " there would be great difficulty in upholding a custom that should take the property of A. and give it to B., under so very short and uncertain a substitute for the statute of limitations, and one so open to fraud and deceit." Both the cases cited were decided without reference to usage, upon the ground that the property had been acquired by the first taker by actual posses- sion and appropriation. In Swift v. Gifford, 2 Low. 110, Judge Lowell decided that a custom among whalemen in the Arctic seas, that the iron holds the whale, was reasonable and valid. In that case a boat's crew from the respondent's ship pursued and struck a whale in the Arctic Ocean, and the harpoon and the line attached to it remained in the whale, but did not remain fast to the boat.. A boat's crew from the libellant's ship continued the pursuit and. 3 34: ILLUSTRATIVE CASES captured the whale, and the master of the respondent's ship claimed it on the spot. It was held by the learned Judge that the whale belonged to the respondents. It was said by Judge Sprague, in Bourne v. Ashley, an unprinted case, referred to by Judge Lowell in Swift v. Grifford, that the usage for the first iron, whether attached to the boat or not, to hold the whale was fully established ; and he added that, although local usages of a particular port ought not to be allowed to set aside the general maritime law, this objection did not apply to a custom which embraced an entire business, and had been con- curred in for a long time by every one engaged in the trade. In Swift v. G-ifford, Judge Lowell also said : — " The rule of law invoked in this case is one of very limited application. The whale fishery is the only branch of industry of any importance in which it is likely to be much used, and it a usage is found to prevail generally in that business, it will not be open to the objection that it is likely to disturb the general understanding of mankind by the interposition of an arbitrary exception." I see no reason why the usage proved in this case is not as reasonable as that sustained in the cases cited. Its application must necessarily be extremely limited, and can affect but a few persons. It has been recognized and acquiesced in for many years. It requires in the first taker the only act of appropria- tion that is possible in the nature of the case. Unless it is sustained, this branch of industry must necessarily cease, for no person would engage in it if the fruits of his labor could be appropriated by any chance finder. It gives reasonable salvage for securing or reporting the property. That the rule works well in practice is shown by the extent of the industry which has grown up under it, and the general acquiescence of a whole community interested to dispute it. It is by no means clear that without regard to usage the common law would not reach the same result. That seems to be the effect of the decisions i in Taber v. Jenny, and Bartlett v. Budd. If the fisherman does all that it is possible to do to make the animal his own, that would seem to be sufficient. Such a rule might well be applied in the interest of trade, there being no usage or custom to the contrary : Holmes, Com. Law, 217. But, be that as it IN PERSONALTY. 35 may, I hold the usage to be valid, and that the property in the whale was in the libellant. • The rule of damages is the market value of the oil obtained from the whale less the cost of trying it out and preparing it for the market, with interest on the amount so ascertained from the date of conversion. As the question is new and important, and the suit is contested on both sides, more for the purpose of having it settled than for the amount involved, I shall give no costs. Decree for libellant for $71.05, without costs. Whale cases :— Hogarth v. Jackson, 1 Moody A Faber v. Gennie, 1 Sprague, 315 ; Malk. 58 ; Fennings v. Granville, 1 Taunt. See oyster cases, supra. 241; Animals ferce natures reclaimed, suitable for food, and within the custody of their owner, are the subjects of larceny. Commonwealth v. Chace. Supreme Court of Massachusetts, 1829. 9 Pickering, 15. Doves are the subjects of larceny if taken when within the owner's custody, but otherwise if taken when without his custody. Parker, C. J. It is held in all the authorities, that doves are ferce naturce, and as such are not subjects of larceny, except when in the care and custody of the owner ; as when in a dovecot or pigeon-house, or when in the nest before they are able to fly. If, when thus under the care of the owner, they are taken fur- tively, it is larceny. The reason of this principle is, that it is difficult to distin- guish them from other fowl of the same species. They often take a flight and mix in large flocks with the doves of other persons, and are free tenants of the air, except when impelled 36 ILLUSTRATIVE CASES by hunger or habit, or the production or preservation of their young, they seek the shelter prepared for them by the owner. Perhaps, when feeding on the grounds of the proprietor, or resting on his barn or other buildings, if killed by a stranger, the owner may have trespass, and if the purpose be to consume them as food, and they are killed or caught or carried away from the enclosure of the owner, the act would be larceny. Eut in this case there is no evidence of the situation they were in when killed, whether on the flight, a mile from the grounds of the owner, or mingled with the doves of other persons, enjoying their natural liberty. "Without such evidence the act of killing them, though for the purpose of using them as food, is not felonious. Therefore a new trial is granted. DARLINGTON, P. P. p. 31 ; Rex v. Brooks, 4 C. & P. 131 ; 2 Blk. 393 ; Reg. v. Shickle, L. R. 1 C. C. 158 ; 4 Blk. 435 ; Reg. v. Learing, Russ. & Ry. 350 ; 1 Sch. P. P. 2 50 ; Reg. v. Cary, 10 Cox C. C. 23 ; State v. Murphy, 8 Blackf. (Ind.) R eg . „, Cox, 1C.&K. 494 ; 498; Reg. v. Gallears, 2 Cox C. C, Reg. v. Cheafor, 15 Jur. 1065 ; 572. 8. Some American authorities question the English rule, holding that larceny may be committed of animals of a base nature if they have a financial value. State v. House. Supreme Court of North Carolina. 65 N. C. 315. Settle, J. There was an error in quashing the indictment, on the ground that the thing stolen was not the subject of lar- ceny. An otter belongs to the class of animals known as fern naturce, and therefore it was necessary to allege in the indict- IN PERSONALTY. 37 ment that it had been reclaimed or confined, or that it was dead. This is done in the indictment under consideration. It was not suggested that animals ferce natures are not the subject of larceny, provided they are fit for the food of man and are dead or confined, but we apprehend that his Honor acted upon another distinction laid down in the English authorities, to wit : That there is a class of animals which, though they may be reclaimed, are not such of which larceny can be com- mitted, by reason of the baseness of their nature. All of the distinctions as to animals ferce naturae and as to their generous or base natures, which we find in the English books, will not hold good in this country. The English system of game laws seems to have been established more for princely diversion than for use or profit, and is not at all suited to the wants of our enterprising trappers. We take the true criterion to be, the value of the animal, whether for the food of man, for its fur or otherwise. We know that the otter is an animal very valuable for its fur, and we know also that the fur trade is an important one in America, and even in some parts of North Carolina. If we are to be bound absolutely by the English authorities, without regard to their adaptation to this country, we should be obliged to hold that most of the animals so valuable for their fur are not the subject of larceny, on account of the baseness of their nature, while at the same time we should be bound to hold that hawks and falcons, when reclaimed, are the subject of larceny in re- spect of their generous nature and courage. There was error. Let this be certified. Per Curiam. Judgment reversed. DARLINGTON, P. P., p. 31. 1 Schouler, P. P., sec. 50. 38 ILLUSTRATIVE CASES 9. But larceny cannot be committed of animals ferce naturce unless they are reclaimed and also suitable for food. "Warren v. The State. Supreme Court of Iowa. 1 Green, 106. A raccoon is an animal ferce naturce, and being of a base nature in contemplation of law is not the subject of larceny. Greene, J. The plaintiff in error was found guilty in the Court below on an indictment for larceny. A motion was made for a new trial, and overruled. We learn from the bill of ex- ceptions that testimony was adduced on the trial proving that about eighteen or nineteen months after B. S. Wilcox missed a number of traps, a boat-hook, etc., Shook, the prosecuting wit- ness, proceeded with the officer, and a search warrant, to the house of Warren, and after a slight search repaired to a flax stack, five or six rods from the house ; when one Fulk said to the officer that " he was an old miner, and could strike a lode in three licks." Though the ground was covered with snow, Shook showed Fulk where to dig ; and he commenced accord- ingly, and, with the third blow of the mattock, struck the lid of a box, identified as the property of Warren, which contained a portion of the stolen traps. They then went to the prisoner's blacksmith shop, and there found the boat-hook with the handle sawed off on the shop floor, where it had been lying about for several months. It also appears that Shook had been living with Warren, and that they had some difficulty a short time before the prosecution commenced. The Court instructed the jury, though requested to give the contrary charge, that the fact of finding the traps in thf manner described was prima facie evidence that Warren had stolen them. To this instruc- IN PERSONALTY. 39 tion of the Court the plaintiff took exception, and now urges the objection under his first two errors assigned. This charge to the jury was manifestly erroneous. The long space of time which elapsed from the missing to the discovery of the goods, the place, together with the peculiar circum- stances under which they were found, concur in removing the presumption of guilt in the prisoner. Such a presumption is only created when the goods are found in the possession of a person within a short period after the larceny. The lapse of three months after the articles were stolen has been recognized as sufficient to rebut the presumption of guilt in a person in whose possession the goods were found ; but it has been other- wise determined after the expiration of only two months, when connected with evidence of concealment and other suspicious circumstances : 1 Coweu and Hill's Notes, 425, 426, and the references. After the lapse of sufficient time for the goods to change hands, and when they are of a portable nature, it would often be attended with serious oppression and injustice to require a person to account for the possession. Still mope serious would be the consequences of taking a prisoner's guilt for granted after so remote a period, and under the circumstances which are presented in this case. The place where the articles were found, the very suspicious deportment of one or two of those who participated in the find- ing, leave ample room to presume that others may have been more intimately connected with the larceny than the prisoner. In relation to the place, etc., of finding stolen goods, see Cowen and Hill's Notes, 426, 427. By request of counsel, we will briefly notice the other errors assigned. The third avers that the Court erred in overruling the motion for a new trial. As the charge to the jury was so manifestly improper, the motion for a new trial should have been granted. The only other reason assigned for a new trial is that of newly-discovered evidence. This is a matter usually confined to the sound discretion of the district Judge ; because the application is often attended with circumstances which are not made apparent to the appellate Court. The affidavit of the prisoner alone, setting forth the newly-discovered facts, and by 40 ILLUSTRATIVE CASES whom he can prove them, taken in connection with other con- curring appearances, and the applicability of the newly-dis- covered evidence towards affecting a material change in the verdict, has been held sufficient to justify a new trial, without the affidavit of the witness by whom the facts are expected to be proven ; but the requirement of such an affidavit we regard as the safest practice : Bight v. Wills, 7 B. Monroe, 122. Only in cases where the grounds for a new trial may be determined by the established principles of law, or upon facts appearing of record, it is clearly within the province of this Court to revise and correct the proceedings below: Cook v. U. S., ante 56; Brazelton v. Jenkins, Morris, 15. It may be well to observe that even in cases where the ques- tion of a new trial is within the discretion of the district Court, the law contemplates a full hearing and fair trial to all ; and if from any cause, a party having used due diligence, has not been able to present the substantial merits of his case to the jury, a rehearing should be allowed. The verdict is objected to by the fourth assignment of error, because it is for the aggregate value of the articles stolen. In this we can see no error. The fifth error assigned is that part of the property averred to have been stolen, a raccoon, is not the subject of larceny. The principle is well settled that taking from another's pos- session an aminal ferce natures, or of a base nature, in con- templation of law will not render a person liable for larceny, though the right of the owner would be protected by a civil action. As this principle applies by common law to monkeys, bears, foxes, etc., it will evidently apply to coons : 5 M". H. 204. But, for this reason alone, the judgment of the district Court would not be disturbed when the indictment avers the stealing of other articles properly the subject of larceny; and when it appears by the transcript that the nature of the offence could not have been reduced, nor the fine materially lessened, by ex- cluding the objectionable article. The last error assigned is that the proper oath was not ad- ministered to the jury. The transcript of the record states that the jury were sworn the truth to speak on the issue joined, IN PERSONALTY. 41 etc. It is hardly necessary to state that such an oath is not recognized by the statute : See Rev. Stat. 298. The judgment is reversed, and the cause remanded to the district Court of Clinton County for a new trial. Judgment reversed. See Norton v. Ladd, 5 N. H. 203. State v. Kidder, 78 ST. C. 481, 10. DOGS AND CATS. THE DOG. State v, Marriam. Supreme Judicial Court of Maine, 1884. 