Supreme court of errors of connecticut, fairfield county


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37 Conn. 500; 1871 Conn. LEXIS 85

February Term, 1871, Decided

TROVER, for a quantity of manure; brought before a justice of the peace and appealed by the defendant to the Court of Common Pleas for the county of Fairfield, and tried in that court, on the general issue closed to the court, before Brewster, J.
On the trial it was proved that the plaintiff employed two men to gather into heaps, on the evening of April 6th, 1869, some manure that lay scattered along the side of a public highway, for several rods, in the borough of Stamford, intending to remove the same to his own land the next evening. The men began to scrape the manure into heaps at six o'clock in the evening, and after gathering eighteen heaps, or about six cart-loads, left the same at eight o'clock in the evening in the street. The heaps consisted chiefly of manure made by horses hitched to the railing of the public park in, and belonging to, the borough of Stamford, and was all gathered between the center of the highway and the park; the rest of the heaps consisting of dirt, straw and the ordinary scrapings of highways. The defendant on the next morning, seeing the heaps, endeavored without success to ascertain who had made them, and inquired of the warden of the borough if [**2] he had given permission to any one to remove them, and ascertained from him that he had not. He thereupon, before noon on that day, removed the heaps, and also the rest of the manure scattered along the side of the highway adjacent to the park, to his own land.

The plaintiff and defendant both claimed to have received authority from the warden to remove the manure before the 6th of April, but in fact neither had any legal authority from the warden, or from any officer of the borough or of the town. The borough of Stamford was the sole adjoining proprietor of the land on which the manure lay scattered before it was gathered by the plaintiff. No notice was left on the heaps or near by, by the plaintiff or his workmen, to indicate who had gathered them, nor had the plaintiff or his workmen any actual possession of the heaps after eight o'clock in the evening on the 6th of April.

Neither the plaintiff while gathering, nor the defendant while removing the heaps, was interfered with or opposed by any one. The removal of the manure and scrapings was calculated to improve the appearance and health of the borough. The six loads were worth one dollar per load. The plaintiff, on ascertaining [**3] that the defendant had removed the manure, demanded payment for the same, which the defendant refused. Neither the plaintiff nor defendant owned any land adjacent to the place where the manure lay. The highway was kept in repair by the town of Stamford.
On the above facts the plaintiff claimed, and prayed the court to rule, that the manure was personal property which had been abandoned by its owners and became by such abandonment the property of the first person who should take possession of the same, which the plaintiff had done by gathering it into heaps, and that it was not and never had been a part of the real estate of the borough or of any one else who might be regarded as owning the fee of the soil. He further claimed that if it was a part of the real estate, it was taken without committing a trespass, and with the tacit consent of the owners of such real estate, and that thereby it became his personal property of which he was lawfully possessed, and at least that he had acquired such an interest in it as would enable him to hold it against any person except the owner of the land or some person claiming under the owner.

The defendant claimed, upon the above facts, [**4] that the manure being dropped upon and spread out over the surface of the earth was a part of the real estate, and belonged to the owner of the fee, subject to the public easement; that the fee was either in the borough of Stamford or the town of Stamford, or in the parties who owned the lands adjacent; that therefore the scraping up of the manure, mixed with the soil, if real estate, did not change its nature to that of personal estate, unless it was removed, whether the plaintiff had the consent of the owner of the fee or not; and that, unless the heaps became personal property, the plaintiff could not maintain his action. The defendant further claimed, as matter of law, that if the manure was always personal estate, or became personal estate after being scraped up into heaps, the plaintiff, by leaving it from eight o'clock in the evening until noon the next day, abandoned all right of possession which he might have had, and could not, therefore, maintain his action.

The court ruled adversely to the claims of the plaintiff and held that on the facts proved the plaintiff had not made out a sufficient interest in, or right of possession to, the subject matter in dispute, to authorize [**5] a recovery in the suit, and rendered judgment for the defendant.
The plaintiff moved for a new trial for error in this ruling of the court.
DISPOSITION: New trial granted.
HEADNOTES: Manure which had accumulated in a frequented place in a public street of a borough, where the fee of the street belonged to the borough, was raked into heaps by the plaintiff in the evening, and left in that condition, to be carried away by him the next evening. During the forenoon of the next day the defendant, finding the manure in heaps, loaded it into his cart and carried it away. In an action of trover brought by the plaintiff for the value of the manure it was held—
1. That the manure was not to be regarded as so incorporated with the soil as to be real estate, but was personal property.
2. That it belonged originally to the owners of the animals that dropped it, but was to be regarded as abandoned by them.
3. That being abandoned property the first occupant who took it would have a right to appropriate it.
4. That after the plaintiff had added materially to its value by his labor in raking it into heaps, he was to be regarded as entitled to it against any person having no title.
5. That he was to be allowed a reasonable time to take it away.
6. That twenty-fours hours, the time allowed by statute for the removal of seaweed gathered into heaps, was not an unreasonable time to be allowed in such a case.
COUNSEL: Curtis and Hoyt, in support of the motion.