75 Maine, 562. Danforth, J.: Demurrer to an indictment found under R. S., c. 127, § 1, which provides for killing or wounding "domestic animals." The indictment alleges the killing a dog. There- fore the question involved is, not whether any particular dog or any number of dogs have become so domesticated as to be called domestic animals, but whether as a class they may prop- erly be so called in distinction from that class known in law as ferce natures. If the dog belongs to the latter class, the indict- ment must fail, for the statute does not cover that class. A distinction has been recognized in the law between the two classes from the origin of the common law, from the earliest date of authentic history, when the wealth of individuals was reckoned by the number of their flocks and herds. That by the common law the dog belongs to the wild class of animals is recognized by all the authorities. And in that state he was and is utterly worthless, his flesh even being unfit for food, so that legally he was said to have no intrinsic value, and " though a man may have a bare property therein, and maintain a civil action for the loss of them, yet they are not of such estimation as that the stealing them amounts to lar- ceny :" 4 Bl. Com. 236 ; 2 Bishop's Crim. Law, § 773. It is 42 ILLUSTRATIVE CASES true that dogs have extensively become domesticated, so that it is usual and perhaps not an improper use of language to call them " domestic animals," but as they still retain in a great measure their natural propensities, they may more properly be called domestic animals with vicious habits. They still keep their wild characteristics which ally them to the class of ani- mals feres natures ; so much so, that in their domestic state they furnish no support to the family, add nothing in a legal sense to the wealth of the community, are not inventoried as property of a debtor or dead man's estate, or as liable to tax- ation unless under a special provision of the statute ; but when kept it is for pleasure, or, if any usefulness is obtained from them, it is founded upon this very ferocity natural to them by which they are made to serve as a watch or for hunting. From his greater attachment to his master in the domestic state, from which arises a well-founded expectation of his re- turn when lost, the law gives the owner the right of reclama- tion ; but in all other respects the owner has only that qualified property in him which he may have in wild animals generally. These continuing instincts, from which arises the danger that he may at any time relapse iuto his savage state, have made it necessary in all States to have a code of laws peculiarly appli- cable to the dog, and not applicable to domestic animals ; not for the protection of his life, but rather for the protection of the community from his ferocity : Smith v. Forehand, 100 Mass. 140 ; 20 Albany Law Journal, 6. Under these laws the clog is recognized as property so far as to afford a civil remedy for an injury, but seldom if ever any other. In many cases it is made lawful for a man to kill the dog of another, as when he be- comes a public nuisance: 1 Bishop Crim. Law, § 1080, and note ; and in various other instances as provided in our own State : R. S. c. 30. Thus it will be perceived that originally the dog belonged to the class of animals ferce. natures, and that up to the present time the law has treated him as continuing in that class, and has never recognized him as belonging to the domestic class. The two statutes, c. 30, R. S., and c. 127, the first relating to dogs and the latter to domestic animals, are so different that they cannot be reconciled. If a person is liable to be convicted IN PERSONALTY. 43 for killing a dog under c. 127, he may be punished for what he has a legal right to do under c. 30. But, as dogs have never been recognized in the law as be- longing to the class denominated " domestic animals," and as domestic animals alone are mentioned, it would be contrary to all rules of construction to extend the meaning of a statute so highly penal beyond its exact terms. Exceptions and demurrer sustained. Dissenting Opinion. Appleton, C. J. : This is an indictment against the defendant for malicious mischief, under the provisions of R. S. c. 127, § 1, which provides that " whoever wilfully or maliciously kills, wounds, maims, disfigures, or poisons any domestic animal . . shall be punished by imprisonment not more than four years, or by fine not exceeding five hundred dollars." It will be per- ceived that the largest discretion is allowed in regard to the punishment to be inflicted or the fine to be imposed. The indictment alleges that the defendant on July 24, 1882, at Waldoboro', in the county of Lincoln, " with force and arms one Newfoundland dog, called ' Rich,' of the value of one hundred dollars of the goods and chattels of John D. Miller, then and there in the inclosure and immediate care of his mas- ter being, did then and there wilfully and maliciously kill and destroy, against the peace of said State and contrary to the forms of the statute in such case made and provided." To this the defendant has demurred, thereby admitting the truth of the allegations contained in the indictment. The main question is whether a dog is a " domestic animal," for, if he be, the defendant is guilty by his own admission and should be held criminally liable. A dog is the subject of ownership. Trespass will lie for an injury to him. Trover is maintainable for his conversion. Replevin will restore him to the possession of his master. He may be bought and sold. An action may be had for his price. The owner has all the remedies for the vindication of his rights of property in this animal as in any other species of personal property he may possess. 44 ILLUSTRATIVE CASES He is a domestic animal. From the time of the pyramids to the present day, from the frozen pole to the torrid zone, wherever man has been there has been his dog. Cuvier has asserted that the dog was perhaps necessary for the establish- ment of civil society, and that a little reflection will convince us that barbarous nations owe much of their civilization above the brute to the possession of the dog. He is the friend and companion of his master — accompanying him in his walks, his servant, aiding him in his hunting, the playmate of his chil- dren — an inmate of his house, protecting it against all assail- ants. It may be said that he was "ferce natures ," but all animals, naturalists say, were originally '■'■ferce naturce," but have been reclaimed by man, as horses, sheep, or cattle; but, however tamed, they have never, like the dog, became domesticated in the home, under the roof, and by the fireside of their master. The dog was a part of the agricultural establishment of the Romans, and is treated of as such. There were the canes villatici to guard the villa of the Roman senator, the canes venatici accompanying him in his hunting expeditions, and the canes pastorales by whom his flocks were guarded. Virgil in his Georgics has given directions as to their management and education. To-day in many countries they are used for draught, as iu France and Holland, and everywhere regarded as possess- ing value and as the subject-matter of traffic. The language of the statute is most general, " any domestic animal." The words are not technical or words of art. They are the words of the common people and should be construed as such. Nothing would more astonish the people for whom the laws were made than to learn that a bull or a hog was a domestic animal, and that a dog was not. The lexicographers define a dog as a " domestic animal." "A well-known domestic animal" — Johnson's Dictionary. "A well- known domestic animal of the genus canis" — Worcester's Dic- tionary. In Bouvier's Law Dictionary he is defined as "A well- known domestic animal." Olney, the poet, says of them : — " They are honest creatures, And ne'er betray their masters, never fawn On any they love not." IN PERSONALTY. 45 So, in the encyclopedias he is cants familiaris, and called a domes- tic animal ; so that in the ordinary use of language he is within the clear provisions of the statute under which this indictment was found. "The domestic dog has occasioned many legal disputes, and the presumption of the common law of England is that he is tame :" Campbell on Negligence, § 27. By R. S. c. 6, § 5, a tax is imposed on dogs. This is a dis- tinct and statutory recognition of their being property and having value, and that the owner has the same rights to then- protection that he has for anything else he may own. In New York dogs were taxed, and this was held to be a statutory recognition of them as property, and that they were the subjects of larceny. In The People v. Maloney, 1 Park (N. Y) Cr. 598, the Court says that if there was no statute on the subject, they should feel bound by the rules of the common law ; but " the re- vised statutes are inconsistent with the common law rule. By them dogs are so far regarded as property as to be, in certain cases, the subject of taxation. The owner is made liahle for the acts of his dog, thus recognizing that the dog has an owner and consequently that the thing owned is property. For every civil purpose, not only by statute, but by the decisions of Courts, a dog is regarded as property." "All of the distinctions as to animals ferce naturae" observes Settle, J, " as to their generous and base natures, which we find in the English books, will not hold good in this country .... We take the true criterion to be the value of the animal, whether for the food of man, for its fur,or otherwise." In the present case the Newfoundland dog " Rich," of the value of one hundred dollars, was " in the inelosure and imme- diate care of his master." He was domesticated. Whether the property of the master was originally of a qualified nature or not, is immaterial. The dog was under his dominion and control. " While this qualified property con- tinues, it is as much under the protection of law as any other property, and every invasion of it is redressed in the same manner :" 2 Kent's Com. 349. A dog being a " domestic animal" and property, an indict- ment is maintainable under R. S. c. 127, § 1, for his malicious destruction. When the statute made malicious mischief in- 46 ILLUSTRATIVE CASES dictable, it was held that a dog was the subject of absolute property, and the killing of one under the Act prohibiting malicious mischief was an indictable offence : State v. Sumner, 2 Porter (Ind.), 377. There is such property in dogs as to sus- tain an indictment for malicious mischief: State v. Latham, 13 Iredell, 33. In State v. McDuffee, 34 K H. 523, which was like this, for maliciously shooting a dog, Fowler, J., says : " We can see no reason why the property of its owner in a valuable dog is not quite as deserving of protection against the wilful and malicious injury of the reckless and malignant as property in fruit, shade, or ornamental trees, whether standing in the garden or yard of their owner or in a public street, or any other species of personal property." Dogs have been in- cluded under " Property," and their malicious destruction has been held indictable : 2 Wharton's Cr. Law, 1082. A fortiori is it so, when the owner is subject to taxation for his dog. It is objected that the indictment does not describe the dog as " a domestic animal." But that is not required, if he be one, any more than it would be to say that a bull, a ram, or a sow is a domestic animal. When the statute made it indictable " maliciously" to wound, kill, etc., any horse, cattle, or other " domestic beast," an indictment for wounding a hog without averring that it was a " domestic beast" was held on the English authorities to be good: The State v. Enslow, 10 Iowa, 115. If the Court will take cognizance that a hog or a bull is a domestic animal or beast without its averment in an indictment, much more will they that the dog is such animal. Reliance is placed on E,. S. c. 30, §§ 2, 3, and 4, which impose certain liabilities on the owners of dogs. But these provisions, instead of sus- taining, negative the defence. They imply ownership and lia- * bility on the part of the owner. They assume the relationship of the household. They recognize the domesticity of the dog — as having an owner or keeper, and of minors and servants as owners and keepers, and make the parent, guardian, master, or mistress of such minor or servant responsible for the damages done by the dog so owned. The dog appertains to the house- hold of which the master or mistress is made liable for his misdoings. t The owner or keeper thus made responsible for the IN PERSONALTY. 47 misdoings of his taxable dog or that of his children should not be left without legal protection when this property is wilfully and maliciously destroyed. It is true that by § 2 any one may kill a dog under certain conditions therein set forth. But the very section impliedly negatives the right to kill except only when those conditions exist. By its provisions " any person may lawfully kill a dog that assaults him or any other person when peaceably walking or riding," etc., but it gives no general right to kill dogs. The killing is only lawfully done when the person killing is peace- ably walking or riding, etc., and not otherwise. It is said that " if a person is liable to be convicted for kill- ing a dog under c. 127, he may be punished for what he has a legal right to under c. 30." Not so. He cannot be punished under c. 127 if the killing was justified under the provisions of c. 30. The statutes are perfectly consistent. But it is argued that the indictment should negative the authority to kill in the cases mentioned in § 2. Such is not the law. The indictment follows the statute. It sets forth clearly an offence. If committed, it is for the accused to establish a justification. When the enacting clause of a penal statute describes the offence with certain exceptions, it is necessary to state in the indictment all the circumstances which constitute the offence and to negative the exceptions : State v. Keen, 34 Maine, 501. But this principle is not applicable here. It is to be remarked that the statute, c. 200, of the laws of 1877, requiring the licensing and registration of dogs, and that they should wear a collar round the neck with the owner's name thereon, was repealed by c. 72 of the laws of 1878. If it would have been necessary, had the first named statute been in force, to have set forth in the indictment, as in State v. Mc- Duffee, 34 K". H. 527, the facts of such license and registration, which we think it was not, the statute being repealed, those allegations would no longer be required. The decisions cited in support of the defence do not apply. In Blair v. Forehand, 100 Mass. 137, and in other cases in Massachusetts, the killing of the dogs was justified under the police laws of the State authorizing the killing of dogs not 48 ILLUSTRATIVE CASES licensed nor having a collar. But there are no such statutes in this State ; hence their utter want of applicability. Exceptions overruled. DARLINGTON, P. P. 31 ; Dodson v. Mack, 4 Dev. & Bat. 4 Blackstone, 235 ; 146 ; 2 Roscoe on Criminal Evidence, Perry v. Phillips, 10 Iredell. 