1. The manure in question was personal property abandoned by its owners. 2 Bla. Com., 387, 402; 2 Kent Com., 356.

2. It never became a part of the real estate on which it was abandoned. 2 Smith Lead. Cas., 252, 258; 1 Washb. R. Prop., bk. 1, ch. 10, sec. 11, § 6. Parsons v. Camp, 11 Conn., 525; Needham v. Allison, 4 Fost., 355; Plumer v. Plumer, 10 id., 558.
3. It being personal property abandoned by its owners, and lying upon the highway, and neither the owners of the fee nor the proper authorities of the town and borough having by any act of theirs shown any intention to appropriate the same, it became lawful for the plaintiff to gather it up and remove it from the highway, providing he did not commit a trespass, and removed it without objection from the owners of the land. Church v. Meeker, 34 Conn., 421. And no trespass was in fact committed. No person interfered with the plaintiff or made any objection. This court cannot presume a trespass to have been [**6] committed. 1 Greenl. Ev., § 34; 1 Swift Dig., 173.
4. But if the manure had become a part of the real estate, yet when it was gathered into heaps by the plaintiff it was severed from the realty and became personal estate. 1 Swift Dig., 534; Bouvier Law Dict., "Real Property." And being gathered without molestation from any person owning or claiming to own the land, it is to be considered as having been taken by the tacit consent of such owner. Martin v. Houghton, 45 Barb., 258.
5. The plaintiff therefore acquired not only a valid legal possession, but a title by occupancy, and by having expended labor and money upon the property. Such a title is a good legal title against every person but the true owner.

6. If the plaintiff had a legal title then he had the constructive possession. If he had legal possession, and only left the property for a short time intending to return and take it away, then he might maintain an action against a wrong doer for taking it away. 1 Swift Dig., 530; 1 Smith Lead. Cas., 473; Bird v. Clark, 3 Day, 272; Williams, v. Dolbeare, id., 498; Bulkeley v. Dolbeare, 7 Conn., 232; Heath v. Milward, 2 Bing., N. C., 98. The leaving of property for a [**7] short time, intending to return, does not constitute an abandonment. The property is still to be considered as in the possession of the plaintiff.

Olmstead, contra.
1. The manure mixed with the dirt and ordinary scrapings of the highway, being spread out over the surface of the highway, was a part of the real estate, and belonged to the owner of the fee, subject to the public easement. 1 Swift Dig., 107; Emans v. Turnbull, 2 Johns., 322; Fay v. Muzzey, 13 Gray, 53; Goodrich v. Jones, 2 Hill, 142; Daniels v. Pond, 2 Pick., 367; Parsons v. Camp, 11 Conn., 525; 1 Wms. Exrs., 615.
2. The scraping up of the manure and dirt into piles, if the same was a part of the real estate, did not change its nature to that of personal property, unless there was a severance of it from the realty by removal, (which there was not), whether the plaintiff had the consent of the owner of the fee or not, which consent it is conceded the plaintiff did not have.
3. Unless the scraping up of the heaps made their substance personal property, the plaintiff could not maintain his action either for trespass or trespass on the case.
4. In trespass de bonis asportatis, or trover, the plaintiff [**8] must have had the actual possession, or a right to the immediate possession, in order to recover. 1 Hilliard on Torts. ch. 18, § 8.
5. If the manure was always personal estate, it being spread upon the surface of the earth, it was in possession of the owner of the fee, who was not the plaintiff. Church v. Meeker, 34 Conn., 432; 1 Swift Dig., 107. The scraping of it into heaps, unless it was removed, would not change the possession from the owner of the fee to the plaintiff. The plaintiff therefore never had the possession.

6. If the heaps were personal property the plaintiff never had any right in the property, but only mere possession, if anything, which he abandoned by leaving the same upon the public highway from 8 o'clock in the evening until 12 o'clock the next day, without leaving any notice on or about the property, or any one to exercise control over the same in his behalf. 2 Hilliard on Torts, ch. 18, § 19, note c; id., ch. 18, § 14; Church v. Meeker, supra.