257 ; 528 ; State v. McDuffe, 34 N. H. 523 ; 2 Russell on Crimes, 3C8. Destruction of, under police Not the subject of larceny at com- power, mon law. Blair v. Foreland, 100 Mass. 136 ; Beg. v. Robinson, Bell's C. C. 34 ; Carter v. Dow, 16 Wis. 298 ; Lindly v. Bear, 8 S. & R. 571. Mitchell v. Williams, 27 Ind. 63 ; Faribault v. Wilson, 34 Minn. Civil actions do lie for injuries 254 ; thereto. Mullaly v. State, 86 N. Y. 365. Parker t>. Mise, 27 Ala, 480 ; Woolf v. Chalker, 31 Conn. 121 ; Dogs made property within the Whealon v. Harris, 4 Sneed. 456 ; purview of the criminal code. G. L. Minn. 1885, Ch. 177. THE CAT. Whittingham v. Ideson. 8 Upper Canada L. J. 14. Lonsdale, J. : This is an action brought by the plaintiff to recover damages for the loss of his cat, killed by defendant, a gamekeeper. The cat was intentionally killed by the defendant, and at the time it was killed was off the premises of the de- fendant about 200 yards from his residence. As regards the facts there is no dispute ; but it was objected at the trial that a person can have no property in a cat, or, at all events, only a qualified property so long as it remains in his actual pos- session ; and that the cat in question, at the time it was killed, being off the premises of the plaintiff, he had no property in it at that time, and therefore is precluded from recovering damages for its destruction. As regards the latter objection, taking eats, as- some authorities hold and as was argued by the defendant's attorney, to belong to the class of animals ferce naturce, yet, as they are reclaimed animals, there can be no IS PERSONALTY. 49 pretence for saying that, because the cat in question had wan- dered 200 yards from the plaintiff's house (being in the habit, as was stated in evidence, of returning home daily), it had, by so doing, reverted to its wild state, and thereby divested the plaintiff of any right of property he might otherwise have had in it ; it is therefore unnecessary to consider that objection further. But whether Jercs, natures, or, as other authorities consider them, domiice natures, the point to be decided is, whether cats being, as well as dogs and certain other animals,, what the law terms, of a base nature, by reason of their not being fit for the food of man, are or are not the subjects of property. For if they are, there is no doubt that trespass will lie for killing them, since damages may be recovered in that form of action for any injury of a forcible kind done to any- thing whatever in which a man has property. At common law, no animal, with one or two exceptions, such as horses and other beasts of draught, swans, because they a/e royal birds, hawks and falcons, "on account of their noble and generous, nature and courage and as serving ob vital solatium of princes and noble and generous persons, and as making them fitted for great employments," is the subject of theft, whether domitos natures or J "era natures, unless it be fit for food. But it does not follow from this that there can be no property in animals which are not fit for food, and that they are not the subject of civil reme- dies. The reason given by Sir William Russell in his Treatise on Crimes and Misdemeanors why such animals have- been held not to be the subjects of theft is" that creatures of this kind, for the most part wild in their nature, and not serving when re- claimed for food, but only for pleasure, ought not, however the owner may value them, to be so highly regarded by the law that for their sakes a man should die." This, no doubt, is the true reason why, in a simple state of society, and when all thefts above the value of a shilling were punished with death, dogs, cats, ferrets, and other like animals were excluded from the law of larceny, and not because a person could have no prop- erty in them. But what say the authorities on the point? So far as I know, it has never been the subject of a judicial decision in any of the courts at Westminster. The only sources, therefore, to which we can have recourse 4 50 ILLUSTRATIVE CASES for information are the text-writers of authority ; and the only one who supports the view urged for the defendant at the trial is Mr. Chitty in his work on the Practice of Law. He there lays it down that " Trespass in general lies for taking any ani- mal or hird out of the actual possession of a person who has secured the same; but no action lies for enticing from the premises of the owner, and afterwards killing or injuring, a cat, which is not considered of any value in law." He quotes no authority for this statement, and, so far as I have been able to ascertain, it is wholly unsupported by any. The reason he gives why no action will lie for enticing a cat from the premises of its owner and then killing it is, that it is not considered of any value in law ; but if this be so, one does not see why it should be actionable to take a cat out of the actual possession of a per- son, since the cat must be equally valueless in the one case as in the other. Perhaps, however, by " out of the actual pos- session" he means from off the premises, or out of the manual possession of the owner, and that in those cases the action is really for the trespass against his premises or person, and not for the taking of the cat. If it were not that he gives as a reason why an action will not lie, that a cat is of no value in law, one might infer that he intended that as soon as a cat leaves its owner's premises it ceases to.be his property. And this might be good law if cats were not reclaimed animals ; but this, at all events, those authorities who class cats amongst animals ferce naturae, allow them to be, so that they cannot re- gain their natural liberty so long as they have animum rever- tendi, of which the mere fact of their straying from the owner's premises is no evidence to the contrary. Tbis reason given, therefore, by Mr. Chitty for the law as he states it, is not altogether intelligible ; at all events it is not clearly expressed. On the other hand, Blackstone, J., in his Commentaries, after remarking that it is not felony at common law to steal such animals ferce naturce though reclaimed, as " are only kept for pleasure, curiosity, or whim, as dogs, bears, cats, apes, parrots, and singing-birds, because their value is not intrinsic, but depending only on the caprice of the owner," adds, but " it is such an invasion of property as may amount to a civil injury, and be redressed by a civil action." So also in another passage IN PERSONALTY. 51 he says : " As to those animals which do not serve for food, and which, therefore, the law holds , to have no intrinsic value, as dogs of all sorts, and other creatures kept for whim or plea- sure, though a man may have a bare property therein, and maintain a civil action for the loss of them, yet they are not of such estimation, as that the crime of stealing them amounts to larceny." It is clear, therefore, that it was the opinion of Blackstone, J., that there may be a property in cats. In Bacon's Abridgment of the Law it is also laid down that " an action of trespass lies for taking or killing a dog ; because as a dog is a tame animal, there may as well be a property therein as in any other animal." This, though dog only is mentioned, is equally an authority for a cat being property ; for cats and dogs are always treated as belonging, in law, to the same class of animals, and are held not to be subjects of larceny for one and the same reason. But in addition to this passage there is another, in the same author, which clearly in- cludes cats. It is there said, " If a beast or bird which is ferce natural have been reclaimed, this action (trespass) lies for the taking or killing thereof, because there is a property in the beast or bird." Toller in his Law of Executors also says: " Since the executor's interest is co-extensive with that vested in the testator, the property in all his animals, however minute in point of value, shall go to the executor, as house-dogs, ferrets, and the like, or although they were kept only for pleasure, curiosity, or whim, as lap-dogs, squirrels, parrots, and singing- birds." The description in this passage of the animals which will go to the executor is almost in the words of Blackstone, J., which I have quoted. It is true that it does not make special mention of cats ; but there cannot be a doubt they were intended to be included under the expression " and the like." Lastly, the Criminal Law Commissioners, one of whom was the present Wightman, J., and two others, the late Mr. Starkie and the late Mr. Amos, both very learned lawyers, and both of them Judges of county courts, and Downing, Professor of Law at Cambridge, in their first report in observing upon the reason why animals ferce nalurce, which are not fit for food, are not the subjects of larceny, although reclaimed, say : " It would seem that the rule upon this subject arose from the circumstance that 52 ILLUSTRATIVE CASES the animals above specified, viz. : bears, foxes, apes, monkeys, pole-cats, cats, and dogs, etc., being unfit for food, were not formerly marketable and of a determinate value. But they are all now the subject of a civil remedy for property. With this great weight of authority against Mr. Chitty's single dictum, I have no hesitation in giving it as my opinion that a person may have a property in a cat, and, therefore, that an action will lie to recover damages for killing it. There may be cir- cumstances under which it would be justifiable to kill a cat; but it is not justifiable to do so merely because it is a trespasser, even though after game. These facts alone were not sufficient, in my opinion, to justify the defendant in killing it. As con- nected with the question of property in cats, I may mention that cats were looked upon by our ancestors, the ancient Britons, as creatures of intrinsic value, and the killing or even stealing of them a grievous crime, and subjected the offender to a fine. And if the cat belonged to the king's household, and was kept for the purpose of destroying the rats or mice in the royal granary, it was protected by the following curious law : " If any one shall steal or kill a cat, being the guardian of the king's granary, let the cat be hung up by the tip of its tail, with its head touching the floor, and let grains of wheat be poured upon it until the extremity of its tail be covered with the wheat." As much wheat as would be required for this purpose was the measure of the forfeiture to which the offender was liable. Being of opinion that this action is properly brought, I have next to consider whether the amount of damages claimed, £2, is warranted by the facts proved in evidence. In actions of trespass, unattended by circumstances of aggravation, the proper measure of damages, where any article has been de- stroyed, is the market value of the article so destroyed ; but in the case of an ordinary domestic cat, like the one to which the present action refers, it is very difficult to say what is its market value, such cats being seldom sold. There can be no doubt as a general rule, even in the case of good mousers, a few shillings would be considered a sufficient price. Was then the killing of the cat in question attended by any circumstances pf aggravation ? Where the measure of damages is the mere IN PERSONALTY. 53 worth of the thing injured, the injury must be unintentional ; if wilfully occasioned, that would be a circumstance of aggra- vation, and would justify a jury in giving damages beyond the mere money value of the thing injured. In the present case the killing of the cat was intentional ; I must, therefore, give something for damages on that account, beyond the few shil- lings which otherwise I should have considered sufficient ; but as the defendant may have thought, in the present not very clear state of the law on the subject, that he was justified in killing the cat for the protection of his master's game, I should not go so far as I should otherwise have done, or as I should have done if he had killed it to annoy the plaintiff', or to gratify any feeling of spite or revenge. Under all the circumstances I think if I direct judgment to be entered for 10s., I shall do all that the justice of the case requires. Let judgment, there- fore, be entered for that amount. Note. " The Animal Kingdom in Court." 2 Al. Law J. 101. 54 ILLUSTRATIVE CASES LOST PROPERTY. I. The finder of lost property acquires a good title thereto as against everybody but the true owner. Hamakee v. Blanchaed. Supreme Court of Pennsylvania, 1879. 90 Penn. St. 377. Teunkey, J. : It seems to be settled law that the finder of lost property has a valid claim to the same against all the world except the true owner, and generally that the place in which it is found creates no exception to this rule. But property is not lost, in the sense of the rule, if it was intentionally laid on a table, counter, or other place by the owner, who forgot to take it away, and in such case the proprietor of the premises is entitled to retain the custody. Whenever the surrounding evidence that the article was deposited in its place, the finder has no right of possession against the owner of the building: McAvoy v. Medina, 11 Allen (Mass.), 548. An article casually dropped is within the rule. Where one went into a shop, and, as he was leaving, picked up a parcel of bank notes which was lying on the floor, and immediately showed them to the shop- man, it was held that the facts did not warrant the supposition that the notes had been deposited there intentionally, they being manifestly lost by some one ; there were no circumstances in the case to take it out of the general rule of law that the finder of a lost article is entitled to it as against all persons except the real owner : Bridges v. Hawkesworth, 7 Eng. Law & Eq. R. 424. The decision in Mathews v. Itarsell, 1 E. D. Smith (K Y.), 393, is not in conflict with the principle, nor is it an exception. Mrs. Mathews, a domestic in the house of Mrs. Barmore, found IN PERSONALTY. 55 some Texas notes, which she handed to her mistress to keep for her. Mrs. Barmore afterwards intrusted the notes to Harsell for the purpose of ascertaining their value, informing him that she was acting for her servant, for whom she held the notes. Harsell sold them and appropriated the proceeds, whereupon Mrs. Mathews sued him and recovered their value, with interest from date of sale. Such is that case. True, Woodruff, J., says : " I am by no means prepared to hold that a house-servant who finds lost jewels, money, or chattels in the house of his or her employer, acquires any title even to retain possession against the will of the employer. It will tend much more to promote honesty and justice to require servants in such cases to deliver the property so found to the employer, for the benefit of the true owner." To that remark, foreign to the case as understood by himself, he added the antidote : "And yet the Court of Queen's Bench in England have recently decided that the place in which a lost article is found does not form the ground of any exception to the general rule of law that the finder is entitled to it against all persons except the owner." His views of what will promote honesty and justice are entitled to respect, yet many may think Mrs. Barmore's method of treating servants far superior. The assignments of error are to so much of the charge as instructed the jury that, if they found the money in question was lost, the defendant had no right to retain it because found in his hotel, the circumstances raising no presumption that it was lost by a guest, and their verdict ought to be for the plain- tiff. That the money was not voluntarily placed where it was found, but accidentally lost, is settled by the verdict. It is admitted that it was found in the parlor, a public place open to all. There is nothing to indicate whether it was lost by a guest, or a boarder, or one who had called with or without business. The pretence that it was the property of a guest, to whom the defendant would be liable, is not founded on an act or circumstance in evidence. Many authorities were cited in argument, touching the rights, duties, and responsibilities of an inn-keeper in relation to his guests ; these are so well settled as to be uucontroverted. In respect to other persons than guests, an innkeeper is as another man. When money is found in his house, on the floor 56 ILLUSTRATIVE CASES * of a room common to all classes of persons, no presumption of ownership arises. The case is like the finding upon the floor of a shop. The research of counsel failed to discover authority that an innkeeper shall have an article which another finds in a public room of his house, where there is no circum- stance pointing to its loss by a guest. In such case the general rule should prevail. If the finder be an honest woman, who immediately informs her employer, and gives him the article on his false pretence that he knows the owner and will restore it, she is entitled to have it back and hold it till the owner comes. A rule of law ought to apply to all alike. Persons employed in inns will be encouraged to fidelity by protecting them in equality of rights with others. The learned Judge was right in his instructions to the jury. Judgment aflirmed. DARLINGTON, P. P. 35 ; Durfee v. Gaines, 11 E. I. 588 ; 2 Blackstone, 402 ; 1 Id. 296 ; Waterman v. Johnson, 13 Pick. 2 Kent, 356 ; 255 ; Armory v. Delamirie, 1 Strange, Merry v. Green, 7 M. & W. 623 ; 505 ; Tatum v. Sharpless, 6 Phila. 18 ; Bowen v. Sullivan, 62 Ind. 281 ; Lawrence v. Buck, 62 Me. 275; Tancil v. Sleaton, 28 Gratt. 601 ; N. T. & H. E. E. E. Co. v. McAvoy v. Medina, 11 Allen, Hawes, 56 N. Y. 175 ; 548 ; Pinkham v. Gear, 3 N. H. 485. Bridges v. Hawksworth, 7 Eng. L. &Eq. 424; II. The finder of lost property has no legal claim to recompense for finding the same against the owner thereof. Watts v. Ward. Supreme Court of Oregon, 1854. 1 Oregon, 817. Williams, C. J. : The instruction of the Court, it is said, was erroneous. No doctrine is better settled at common law than * IN PERSONALTY. 57 that the finder of lost property is not entitled to a reward for finding it, if there be no promise of such reward by the owner : Brinstead v. Buck, 2 Black. 1117 ; Nicholson v. Chapman, 2 H. Black. 254 ; 2 Kent's Com. 356 ; 5 Met. 352. Some of the authorities maintain that the finder of lost property is entitled to recover from the owner thereof his necessary and reasonable expenses in the finding and restoration of said property : *Amory v. Flinn, 10 Johns. 102; 2 Kent's Com. 356. Other authorities seem to take the ground that the finder has no legal right to anything from the owner for his trouble and ex- pense in finding lost property. Brinstead v. Buck, Nicholson v. Chapman, before cited, appear to stand upon this principle. Chief Justice Eyre, speaking upon this subject in the latter case, says: "Perhaps it is better for the public that these voluntary acts of benevolence from one man to another, which are charities and moral duties, but not legal duties, should de- pend altogether for their reward upon the moral duty of grati- tude." Chief Justice Shaw, in "Wentworth v. Day, 5 Met. 352, says that " the finder of lost property on land has no right of salvage at common law." Where one person gratuitously performs an act of kindness for another, the law, as a general rule, does not recognize the right to a compensation for such act. In the case of Holmes v. Tremper, 20 Johns. R. 28, it was held that the plaintiff" was not entitled to any recompense for services rendered in saving defendant's property from fire, because such services were entirely voluntary, and without any express or implied promise on the part of defendant to pay for them. No person is bound in law to take trouble with property which he finds ; and if, without any knowledge of the owner's wishes, he does incur expense on account of Rin-h property, does he not in so doing trust the liberality of the owner rather than the force of law, for it may be that such owner did not desire to have his property disturbed, or, if lost, preferred to find it him- self? Much of the stock in this country is permitted to run at large; and if every animal lost, or appearing to be lost, can be taken up and the owner thereof legally charged for all trouble and expense thereby incurred, the business of finding cattle would certainly become profitable, and persons might be largely iuvolved in debt without their knowledge or consent. 58 ILLUSTRATIVE CASES * Where a reward is offered for lost property, the finder, when he complies with the terms of the offer, has a right to retain the property in his hands until the promised reward is paid to him : Wentworth v. Day, 5 Met. 352. Persons are apt to offer a reward if they wish to pay for the finding of lost prop- erty. All the authorities make a difference between the find- ing of property lost at sea and the finding of property lost on land. Commercial policy allows salvage in the one case, be- cause there is peril in the finding, and immediate destruction threatens the property ; in the other case there is no peril, and generally no danger that the property will be destroyed. But, if it be admitted that the owner of lost property is bound to remunerate the finder for his trouble and expense in the find- ing, it is certain that such finder cannot pay himself as he goes along using the property for that purpose. He cannot be per- mitted to judge as to how mnch his demand for trouble and expense shall be, and then as to how much he ought to use the property to satisfy such demand. The owner has rights in these matters, and must be consulted. Let the property, when found, be returned to the owner, and then the amount and mode of compensation, if any, can be determined. Plaintiffs in this case having treated and used the horses as their own, for their own benefit aud gain, de- fendant had a right to charge them with a conversion of the property, and maintain his suit for its value. Judgment affirmed. in. Has the finder a legal claim for necessary and rea- sonable expenses in caring for and advertising the thing found 1 Reeder v. Anderson. Supreme Court of Kentucky, 1836. 4 Dana (Ky.), 193. Robertson, C. J. : The only question to be considered in this case is, whether the law will imply a promise by the owner of IN PERSONALTY. 59 a runaway slave to pay a reasonable compensation to a stranger for a voluntary, apprehension and restitution of the fugitive. And, though such friendly offices are frequently those only of good neighborship, which should not be influenced by mer- cenary motives or expectations, nevertheless, it seems to us that there is an implied request from the owner to all other persons to endeavor to secure to him lost property which he is anxious to retrieve ; and that, therefore, there should be an implied un- dertaking to (at least) indemnify any person who shall, by the expenditure of time or money, contribute to a reclamation of the lost property. "Whether, according to the proof, there was any such claim to reparation or indemnity in this case, is very doubtful: but, because it is doubtful, the Circuit Court erred in instructing the jury to find as in case of a nonsuit. And therefore, it is considered by the Court, that the judg- ment be reversed, the verdict set aside, and the cause remanded for a new trial. 2 Kent, 356-7 ; Marvin v. Treet, 37 Conn. 96 ; Schouler on Bailments, ? 28 ; Mill Creek, etc., v. Brighton, etc., Story on Bailments, \ 121 a ; Co., 27 Oh. St. 435 ; \ 621 a ; Baker v. Hoag, 3 Barb. 203 ; Schouler, P. P. Vol. 2, § 14 ; Nicholson v. Chapman, 2 H. Etter v. Edwards, 4 Watts, 63 ; Blackstone, 254 ; Binstead v. Buck, 2 W. Black- Dicta :— stone, 1117. Armory v. Flynn, 10 John. 102 ; IV. The finder has no lien upon the thing found for such recompense. Wood v. Pierson. Supreme Court of Michigan, 1881. 45 Michigan, 313. Graves, J. : Pierson sued in replevin and obtained judgment, and Wood and Chapman filed a bill of exceptions and brought 60 ILLUSTRATIVE CASES error. The subject of the action was a breastpin found by Chapman and claimed by Pierson. Many of the facts are not disputed. Pierson lost at Bay City, July 18, 1878, a small diamond pin, which seems to have separated from the tongue in some unknown way. The circumstances of the loss and the manner in which the body of the pin and toDgue became dis- united are left unexplained. The metallic setting was a com- mon pattern, and the gem had no peculiarities to facilitate its identification by non-experts. Pierson caused a notice to be inserted in the Tribune newspaper published in the city, of this tenor : — " LOST. " $25 Reward — Lost. — A diamond pin. The finder will be paid the above reward by leaving the same at this office." As will be observed, the advertisement neither gave a descrip- tion of the pin nor suggested who offered the reward. More- over, no means of any kind were provided for showing at the newspaper office the ownership or identity of the pin, or for connecting any pin which might be produced with the claim contained in the notice, nor was any money left with which to pay the reward, nor any provision whatever made for paying it there. Chapman found a pin which was subsequently ascertained to be the one in question. His first impression was, when he picked it up, that it was a cheap trinket, but on second thought he decided to show it to a jeweler. Dirt was adhering to it, and attention was at once drawn to the fact that, although the tongue was wholly missing, the rivet was secure and firmly in its place. The query naturally arose as to how this condition of the pin and the absence of the tongue might be accounted for. But in order to find out whether it had any material value, Chapman took it immediately to Wood, the other de- fendant, he being a jeweler, and was by him told that the stone was a diamond, and that a diamond pin had been advertised in the Tribune. On getting this information Chapman went at once to the newspaper office and saw Mr. Shaw, the editor and manager, who showed him the advertisement and informed him who the IN PERSONALTY. 61 author was. Mr. Shaw referred him for anything further to Mr. Pierson, and he at once carried the pin to Pierson's store and called for that gentleman. He was absent. Chapman was going from the city the next moruing, and he told a clerk, Mr. Martin, that he had found a pin, and, as he was going away, he would leave it at Mr. Wood's to be identified and returned to the owner. He then went to "Wood's, and there left it with in- structions to give it to the person who should identify it and pay the reward, and to no one else. This was Friday evening, July 26. The next morning he went from the city on business, and only returned the Monday following at noon. During his absence Pierson called on Wood and asked to see the pin in order to identify it, and Wood declined and required him to identify it first. Pierson attempted to do so, but he failed to satisfy Wood, and in the judgment of another jeweler to whom both referred, and who had the advantage of inspecting both the tongue and body of the pin and of comparing them, the physical appearances and indications were strongly against Pierson's claim. In respect to what was said at these interviews there was want , of harmony in the testimony. Pierson requested that another jeweler at Bay City, who, he said, had formerly re- paired the pin, and had a plaster cast of the stone and could identify it, might be permitted to see it. But Wood proposed that this gentleman should call with his mould, and he, Wood, could then see for himself whether it fitted or not. The gen- tleman came, but had no cast, and was unable to give a particu- lar description, and Wood declined to show the pin to him. Pierson then proposed that the pin should be sent at his ex- pense for the purpose of identification to Mr. Smith, of Detroit, who, he said, had mounted it. This was declined, and Wood suggested that Pierson should write to Smith for a description, an expedient, he observed, which would be attended with less risk, but this proposal was unacceptable to Pierson. The testimony disagreed as to the incidents of the effort to get the question of identification settled through Mr. Smith, and in regard to what took place between Pierson and Chap- man after the return of Chapman on the 29th. On Tuesday, 62 ILLUSTRATIVE CASES the 30th of July, Pierson sued out the writ of replevin and went with the sheriff to Wood's store to get the pin. It was not produced, and indeed was not then in the store, although the fact was not made known by Mr. Wood. It is unnecessary to recite the different versions of what took place. On the next rooming, Wednesday, the 31st, Mr. Chapman carried the pin to Detroit and satisfactorily ascertained at Mr. Smith's that it was the one advertised for by Mr. Pierson. He returned on Thursday, and on Friday, the day after, met the officer and handed the pin to him, with the request to get the reward. Pierson refused to pay it, and on giving the usual replevin bond received the pin from the officer. It has seemed proper to go into this detail on account of the singularities of the case. Yet it must not be assumed that the outline given lends the exact coloring to the transaction which would be perceptible to a jury on hearing the whole testimony. At the first glance every one must admit that as to one feature of the case, at least, there can be no doubt. The facts are con- clusive that the parties dispensed with the newspaper office as a place for doing what should be necessary in consequence .of the reward. Pierson in the first place neglected preparations which were incumbent on him as a legal preliminary to holding Chapman to a compliance at that place, and Chapman did not insist on performance there. Both parties proceeded on the tacit understanding that whatever was to be done should be done elsewhere. So much is too clear to admit discussion, and neither party is at liberty to claim any advantage on account of the omission to transact or perform at the printing office. According to the common law, the finder of goods lost on land becomes proprietor in case the true owner does not appear. And meanwhile his right as finder is a perfect right against all others. But if the true owner does appear, whatever right the finder may have against him for recompense for the care and expense in the keeping and preservation of the property, his status as finder only does not give him any lien on the property. Yet if such owner offer a reward to him who will restore the property, a lien thereon is thereby created to the extent of the reward so offered. This doctrine in favor of a lien in such circumstances is so laid down in Preston v. Neale, 12 Gray, IN PERSONALTY. 