OPINION: [*505] 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 essential 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; [**10] Lewis v. Lyman, 22 Pick. 437; Kittredge v. Woods, 3 N.H. 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 animals driven by travelers upon the highway. The highway is not used, and cannot be used, for the purpose of agriculture. The manure is of no benefit whatsoever to it, but on the contrary 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 plaintiff did not change the possession, but it continued as before, and that therefore the plaintiff [**11]  [*506] cannot recover, for he neither had the possession nor the right to the immediate possession.
The manure originally belonged to the travelers whose animals dropped it, but it being worthless to them was immediately 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 facts 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 [**12] he had a right to the manure, even when scattered upon the highway, superior to that of the plaintiff; 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 outlay, 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 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 [*507] retains the actual possession of the property, or till he appropriates it to his own use by removing it to some other place. If he leaves the property at the place where it was discovered, [**13] and does nothing whatsoever to enhance its value or change 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 traveling 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 [**14] is open to just reproach. We think under such circumstances A would have a reasonable 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 elapsed when the defendant seized and converted it to his own use. The statute regulating the rights of parties in the gathering 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.
In this opinion the other judges concurred.



3 Cai. R. 175; 1805 N.Y. LEXIS 311

August, 1805, Decided

PRIOR HISTORY: [**1] THIS was an action of trespass on the case commenced in a justice's court, by the present defendant against the now plaintiff.
The declaration stated that Post, being in possession of certain dogs and hounds under his command, did, "upon a certain wild and uninhabited, unpossessed and waste land, called the beach, find and start one of those noxious beasts called a fox," and whilst there hunting, chasing and pursuing the same with his dogs and hounds, and when in view thereof, Pierson, well knowing the fox was so hunted and pursued, did, in the sight of Post, to prevent his catching the same, kill and carry it off. A verdict having been rendered for the plaintiff below, the defendant there sued out a certiorari, and now assigned for error, that the declaration and the matters therein contained were not sufficient in law to maintain an action.

DISPOSITION: Judgment of reversal.
HEADNOTES: Animals Ferae Naturae—What Gives Right of Property in—Trespass.

Pursuit alone gives no right of property in animals ferae naturae, therefore an action will not lie against a man for killing and taking one pursued by, and in the view of, the person who originally found, started, chased it, and was on the point of seizing it.

Occupancy in wild animals can be acquired only by possession, but such possession does not signify manucaption, though it must be of such a kind as by nets, snares or other means, as to so circumvent the creature that he cannot escape.
Citations—Just. Inst., lib. 2, tit. 1, sec. 13; Fleta, lib. 3, ch. 2, p. 175; Bracton, lib. 2, ch. 1, p. 8; Puffendorf, lib. 4, ch. 6, sec. 2, 10; Grotius, lib. 2, ch. 8, sec. 3, p. 309; 11 Mod., 74-130; 3 Salk., 9.

COUNSEL: Mr. Sanford, for the now plaintiff. It is firmly settled that animals, ferae naturae, belong not to anyone. If, then, Post had not acquired any property in the fox, when it was killed by Pierson, he had no right in it which could be the subject of injury. As, however, a property may be gained in such an animal, [**2] it will be necessary to advert to the facts set forth, to see whether they are such as could give a legal interest in the creature, that was the cause of the suit below. Finding, hunting, and pursuit, are all that the plaint enumerates. To create a title to an animal ferae naturae, occupancy is indispensable. It is the only mode recognized by our system. 2 Black. Com. 403. The reason of the thing shows it to be so. For whatever is not appropriated by positive institutions, can be exclusively possessed by natural law alone. Occupancy is the sole method this code acknowledges. Authorities are not wanting to this effect. Just. lib. 2, tit. 1, sec. 12. "Ferae igitur bestioe, simul atque ab aliiquo captoe fuerint jure gentium statim illius esse incipiunt." There must be a taking; and even that is not in all cases sufficient, for in the same section he observes, "Quicquid autem corum ceperis, eo usque tuum esse intelligitur, donec tua custodia coercetur; cum vero tuam evaserit custodiam, et in libertatem naturalem sese receperit, tuam esse desinit, et rursus occumpantis fit." It is added also that this natural liberty may be regained even if in sight of the pursuer, "ita sit, ut difficilis [**3] sit ejus persecutio." In section 13, it is laid down, that even wounding will not give a right of property in an animal that is unreclaimed. For, notwithstanding the wound, "multa accidere soleant ut eam non capias," and "non aliter tuam esse quam si eam ceperis." Fleta (b. 3, p. 175) and Bracton (b. 2, ch. 1, p. 86) are in unison with the Roman law-giver. It is manifest, then, from the record, that there was no title in Post, and the action, therefore, not maintainable.