63 222, and authorities are cited for it. Among them is the leading case of Wentworth v. Day, by Chief Justice Shaw, reported in 3 Metcalf, 352, and which is approved and followed by the Supreme Court of Pennsylvania in Cummings v. Gann, 52 Perm. St. 484, adopted as correct by Story in his work on Bailments, §§ 121, and 621 a. Parsons has given it his sanction by incorporating it in the text of bis work on Contracts (vol. 3, p. 239, 6th ed.), and Edwards presents it as settled law in his treatise on Bailments, §§ 20, 68 (2d ed.). Under this principle the admission is unavoidable that when Pierson claimed the pin, on the footing of his notice and re- ward, of Chapman, the finder, who was holding it for the actual owner, it was, as between them, subject to a lien in Chapman's favor and against Pierson for the reward. Accord- ing to the language of the books, Chapman was entitled to detain the article from Pierson until the reward should be paid, and was under no legal obligation to relinquish possession to him, or to give it to another, or to allow anything to be done endangering his right or security. But there was a mutuality of rights. As claimant, Pierson was entitled to a reasonable time and to fair and reasonable opportunity in reference to the nature of the chattel, the existing state of things bearing on the transaction and the surrounding circumstances, and without impairing Chapman's right as contingent owner, nor his right of lien, nor interfering with his duty to the true ownership which might be subsequently asserted by another, to make such a showing as he could that the property was the same he had lost and advertised, and such evidence as would satisfy a fair and reasonable person of the fact. It was not for Chapman to baffle investigation by any unfair action or inaction, or give way to unfounded and unreasonable suspicion, and then object that the evidence of identification was not sufficient. Nor was it for Pierson to demand anything which was not fair and just under the circumstances, and need- ful for investigation, and consistent with Chapman's rights and duties, and then make its refusal a pretext for charging injus- tice, and an excuse for making costs ; and in regard to these and similar matters it was for the jury to say what was the conduct of the parties ; whether it was fair and reasonable or 64 ILLUSTRATIVE CASES otherwise; whether either or both materially deviated from the proper course ; whether the kind of reciprocity the occasion called for was shown or not, and whether Chapman was bouud or not to be satisfied of the rectitude of Pierson's claim when the suit was begun. Whether as between the parties and in view of all the con- siderations bearing on their rights and duties, and on the con- veniences and inconveniences of identification growing out of the nature of the property, and bearing on the chances for im- position, and on the fact of Chapman's being liable to account to whoever should at last be found to be actual owner, it was reasonably and fairly due to Pierson to have a personal inspec- tion to enable him to say that the pin was, or was not, his property, and if he thought it was, then to facilitate his proof, was not a matter of law. It depended on the peculiarities of the ease, and was a question for the jury under instructions conforming to the principles here explained. For the purpose of judging with what propriety the parties acted, and whether Chapman was guilty of legal fault, the transaction must be contemplated as it was on the 30th of July when the action commenced. It is necessary to keep in mind what time had then been taken, and what had been done about identifying the pin, and what evidence Chapman had of the validity of Pierson's claim. That satisfactory evidence was procured afterwards by Chapman must not be taken to show that he had fair and reasonable evidence before, or that his prior conduct was unjust. In considering this aspect of the controversy, it is necessary to confine attention to the facts and appearances manifested up to the time the writ was taken out. The question was then pending and unsettled. The contention touching the right of action in the absence of any tender of the reward is of no practical importance on this record. Whether in point of fact Chapman waived or aban- doned the reward itself, would be a question for the jury under proper instructions. Inasmuch as it belonged to Pierson to identify the property, and pay the reward too, it is not reason- able to contend that, because Chapman insisted on the identi- fication, he therefore waived the reward. The exaction of the first, or even a firm stand on every legal advantage concerning IS PERSONALTY. 65 identification, would not imply relinquishment of the other. Unless the reward itself was in fact waived, or there was such behavior on the part of Chapman respecting Piersou's reclama- tion as was tantamount to a denial of Pierson's right and a wrongful detention, it is not perceived that there was any ground for holding that the lien was forfeited. In Isaack v. Clark, 2 Bulstrode, 306, Lord Coke states the law in this wise : " When a man doth finde goods, it hath been said, and so commonly held, that if he doth dispossess himself of them, by this he shall be discharged ; but this is not so, as appears by 12 E. IV. , fol. 13, for he which findes goods is bound to answer him for them who hath the property ; and if he deliver them over to any one, unless it be unto the right owner, he shall be charged for them, for at the first it is in his election whether he will take them or not into his custody, but when he hath them, one onely hath then right unto them, and, there- fore, he ought to keep them safely ; if a man, therefore, which findes goods, if he be wise, he will then search out the right owner of them, and so deliver them unto him ; if the owner comes unto him and demands them, and he answers him, that it is not known unto him whether he be the true owner of the goods or not, and for this cause he refuseth to deliver them, this refusal is no conversion, if he do keep them for him." • Lord Coke very clearly enforces the right and duty of the finder to be certain of the true owner before he makes delivery. As he is bound to hold for the true owner, and is liable in case of misdelivery, the law makes it his duty as well as his right, even when there is no reward, to " search out," or, in other language, find the " right owner," or see to it that he submits to no other than the " right owner." Undoubtedly if Chapman's conduct was such that a jury would, under the cir- cumstances of the case, feel satisfied that he was actually per- verse and unreasonable, and pursued a course which was adopted to baifie fair investigation, instead of maintaining the attitude of a man whose duty it was, in the quaint terms of Lord Coke, to "search out the right owner r " it would be just to regard him as having detained the property unlawfully. The neglect to tender the reward, if it was still claimed,, could not defeat the action : Bancroft v. Peters,. 4 Mich. 619.. 5 66 ILLUSTRATIVE CASES The remedy of trover was originally given to enable the loser of goods to recover of the finder, and the principle has found recognition in one of the provisions of our action of replevin : Comp. L. § 6754. The statute expressly refers to a case where one party is found to have a lien, and the other the general ownership, and the Court is required to render such judgment as shall be just. The provision did not escape the attention of the Court below. It was mentioned in the charge. The parties respectively ignored the statute concerning lost property and planted themselves on the common law, and hence there seems to be no occasion to notice the former. The charge given by the learned Judge was very elaborate. In some essential particulars it seems open to a construction not consistent with the views which are here explained. But it is not needful to specify the observation referred to. It is enough to say now, that whatever may have been in- tended, the charge as we find it in the record must have been freceived by the jury as instructing them that the defendants were bound to submit the pin to the personal inspection of the jplaintiff on his request, as a safe and proper expedient for the purpose of "searching out the right owner," and they could not have supposed that it was submitted to them to decide according to their own judgment of the circumstances whether the defendants ought or ought not to have allowed such in- spection. The question was not for the bench, but for the jury (Under suitable instructions. The case has several features which demand a very strict adherence to the rule which restricts the province of the Judge to the conveyance of such matters of law to the jury as the case calls for, and assigns to the jury the determination of all matters of fact. No doubt the unusual, if not unprecedented characteristics of the litigation, and the ordinary hurry of a trial, may explain all of the incidents which on careful review appear to be incapable of support. The result reached is that the judgment must be reversed with costs, and a new trial granted. 2 Kent, 290. IN PERSONALTY. 67 V. But he has such lien if a certain reward has been offer- ed for the restoration of the thing lost, and the finder sought for and found the thing in view of such reward. "Wentworth v. Day. Supreme Judicial Court of Massachusetts, 1841. 3 Metcalf, 352. Shaw, C. J. Although the finder of lost property on land has no right of salvage at common law, yet if the loser of property, in order to stimulate the vigilance and industry of others to find and restore it, will make an express promise of a reward, either to a particular person, or, in general terms, to any one who will return it to him, and in consequence of such offer one does return it to him, it is a valid contract. Until something is done in pursuance of it, it is a mere offer, and may be re- voked. But if, before it is retracted, one so far complies with it as to perform the labor for which the reward is stipulated, it is the ordinary case of labor done on request, and becomes a contract to pay the stipulated compensation. It is not a gratui- tous service, because something is done which the party was not bound to do, and without such offer might not have done : Symmes v. Frazier, 6 Mass. 344. But the more material question is whether, under this offer of reward, the finder of the defendant's watch, or the father, who acted in his behalf and stood in his right, had a lien on the watch, so that he was not bound to deliver it till the reward was paid. A lien may be given by express contract, or it may be im- plied from general custom, from the usage of particular trades, from the course of dealing between the particular parties to the transaction, or from the relations in which they stand, as prin- cipal and factor : Green v. Farmer, 4 Bur. 2221. In Kirkman v. Shawcross, 6 T. R. 14, it was held that where certain dyers gave general notice to their customers that on all goods received 68 ILLUSTRATIVE CASES for dyeing after such notice they would have a lien for their general balance, a customer dealing with such dyers after notice of such terms must be taken to have assented to them, and thereby the goods became charged with such lien by force of the mutual agreement. But in many cases the law implies a lien from the presumed intention of the parties, arising from the relation in which they stand. Take the ordinary case of the sale of goods, in a shop or other place, where the parties are strangers to each other. By the contract of sale the prop- erty is considered as vesting in the vendee ; but the vendor has a lien on the property for the price, and is not bound to deliver it till the price is paid. Nor is the purchaser bound to pay till the goods are delivered. They are acts to be done mutually and simultaneously. This is founded on the legal presumption that it was not the intention of the vendor to part with his goods till the price should be paid, nor that of the purchaser to part with his money till he should receive the goods. But this presumption may be controlled by evidence proving a dif- ferent intent, as that the buyer shall have credit or the seller be paid in something other than money. In the present case the duty of the plaintiff to pay the stipu- lated reward arises from the promise contained in his advertise- ment. That promise was that whoever should return his watch to the printing-office should receive twenty dollars. No other time or place of payment was fixed. The natural if not the necessary implication is that the acts of performance were to be mutual and simultaneous ; the one to give up the watch on payment of the reward, the other to pay the reward on receiv- ing the watch. Such being, in our judgment, the nature and legal effect of this contract, we are of opinion that the de- fendant on being ready to deliver up the watch had a right to receive the reward in behalf of himself and his son, and was not bound to surrender the actual possession of it till the re- ward was paid ; and, therefore, a refusal to deliver it without such payment was not a conversion. It was competent for the loser of the watch to propose his own terms. He might have promised to pay the reward at a given time after the watch should have been restored, or in any other manner inconsistent with a lien for the reward on the IN PERSONALTY. 69 article restored, in which case no such lieu would exist. The person restoring the watch would look only to the personal re- sponsibility of the advertiser. It was for the latter to consider whether such an offer would be equally efficacious in bringing back his lost property as an offer of a reward secured by a pledge of the property itself; or whether, on the contrary, it would not afford to the finder a strong temptation to conceal it. "With these motives before him he made an offer to pay the reward on the restoration of the watch ; and his subsequent attempt to get the watch without performing his promise is equally inconsistent with the rules of law and the dictates of justice. The circumstance in this case that the watch was found by the defendant's son, and by him delivered to his father, makes no difference. Had the promise been to pay the finder, and the suit was brought to recover the reward, it would present a different question. Here the son delivered the watch to the father, and authorized the father to receive the reward for him. If the son had a right to detain it, the father had the same right, and his refusal to deliver it to the owner without pay- ment of the reward was no conversion. Judgment for the defendant. DARLINGTON, P. P. 49; Deslondes v. Wilson, 5 La. 397; Prescott v. Neale, 12 Gray, 222 ; S. C. 25, A. D. 187, n. Cummings v. Gann, 52 Pa. St. 4g4 ■ But not so where a liberal reward "Wilson v. Guyton, 8 Gill, 213. is offered. DARLINGTON, supra; If only part is found, the reward 1 Cooley's Blaekstone, Ch. 8, must be paid pro rata. 295, n ; f Wilson v. Guyton, supra. 70 ILLUSTRATIVE CASES VI. If the property is accidentally left in a certain place, or put safely away and forgotten, it is not strictly "lost property." McAvoy v. Medina. Supreme Judicial Court of Massachusetts, 1866. 11 Allen, 548. Dewey, J. It seems to be the settled law that the finder of lost property has a valid claim to the same against all the world except the true owner, and generally that the place in which it is found creates no exception to this rule : 2 Parsons on Con. 97 ; Bridges v. Hawkesworth, 7 Eng. Law & Eq. R. 424. But this property is not, under the circumstances, to be treated as lost property in that sense in which a finder has a valid claim to hold the same until called for by the true owner. This property was voluntarily placed upon a table in the de- fendant's shop by a customer of bis who accidentally left the same there and has never called for it. The plaintiff also came there as a customer, and first saw the same and took it up from the table. The plaintiff did not by this acquire the right to take the property from the shop, but it was rather the duty of the defendant, when the fact became thus known to him, to use reasonable care for the safe keeping of the same until the owner should call for it. In the case of Bridges v. Hawkesworth the property., although found in a shop, was found on the floor of the 6ame, and had not been placed there voluntarily by the owner, and the Court held that the finder was entitled to the possession of the same, except as to the owner. But the present case more resembles that of Lawrence v. The State, 1 Humph. (Tenn.) 228, and is indeed very similar in its facts. The Court there take a distinction between the case of property thus placed by the owner and neglected to be removed, and property lost. It was there held that " to place a pocket-book upon a IN PERSONALTY. 71 table and to forget to take it away is not to lose it, in the sense in which the authorities referred to speak of lost property." We accept this as the better rule, and especially as one better adapted to secure the rights of the true owner. In view of the facts of this case, the plaintiff acquired no original right to the property, and the defendant's subsequent acts in receiving and holding the property in the manner he did does not create any. Exceptions overruled. Lawrence v. The State, 1 Humph. Livermore v. White, 74 Me. 452 ; (Tenn.) 228 ; Cincade v. Eaton, 98 Mass. 139. VII. A person who, finding lost property, with felonious intent conceals or converts it to his own use, know- ing at the time he finds it, or having means of ascer- taining, the owner thereof, is guilty of larceny. Baker v. The State. Supreme Court of Ohio, 1876. 29 Ohio St. 184. McIlvaine, J. The testimony offered on the trial below shows that on the evening of April 28, 1872, the defendant be- low found on a country public road, at Van Wert County, a pocket-book containing one ten-dollar bill, at a point in the road near which he had been engaged at work during the day, and that the goods found had been lost by the owner, Hinton Alden, at that point a few hours before. That Alden, at the time he lost the pocket-book, had been detained at that point for a short time, and within plain sight of the defendaut. On the next morning, Alden, who lived in the immediate neighborhood, informed the defendant of his loss, but defendant concealed the fact of finding, and afterwards ex- pended the money in the purchase of clothing. A few days after, the defendant admitted to a witness in the case that he had found the pocket-book, aud that he knew the owner ; and on 72 ILLUSTRATIVE CASES inquiry why he had not returned the goods to the owner, re- plied that " Finders are keepers." It was also shown by an admission of defendant, that the appearance of the pocket-book at the time he found it indicated that it had been very recently lost. The law of this case is well stated by Baron Parke, in Eegina v. Thurboru, 1 Deunison C. C. 387 ; also reported under the name of Regiua v. Wood, 3 Cox C. C. 453, thus : " If a man find goods that have actually been lost, or are reasonably supposed by him to have been lost, and appropriates them with intent to take the entire dominion over them, really believing when he takes them that the owner can not be found, it is not larceny. But if he takes them with bke intent, though lost, or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny." The fact, in this case, that the defendant expended the money after he had certain knowledge of the owner, did not render him guilty of larceny, if the offence was not complete before. The loss and finding of the goods were not disputed in the Court below, but the following questions were made : 1. When the defendant first took the goods upon the finding, did he in- tend to appropriate them to his own use ? This question was fairly found against him, from the fact of concealing the find- ing when informed by the owner of his loss, and from his sub- sequent declaration that " Finders are owners." 2. Did he have reasonable grounds to believe, at the time of finding the goods, that the owner could be found ? It was sufficiently proved that the defendant knew that the goods had been recently lost before the finding, and that Alden had recently been at the point where he found them. These facts constituted reasonable ground for believing that Alden was the owner. Judgment affirmed. State v. Levy, 23 Minn. 104 ; Bailey v. The State, 52 Ind. 462 ; State v. Weston, 9 Conn. 527 ; S. C. 21 A. E. 182 ; Lyder v. People, 1 111. 293 : People v. Anderson, 14 John. 294 ; Lane v. People, 5 Gilra. 305 ; People v. Gogdell, 1 Hill, 94 ; Eeg. v. Knight, 12 Cox C. C. 102 ; State v. Weston, 9 Conn. 527 ; IN PERSONALTY. 73 TO SAME POINT. Commonwealth v. Titus. Supreme Judicial Court of Massachusetts, 1874. 116 Mass. 42. Gray, C. J. : The rulings and instructions at the trial were quite as favorable to the defendant as the great weight, if not the unanimous concurrence, of the cases cited on either side at the argument would warrant. The finder of loBt goods may lawfully take them in his pos- session, and if he does so without any felonious intent at that time, a subsequent conversion of them to his own use, by whatever intent that conversion is accomplished, will not con- stitute larceny. But if, at the time of first taking them into his possession, he has a felonious intent to appropriate them to his own use and to deprive the owner of them, and then knows or has the reasonable means of knowing or ascertaining, by marks on the goods or otherwise, who the owner is, he may be found guilty of larceny. It was argued for the defendant that it would not be suf- ficient that he might reasonably have ascertained who the owner was ; that he must at least have known at the time of taking the goods that he had reasonable means of ascertaining that fact. But the instruction given did not require the jury to be satisfied merely that the defendant might have reason- ably ascertained it, but that at the time of the original taking he either knew or had reasonable means of knowing or ascer- taining who the owner was. Such a finding would clearly imply that he had such means within his own knowledge, as well as within his- own possession or reach, at that time. It was further argued that evidence of acts of the defendant, subsequent to the original finding and taking, was wrongly admitted, because such acts might have been the result of a purpose subsequently formed. But the evidence of the sub- sequent acts and declarations of the defendant was offered aud 74 ILLUSTRATIVE CASES admitted, as the bill of exceptions distinctly states, for the single purpose of proving, so far as it tended to do so, the intent with which the defendant originally took the property into his possession at the time of fiuding it. And the bill of exceptions does not state what the acts and declarations admit- ted in evidence were, and consequently does not show that any of them had no tendency to prove that intent, nor indeed that any acts were proved except such as accompanied and gave significance to distinct admissions of the intent with which the defendant originally took the goods. Exceptions overruled. State v. Ferguson, 2 McMull, 502 ; People v. Swan, 1 Parker C. C. 9 ; Randall v. The State, 1 Morris' Lane v. People, 10 111. 305 ; St. Cases, 254 ; State v. Cummings, 33 Conn. 260. IN PERSONALTY. 75 ABANDONED PROPERTY. Property abandoned by the owner returns to the common stock of unowned things, and the title thereto thereafter vests in him who first occupies it. I Heslem v. Lockwood. Supreme Judicial Court of Connecticut, 1871. 37 Conn. 500. » Park, J. "We think the manure scattered upon the ground, under the circumstances of this case, was personal property. The cases referred to by the defendant to show that it was real estate are not in point. The principle of those cases is that manure made in the usual course of husbandry upon a farm is so attached to and connected with the realty that, in the absence of any express stipulation to the contrary, it becomes appurtenant to it. The principle was established for the benefit of agriculture. It found its origin in the fact that it is essen- tial to the successful cultivation of a farm that the manure produced from the droppings of cattle and swine fed upon the products of the farm, and composted with earth* and vegetable matter taken from the land, should be used to supply the drain made upon the soil in the production of crops, which otherwise would become impoverished and barren ; and in the fact that ' manure so produced is generally regarded by farmers in this country as a part of the realty, and has been so treated by landlords and tenants from time immemorial : Daniels v. Pond, 21 Pick. 367 ; Lewis v. Lyman, 22 Id. 437 ; Kittredge v. Woods, 3 1$. Hamp. 503 ; Lassell v. Reed, 6 Greenl. 222 ; Parsons v. Camp, 11 Conn. 525 ; Fay v. Muzzy, 13 Gray, 53 ; Goodrich v. Jones, 2 Hill, 142 ; 1 Washb. on Real Prop. 5, 6. But this principle does not apply to the droppings of ani- mals driven by travellers upon the highway. The highway is not used, and cannot be used, for the purpose of agriculture. 76 ILLUSTRATIVE CASES The manure is of no benefit whatsoever to it, but, on the con- trary, is a detriment ; and in cities and large villages it becomes a nuisance, and is removed by public officers at public expense. The finding in this case is " that the removal of the manure and scrapings was calculated to improve the appearance and health of the borough." It is, therefore, evident that the cases relied upon by the defendant have no application to the case. But it is said that if the manure was personal . property, it was in the possession of the owner of the fee, and the scraping it into heaps by the plaiutiff did not change the possession, but it continued as before, and that, therefore, the plaintiff cannot recover, for he neither had the possession nor the right to the immediate possession. The manure originally belonged to the travellers whose ani- mals dropped it, but it being worthless to them, was imme- diately abandoned ; and whether it then became the property of the borough of Stamford which owned the fee of the land on which the manure lay, it is unnecessary to determine; for if it did, the case finds that the removal of the filth would be an improvement to the borough, and no objection was made by any one to the use that the plaintiff attempted to make of it. Considering the character of such accumulations upon highways in cities and villages, and the light in which they are everywhere regarded in closely settled communities, we cannot believe that the borough in this instance would have had any objection to the act of the plaintiff in removing a nuisance that affected the public health and the appearance of the streets. At all events we think the facls of the case show a sufficient right in the plaintiff to the immediate possession of the property as against a mere wrong-doer. The defendant appears before the Court in no enviable light. He does not pretend that he bad a right to the manure, even when scattered upon the highway, superior to that of the plain- tiff; but after the plaintiff had changed its original condition and greatly enhanced its value by his labor, he seized and appropriated to his own use the fruits of the plaintiff's out- lay, and now seeks immunity from responsibility on the ground that the plaintiff was a wrong-doer as well as himself. The conduct of the defendant is in keeping with his claim, and IN PERSONALTY. 77 neither commends itself to the favorable consideration of the Court. The plaintiff had the peaceable and quiet possession of the property, and we deem this sufficient until the borough of Stamford shall make complaint. It is further claimed that if the plaintiff had a right to the property by virtue of occupancy, he lost the right when he ceased to retain the actual possession of the manure after scraping it into heaps. We do not question the general doctrine that where the right by occupancy exists it exists no longer than the party retains the actual possession of the property, or till he appro- priates it to his own use by removing it to some other place. If he leaves the property at the place where it was discovered, and does nothius; whatsoever to enhance its value or chanare its nature, his right by occupancy is unquestionably gone. But the question is, if a party finds property comparatively worthless, as the plaintiff found the property in question, owing to its scattered condition upon the highway, and greatly increases its value by his labor and expense, does he lose his right if he leaves it a reasonable time to procure the means to take it away, when such means are necessary for its removal ? Suppose a teamster with a load of grain, while travelling the highway, discovers a rent in one of his bags, and finds that his grain is scattered upon the road for the distance of a mile. He considers the labor of collecting his corn of more value than the property itself, and he therefore abandons it, and pursues his way. A. afterwards finds the grain in this condition and gathers it kernel by kernel into heaps by the side of the road, and leaves it a reasonable time to procure the means necessary for its removal. While he is gone for his bag B. discovers the grain thus conveniently collected in heaps and appropriates it to his own use. Has A. any remedy ? If he has not, the law in this instance is open to just reproach. We think under such circumstances A. would have a reason- able time to remove the property, and during such reasonable time his right to it would be protected. If this is so, then the principle applies to the case under consideration. A reasonable time for the removal of this manure had not 78 ILLUSTRATIVE CASKS elapsed when the defendant seized and converted it to his own use. The statute regulating the rights of parties in the gather- ing of sea-weed gives the party who heaps it upon a public beach twenty-four hours in which to remove it, and that length of time for the removal of the property we think would not be unreasonable in most cases like the present one. We, therefore, advise the Court of Common Pleas to grant a new trial. 