Mr. Colden, contra. I admit, with Fleta, that pursuit alone does not give a right of property in animals ferae naturae, and I admit also that occupancy is to give a title to them. But, then, what kind of occupancy? And here I shall contend it is not such as is derived from manucaption alone. In Puffendorf's Law of Nature and of Nations (b. 4, ch. 4, sec. 5, n. 6, by Barbeyrac), notice is taken of this principle of taking possession. It is there combatted, nay, disproved; and in b. 4, ch. 6, sec. 2, n. 2. lbid. sec. 7, n. 2, demonstrated that manucaption is only one of many means to declare the intention of exclusively appropriating that which was before in a state of nature. Any continued act which does this, [**4] is equivalent to occupancy. Pursuit, therefore, by a person who starts a wild animal, gives an exclusive right whilst it is followed. It is all the possession the nature of the subject admits; it declares the intention of acquiring dominion, and is as much to be respected as manucaption itself. The contrary idea, requiring actual taking, proceeds, as Mr. Barbeyrac observes, in Puffendorf (b. 4, ch. 6, sec. 10), on a "false notion of possession."
Mr. Sanford, in reply. The only authority relied on is that of an annotator. On the question now before the court, we have taken our principles from the civil code, and nothing as been urged to impeach those quoted from the authors referred to.
OPINION: [*177] TOMPKINS, J., delivered the opinion of the court:
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 [**5] 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 question. It is admitted that a fox is an animal ferae naturae, and that property in such animals is acquired by occupancy only. These admissions narrow the discussion to the simple question of what acts amount to occupancy, applied to acquiring right to wild animals.
If we have recourse to the ancient writers upon general principles of law, the judgment below is obviously erroneous. Justinian's Institutes (lib. 2, tit. 1, sec. 13), and Fleta (lib. 3, ch. 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 Breton (lib. 2, ch. 1, p. 8).
Puffendorf (lib. 4, ch. 6, sec. 2 and 10) defines occupancy of beasts ferae naturae, to be the actual corporeal possession of them, and Bynkershock is cited as coinciding in this definition. It is indeed with hesitation that Puffendorf affirms that a wild beast mortally wounded or greatly [**6] maimed, cannot be fairly intercepted by another, whilst the pursuit of [*178] 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, therefore, 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 ferae naturae have been apprehended; the former claiming them by title of occupancy, and the latter ratione 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 [**7] 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 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 contrary, the mortal wounding of such beasts, by one not abandoning 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 individual 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 intercepting 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 [**8] such means of apprehending them... Barbeyrac seems to have adopted and had in view in his notes, [*179] the more accurate opinion of Grotius, with respect to occupancy. That celebrated author (lib. 2, ch. 8, sec. 3, p. 309), speaking of occupancy, proceeds thus: "Requiritur autem corporalis quoedam possessio ad dominium adipiscendum; atque ideo, vulnerasse non sufficit." But in the following section he explains and qualifies this definition of occupancy: "Sed possessio illa potest non solis manibus, sed instrumentis, ut decipulis, ratibus, 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 latitude 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 pursuit, 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, [**9] I think clearly distinguishable 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 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 occupancy of beasts ferae naturae, within the limits prescribed by the learned authors above cited, for the sake of certainty, and preserving peace and order in society. If the first seeing, starting or pursuing such animals, without having so wounded, circumvented 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 [**10] or damage for which a legal remedy [*180] can be applied. We are of opinion the judgment below was erroneous, and ought to be reversed.

LIVINGSTON, J. My opinion differs from that of the court. Of six exceptions, taken to the proceedings below, all are abandoned except the third, which reduces the controversy to a single question.