2 Schouler, P. P. 9 ; McCoon v. Ankeny, 11 111. 558 ; Livermore v. White, 74 Me. 455 ; Hurt v. Hollingworth, 100 U. S. 104; Sideck v. Duran, 67 Tex. 262. An invention may be abandoned. Am. & Dressing Mch. Co. v. Tool Co., 4 Fisher P. C. 299; "Woodbury Planing Machine Co. v. Keith, 101 U. S. 485. EXCEPTIONS. Title to waifs, estrays, treasure trove, and wrecks, instead of vesting in the finder, under the English law vested in the king. HUTHMACHER V. HARRIS. Supreme Court of Pennsylvania, 1861. 38 Pa. St. 491. "Woodward, J. The ground on which we affirm this judg- ment is, that there was no sale of the valuables contained in the block of wood, which is called, in virtue of its horizontal wheel and upright spindle, " a drill machine." Sale, said Mr. Justice Wayne, in "Williamson v. Berry, 8 How. 544, is a word of precise legal import, both at law and in equity. It means at all times a contract between parties to pass rights of property for money which the buyer pays, or promises to pay, to the seller for the thing bought or sold. That no such contract was made by these parties in respect to the contents of the drill machine, we deduce from the agreed facts of the case. The machine itself, and every essential part IN PERSONALTY. 79 and constituent element of it, were well sold. The considera- tion paid, though only fifteen cents, was in law a quid pro quo, and the sale, unaffected by fraud or misrepresentation, passed to the purchaser an indefeasible right to the machine and all the uses and purposes to which it could be applied. But the contents of the machine are to be distinguished from its con- stituent parts. They were unknown to the administrators, were not inventoried, were not exposed to auction, were not sold. Of course, they were not bought. All that was sold was fairly bought, and may be held by the purchaser. The title to what was not sold remains unchanged. A sale of a coat does not give title to the pocketbook which may happen to be tem- porarily deposited in it, nor the sale of a chest of drawers a title to the deposits therein. In these cases, and many others that are easily imagined, the contents are not essential to the existence or usefulness of the thing contracted for, and, not being within the contemplation or intention of the contracting parties, do not pass by the sale. The contract of sale, like all other contracts, is to be controlled by the clearly ascertained intention of the parties. The argument proceeded very ranch on the doctrine that equity will in certain cases relieve against mistakes of fact as well as of law ; but if there was no contract of sale, there could be no mistake of fact to vitiate it, and therefore that doctrine has no possible application. Mistake is sometimes a ground of relief in equity ; but a man who puts up his wares at auction and sells them to the highest bidder, has no right to relief on the ground that he was ignorant of the value of that which he sold. Such a mistake comes of his own negligence, for it is his duty to possess all necessary know- ledge of the value of that which he brings to market, and the rule is general that if a party becomes remediless at law by his Own negligence, equity will leave him to bear the consequences. Nor could these administrators, had they sold the contents, have pleaded, in addition to their ignorance, their fiduciary character, and their possible liability for a devastavit, in defeat of the vested rights of the purchaser ; for, in respect to the personalty of the decedent, they stood in the dead man's shoes, and were in fact, as they are commonly called in law, his personal representatives. The law cast the personal estate upon 80 ILLUSTRATIVE CASES them for purposes of administration, and a fair sale made in pursuit of that purpose would confer as perfect a title as if made by a living owner. They, no more than any other vendor, could not set aside such a sale to avert the consequences of their own negligence. But, inasmuch as they did not, in point of fact, sell the valu- ables which are in dispute, these principles, and all the argu- ments drawn from the law of mistake, are outside of the case. If, then, there was no sale and purchase of the contents of the block or machine, how did Huthmacher, when he discov- ered his unsuspected wealth, hold it? Evidently as treasure trove, which, though commonly defined as gold or silver hidden in the ground, may, in our commercial day, be taken to include the paper representatives of gold or silver, especially when they are found hidden with both of these precious metals. And it is not necessary that the hiding should be in the ground, for we are told, in 3 Inst. 132, that it is not " material, whether it be of ancient time bidden in the ground, or in the roof, or walls, or other part of a castle, house, building, ruins, or otherwise." The certain rule of the common law, in regard to treasure trove, as laid down by Bracton, lib. 3, cap. 3, and as quoted in Viner's Abridgment, is, " that he to whom the property is, shall have treasure trove, and if he dies before it be found, his executors shall have it, for nothing accrues to the king unless where no one knows who hid that treasure." The civil law gave it to the finder, according to the law of nature, and we suppose it was this principle of natural law that was referred to in what was said of treasure trove in a field, in Matthew's Gospel, XIII. 44. But the common law, which we administer, gave it always to the owner if he could be found, and if he could not be, then to the King, as wrecks, strays, and other goods are given, " whereof no person can claim property :" 3 Inst. 132. Huth- macher, therefore, held the unsold valuables for the personal representatives of the deceased owner. Several sporadic cases, some of which were highly apocryphal, were mentioned in the argument as affording analogies more or less appropriate to this case, but it is quite unnecessary to IN PERSONALTY. 81 discuss them, because if they touch they do not encumber the clear ground whereon, as above indicated, we rest our judgment. The judgment is affirmed. TO SAME POINT. Livermore v. White. Supreme Judicial Court of Maine, 1883. 74 Me. 452. Appleton, C. J. : This is an action of replevin for certain hides of tanned leather. The plaintiff's only title is as finder of them as lost goods. The verdict being against him, excep- tions were duly filed to the rulings of the presiding justice, which have been very elaborately and ably argued. It is in proof that in 1840, Edward Southwjek was then owning and carrying on a large tannery, containing seven hundred and eleven vats of which the vats in question were part ; that he sold the tannery to Southwick and "Weeks who occupied a portion of the vats, not occupying the outside vats ; that Edward Southwick died shortly after his conveyance of his estate ; th^t the same passed to the Yassalboro' Manufac- turing Company, which erected its mills thereon over twenty years ago ; that the defendant is their agent and servant ; that while the company were digging to lay a foundation for a brick building in addition to their present erection, the plain- tiff, a servant in their employ, discovered the vats and the- leather therein, by virtue of which discovery he claims title thereto. ' It further appeared that these hides were identified as hides- placed in the vats by Edward Southwick, and omitted to be taken when his vats were emptied. (I.) Upon the question of abandonment the jury were in- structed that if they should "find that the owners, for any reason satisfactory to themselves (at that time) intentionally abandoned these hides, expecting that the first finder,, the first: 6 82 ILLUSTRATIVE CASES explorer or excavator should take possession and enjoy the property and the benefit . . with an inteution of the owner or agent not to resume possession, and not to claim any control or dominion over them thereafter, finally relinquishing all in- terest in them . . then these finders, under the rules given, would have a right to the possession as against all persons whatsoever," — but if they should find that Edward Southwick, or his agent, or ... " any owner, whoever he may have been, of these hides, intentionally, carefully, voluntarily and in the ordinary course of business placed them there as his property, and they were accidentally or inadvertently overlooked and forgotten, they remained the property of such owner or the heirs of such owner or of his estate to the present time." The instruction is correct. Abandonment includes both the intention to abandon and the external act by which the in- tention is carried into effect. Here the act was one of pres- ervation — the proprietor expending labor upon his property thereby to enhance its value. It was an act which excludes the very idea of abandonment. In McLaughlin v. White, 2 Wendell, p. 405, Chancellor Walworth says : " If chattels are found secreted in the earth or elsewhere, the common law presumes the owner placed them there for safety, intending to reclaim them. If the owner cannot be found, he is presumed to be dead, and that the secret died with him. In such cases, the property belongs to the sovereign of the country as the heir to him who was the owner ; but if they are found upon the surface of the earth or in the sea, and if no owner appears to claim them, it is presumed they have been intentionally abandoned by the former proprietor, and as such they are returned into the com- mon mass of things, as in a state of nature." They consequently belong to the finder or first occupant, who thinks fit to appropriate them to his own use ; 1 Bl. Com. 308 ; 2 Id. 402. Here there was no secreting of the hides ; no in- tentional abandonment, and the estate to which the property belongs is known. The only title of the plaintiff is by find- ing, but under the circumstances he acquires no right to the property. ...... The civil law recognizes the title by finding, by occupation, IN PERSONALTY. 83 which gives property in a thing which previously had no proprietor. Quod enim ante nullius est, id naturali ratione oc- cupanti conceditur. Inst. 2, 1, 12. If a thing already had an owner, it is only by dereliction by him that it can be appro- priated by occupation. Dereliction or renunciation properly requires both the intention to abandon and external action. Thus the casting overboard of articles in a tempest to lighten the ship is not dereliction, as there is no intention of aban- doning the property in the case of salvage. Inst. 2, 1, 48. Nor does the mere intention of abandonment constitute dereliction of property without a throwing away or removal, or some other external acts, and herein dereliction of property differs from dereliction of possession, which does not require the second element. "There is this difference between dominion and possession, — that dominion continues after the will to own has ceased, whereas possession ceases with the will to possess:" Poste's Gains, 170. By Hadrian's law, when treasure was found by any one on his own land, it became his property, but if found ac- cidentally on the land of another, one-half belongs to the finder, and the other half to the owner of the land. This rule is adopted in the French code. Code Civil Act, 713 ; Macken- zie's Roman Law, 170. (II.) Nor can this be deemed treasure trove, which is thus denned in Jacob's Dictionary. It is " where any money is found hid in the earth, but not lying upon the ground, and no man knows to whom it belongs." Nothing is treasure trove but gold or silver. " It is not treasure trove if the owner can be known. Nor though the owner be dead ; for his executors or administrators shall have it:" Com. Dig. Art. "Warp. G. All the elements constituting treasure trove are wanting. Here was no hiding. Here was no secrecy. The owner was known. The deposit was not for concealment, but in the usual and ordinary mode of business. (III.) This is not a case of lost goods. The owner is shown. They belong to his estate. The title of the finders vanishes when the owner is known. These goods were not lost. The facts negative a loss by the owner. The hides were through carelessness left in the vat. If the fact of their being M ILLUSTRATIVE CASES there was forgotten by the owner, they are none the less his, — and though 1 forgotten they are not lost. They remain in the vats subject to his control. In McAvoy v. Medina, 11 Allen; 548, it was held that placing a pocket-book voluntarily by a customer upon a table in a shop, and accidentally leaving it there or forgetting to take it, is not to lose it within the sense in which the author- ities speak of lost property. "To discover an article volun- tarily laid down by the owner in a banking room and upon a desk provided for such persons having business there, is not the finding of a lost article," remarks Wells, J., in Kincaid v. Eaton, 98 Mass. 139. "Property is not lost in the sense of the rule," observes Trunkey, J., in Hamaker v. Blanchard, 90 Penn. 577, "if it was intentionally laid on the table, counter, or other place by the Owner, who forgot to take it away, and in such case the proprietor of the premises is entitled to retain the custody." " The loss of goods," the Court say, in Lawrence v. State, 1 Humphrey, 228, "in legal and common intendment, depends on something more than the knowledge or ignorance, the memory' or Want of memory of the owner' as to their locality at any given moment. . . .To lose is not to place any- thing carefully and voluntarily in the place you intend and then forget it ; it is casually and involuntarily to part from the possession ; and the thing is then usually found in a place or under circumstances to prove to the finder the owner's will was not employed in placing it there." The instructions upon the controverted questions were cor- rect. Hides in a vat for the purpose of tanning, though not removed when the other vats are cleared, are not to be deemed abandoned or derelict, — nor though remaining in the vats for a long period through the forgetfulness of their owner or the ignorance of his representative, are they to be considered lost, so that the finder thereby acquires a title to them. Nor can the finding be deemed treasure trove, for there was no gold or silver hidden, and no hiding. Ekceptions overruled. 1 Blackstone, 295 ; 2 Schouler, P. P. \ 10. IN PERSONALTY. ,85 TO SAME POINT. "WRECKS. Hamilton & Smith v. Davis. Court of King's Bench, 1771. 5 Burr. 2732. Lord Mansfield. There is no sort of doubt concerning the true ownership of these goods, which were cast away in a storm, and recently pursued. Everybody else restored to the true owner the proportions that they had got of them upon a proper salvage offered ; this defendant refused to deliver the share that he had got, being forfeited according to his appre- hension as a wreck, because uo live animal came ashore. He likewise objects to the plaintiff's recovering because certain forms, which he says were requisite to be performed, have not, as be alleges, been properly performed. The first question is, " Whether these goods are forfeited." Now, no case is produced, either at common law, or on the construction of the statute E. I., c. 4, to prove that the goods were forfeited, because no dog or cat or other animal came alive to shore. I will therefore presume that there never v as any such determination ; and that no case could have been de- termined so contrary to the principles of law, justice, and humanity. The very idea of it is shocking. And there is no ground for such a forfeiture, upon the distinction that has been so much urged, between a man or other animal coming to shore alive, or not alive. The coming to shore of a.dog or a eat alive can be no better proof than if they should come ashore dead ; the escaping alive makes no sort of difference. If the owner of the dog or cat Or other animal was known, the presumption of the goods belonging to the same person would be equally strong, whether the animal was alive or dead. If no owner could be discovered, the goods belonged to the king. But there outfit to be a reasonable time allowed to the owner to come in and claim them ; and it was proper that the time should be 86 ILLUSTRATIVE CASES limited. The old limitation was a year and a day ; which was the time limited in many other cases. See 7 Co. 107, b. 108, a. The mode of proof was as it might happen. Goods are now, generally, marked ; perhaps in ancient days it might not be so common, or so accurate ; and then a dog or cat might be a presumption towards the ascertaining the owner of the goods. Bracton, who wrote in the time of H. 3, says (Lib. 3, c. 3, pa. 220, a) : " Magis proprie dici poterit wreccum, fi navis frangatur, &c. nisi ita sit, quod verus dominus aliunde veniens, per eerta indicia et signa docuerit res esse suas ; ut si canis vivus inveni- atur, &c. et eodem modo, si certa signa apposita fuerint merci- cibus et alijs rebus." And Bracton's opinion has been recog- nized by later writers. Lord Coke, in his first report, 107, says (see also 2 Inst. 166) that it appears from Bracton that the statute of W. I. was but a declaration of the common law ; and cites the same passage from Bracton : " Et qudd hujusmodi dici debet wreccum, verum est, nisi sit qudd verus dominus aliunde veniens, certa indicia est signa donaverit res esse suas ; ut si canis vivus inveniatur, et constare poterit quod talis sit dominus illius canis ; presumptive ex hoc, ilium esse dominum illius canis et illarum rerum ; eodem modo, si certa signa im- posita fuerint mercibus." Thus it stands at the common law. Then, has the statute of 3 E. I., c. 4, altered the common law ? No ; quite otherwise. And this Act was made in favor of the owner. It enacts (negatively) " That it shall not be wreck, if man, dog, or cat escape alive ;" but it has no contrary (positive) provision, " That if neither man, dog, or cat, &c, escape alive, it shall belong to the king." This statute has been recognized as declaratory of the common law. The words of it are — " Concerning wreck of the sea, it is agreed that where a man, a dog, or a cat escape quick out of the ship, that such ship, nor barge, nor any thing within them shall be adjudged wreck but the goods shall be saved and kept, &c, so that if any sue for those goods, and after prove that they were his or perished in his keeping, within a year and a day, they shall be restored to him without delay ; and if not, they shall remain to the king." Lord Coke says that " These three instances (of a man, dog, or cat) are put but for examples ; for, besides these two kinds of beasts, all other beasts, fowls, birds, hawks, and other IN PERSONALTY. 87 living things are understood, whereby the ownership or property of the goods may be known :" 2 Inst. 167, 168. And this is agreeable to the charter of king Henry the 2d, which includes every animal whatsoever. And this escape of a dog or cat or other animal is considered as a medium of proof, whereby the ownership or property of the goods may be known : 2 lust. 168. If this was a recent statute, it ought to be construed according to reason and justice. For the Court ought not, unless they are absolutely obliged to it, to construe an Act of Parliament directly contrary to the plain and clear principles of justice and humanity, which the construction urged on the part of the defendant in this case would undoubtedly be in the highest degree. But this is a statute of very ancient standing ; and was declaratory of the common law (as appears from Brac- ton, who wrote before the making of it) ; and has been since sufficiently recognized ; and no case produced to the contrary, nor any authority in point. The other two statutes are out of the case : they do not relate to this matter. Besides, here the defendant has insisted upon property. I am very clear, that the direction was right ; and that the rule for a new trial ought to be discharged. The rule to show cause why there should not be a new trial was discharged. Peabody v. Twenty-eight Bags of The Schooner Tilton, 5 Mason, Cotton, 2 Am. Jur. 119 ; 465. Baker v. Bates, 13 Pick. 255 ; 88 ILLUSTRATIVE CASES EMBLEMENTS. Title to emblenients is also acquired by original occupancy. Reiley v. Rinsland. Supreme Court of Iowa, 1874. ■ 39 Iowa, 106. Miller, C. J. The record shows that "William B. "Wells, on the 30th of September, 1868, commenced au action in the District Court of Webster County against Hannah Reilly to set aside her patent to certain lands ; that that action was removed to the Circuit Court of the United States, in which a trial was had and a judgment rendered at the October Term, 1869, in favor of said Wells, declaring him the true owner of the laud and annulling the patent of Mrs. Reilly, which judg- ment was afterwards affirmed in the Supreme Court of the United States. On the 4th day of November, 1870, Mrs. Reilly filed her petition in the Circuit Court of the United States under the occupying claimant law, and at the May Term, 1871, of said Court she recovered a judgment against Wells for $2,353.39. In October, 1868, for a valuable consideration, , Hannah Reilly conveyed t6 the plaintiff, her son, a portion of the land embraced in her patent, which was subsequently an- nulled. The plaintiff continued in the actual occupancy of the land conveyed to him until ejected therefrom by process of law. He was not made a party to the action against Hannah Reilly. By the terms of the judgment in favor of Mrs. Reilly against Wells it was provided, among other things, that Wells should take no proceedings for the enforcement of his decree against Mrs. Reilly uutil the payment of the judgment rendered in her favor for the improvements made on the land by her, and that, in case of a failure to pay the same within three years, said Hannah Reilly should be entitled to hold the land free from the claim of Wells upon the payment of $3500 within one year thereafter. IN PERSONALTY. , 89 In July, 1871, Wells paid the judgment against him, and, on the 15th of the same month, sued out from the Circuit Court of the United States a writ of assistance, by virtue of which Han- nah Reilly and the plaintiff were removed from the lands in question, and the grain mentioned in plaintiff's petition was taken possession of by the defendants. The plaintiff thereupon brought this action to recover back said grain. The Court instructed the jury "that under the possession given by the Marshal in the service of the writ of assistance introduced in evidence in this case, the defendant, "Wells, was entitled to the possession of the property in controversy in this case at the time of the commencement of this suit, and they will render a verdict accordingly, and will find the value of the property at the amount named in the petition, to-wit: two hundred and five dollars." The first question involved in the instruction is, whether the writ of assistance under which Wells obtained possession of the land entitled him to the crops which were then upon the land, and had been raised by the plaintiff. It is a broad and almost universal principle that the tenant I who sows a crop shall reap it, if the term of his tenancy be un-l certain: 1 Washburn on Real Property, 102, 106; 2 Black-' stone's Com. 122 ; Stewart v. Doughty, 9 Johns. 108 ; Williams on Executors, 597. In order to entitle a tenant or his executor or administrator to emblements, his tenancy must be uncertain in its duration : Debow v. Colfax, 5 Halst. 128 ; Kittredge v. Wood, 3 1ST. H. 503 ; Whitmarsh v. Cutting, 10 Johns. 360 ; Chesley v. Welch, 37 Me. 106 ; Harris v. Carson, 7 Leigh. In the next place the tenancy must be determined by the act of ' God, as by the death of the tenant, or by the act of the lessor or owner in expelling the tenant or terminating his tenancy : Ibid. One of the important rights of a tenant for life is this right to emblements, or profits of the crop which the law gives him, or to his executors if he be dead, to compensate for the labor and expense of tilling and sowing the land. See Williams on Executors, 597. The same principles apply also to tenancies at will : Davis v. Thompson, 13 Me. 209 ; Davis v. Brockle- bank, 9 K H. 73 ; Sherburne v. Jones, 20 Me. 70 ; Stewart 90 ILLUSTRATIVE CASES v. Doughty, 9 Johns. 108; Chandler v. Thurston, 10 Pick. 205. A tenant having the right to the emblements has the cor- responding right also to enter upon the premises to harvest the crops growing at the termination of his tenancy : Forsythe v. Price, 8 Watts, 282 ; Humphries v. Humphries, 3 Iredell, 362 ; Coke on Lit. 56, a. By statute, in this State, " any person in the possession of real property with the assent of the owner, is presumed to he a tenant at will, unless the contrary is shown:" Revision, § 2216 ; Code, § 2014. Under the law in regard to the rights of occupying claimants, and by the terms of the judgment in the Circuit Court of the United States (Rev. Ch. 97), the plaintiff was entitled to the possession of the land until Wells should pay off that judgment, which he could have done at once, or he might do so at any time within three years. He did not choose to pay off the judgment at the time of its rendition, but delayed such payment for about two months. By so doing he assented to the plain- tiff remaining in possession during such delay. Plaintiff's possession was, therefore, with the assent of the owner. The duration of his tenancy was rendered uncertain by the defend- ant, and was determined by his act alone. The case, therefore, is brought within the rule under which the tenant is entitled to the growing crops. The defendant was allowed, by the law and the judgment of the Court, to pay off the judgment for the improvements at any time within three years. Plaintiff was entitled to the pos- session in the meantime. The defendant might take the whole three years to make payment if he saw fit to do so. The law would be a mockery if the plaintiff, under such circumstances, would not be allowed to cultivate the laud of which he was in the rightful possession, or, after having raised a crop thereon, the defendant should be permitted to take it away from him. When the statute gives the possession of land to an occupying claimant, as in this case, for three years, unless the owner shall sooner pay for the improvements, it does not mean that he shall have none of the fruits or benefits of such possession. It does not intend that the land shall lie idle and uncultivated IN PERSONALTY ' 91 during this time, nor that the owner shall reap all of the results of the cultivation thereof by the occupying claimant during the time he is in the lawful possession thereof. We have examined the cases cited by appellees' counsel, and find that but one of them sustains their theory of the case, namely: Strode v. Swim, 1 A. K Marshall, 271, which holds that the successful claimant, electing to pay for improvements under the occupying claimant law, is entitled to the crop grow- ing on the premises when possession is taken. "We have not seen the statute under which this decision was made. It may not have contained provisions giving time in which the successful claimant has the right to elect whether he will pay for the improvements or not, as our statute does, thereby creating a tenancy at will. Our statute on this subject did not originally, as enacted in the Code of 1851, contain this provision, but, on the contrary, it contemplated an immediate election to pay or not at the time of the rendition of the judgment: Revision, § 2267 ; Code of 1851, § 1236. By Chap. 153, Laws of 1858, this provision was enacted as an amendment of Chap. 80 of the Code of 1851. The difference in the conclusions reached by the two Courts may very well result from differences in the two statutes. In Lane v. King, 8 Wend. 584, cited by appellees' counsel, it was held that a lessee of the mortgagor, under a lease execu- ted subsequent to the mortgage, is not entitled, as against the mortgagee, to crops growing on the mortgaged premises at the time of the foreclosure and sale of the same ; and the mort- gagee, becoming the purchaser, may maintain trespass against the lessee for taking and carrying away the crops. The doctrine upon which this decision is based is that at that time in New York the mortgagee was the owner of the land ; that a purchaser of the interest of the mortgagor, or a lessee under him, acquired no rights as against the mortgagee, that he was a mere trespasser : 4 Johns. E. 215 ; 16 Id. 289 ; 2 Id. 61. It was said that the mortgagor, in giving a lease, became a disseizor as to the mortgagee. The Court regarded the lessee as a trespasser and not entitled to notice to quit. In this case the occupying claimant was lawfully in possession, and, as we .92 ILLUSTRATIVE