Whether a person who, with his own hounds, starts and hunts a fox on waste and uninhabited ground, and is on the point of seizing his prey, acquires such an interest in the animal as to have a right of action against another, who in view of the huntsman and his dogs in full pursuit, and with knowledge of the chase, shall kill and carry him away.
This is a knotty point, and should have been submitted to the arbitration of sportsmen, without poring over Justinian, Fleta, Bracton, Puffendorf, Locke, Barbeyrac, or Blackstone, all of whom have been cited: they would have had no difficulty in coming to a prompt and correct conclusion. In a court thus constituted, the skin and carcass of poor Reynard would have been properly disposed of, and a precedent set, interfering with no usage or custom which the experience of ages has sanctioned, and which must be [**11] so well known to every votary of Diana. But the parties have referred the question to our judgment, and we must dispose of it as well as we can, from the partial lights we possess, leaving to a higher tribunal the correction of any mistake which we may be so unfortunate as to make. By the pleadings it is admitted that a fox is a "wild and noxious beast." Both parties have regarded him, as the law of nations does a pirate, "hostem humani generis," and although "de mortuis nil nisi bonum" be a maxim of our profession, the memory of the deceased has not been spared. His depredations on farmers and on barnyards, have not been forgotten; and to put him to death wherever found, is allowed to be meritorious, and of public benefit. Hence it follows, that our decision should have in view the greatest possible encouragement to the destruction of an animal, so cunning and ruthless in his career. But who would keep a pack of hounds; or what gentleman, at the sound of the horn, and at peep of day, would mount his steed, and for [*181] hours together, "sub jove frigido," or a vertical sun, pursue the windings of this wily quadruped, if, just as night came on, and his stratagems [**12] and strength were nearly exhausted, a saucy intruder, who had not shared in the honors or labors of the chase, were permitted to come in at the death, and bear away in triumph the object of pursuit? Whatever Justinian may have thought of the matter, it must be recollected that his code was compiled many hundred years ago, and it would be very hard indeed, at the distance of so many centuries, not to have a right to establish a rule for ourselves. In his day, we read of no order of men who made it a business, in the language of the declaration in this cause, "with hounds and dogs to find, start, pursue, hunt, and chase," these animals, and that, too, without any other motive than the preservation of Roman poultry; if this diversion had been then in fashion, the lawyers who composed his institutes, would have taken care not to pass it by, without suitable encouragement. If anything, therefore, in the digests or pandects shall appear to militate against the defendant in error, who, on this occasion, was the fox hunter, we have only to say tempora mutantur; and if men themselves change with the times, why should not laws also undergo an alteration?

It may be expected, however, by [**13] the learned counsel, that more particular notice be taken of their authorities. I have examined them all, and feel great difficulty in determining, whether to acquire dominion over a thing, before in common, it be sufficient that we barely see it, or know where it is, or wish for it, or make a declaration of our will respecting it; or whether, in the case of wild beasts, setting a trap, or lying in wait, or starting, or pursuing, be enough; or if an actual wounding, or killing, or bodily tact and occupation be necessary. Writers on general law, who have favored us with their speculations on these points, differ on them all; but, great as is the diversity of sentiment among them, some conclusion must be adopted on the question immediately before us. After mature deliberation, I embrace that of Barbeyrac as the most rational and least liable to objection. If at liberty, we might imitate the courtesy of a certain emperor, who, to avoid giving [*182] offense to the advocates of any of these different doctrines, adopted a middle course, and by ingenious distinctions, rendered it difficult to say (as often happens after a fierce and angry contest) to whom the palm of victory belonged. [**14] He ordained, that if a beast be followed with large dogs and hounds, he shall belong to the hunter, not to the chance occupant; and in like manner, if he be killed or wounded with a lance or sword; but if chased with beagles only, then he passed to the captor, not to the first pursuer. If slain with a dart, a sling, or a bow, he fell to the hunter, if still in chase, and not to him who might afterwards find and seize him.

Now, as we are without any municipal regulations of our own, and the pursuit here, for aught that appears on the case, being with dogs and hounds of imperial stature, we are at liberty to adopt one of the provisions just cited, which comports also with the learned conclusion of Barbeyrac, that property in animals ferae naturae may be acquired without bodily touch or manucaption, provided the pursuer be within reach, or have a reasonable prospect (which certainly existed here) of taking what he has thus discovered an intention of converting to his own use.

When we reflect also that the interest of our husbandmen, the most useful of men in any community, will be advanced by the destruction of a beast so pernicious and incorrigible, we cannot greatly err in saying [**15] that a pursuit like the present, through waste and unoccupied lands, and which must inevitably and speedily have terminated in corporeal possession, or bodily seisin, confers such a right to the object of it, as to make any one a wrong-doer who shall interfere and shoulder the spoil. The justice's judgment ought, therefore, in my opinion, to be affirmed.
Judgment of reversal.


District Court, D. Massachusetts

8 F. 159; 1881 U.S. Dist. LEXIS 131

April 23, 1881
COUNSEL: [**1]
H. M. Knowlton, for libellant.
H. P. Harriman, for respondent.
OPINION: [*159] NELSON, D.J. This is a libel to recover the value of a fin-back whale. The libellant lives in Provincetown and the respondent 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 [*160] 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 recovered. The person who happens to find them on the beach usually sends word to Provincetown, and the owner comes to 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 [**2] the oil. The business is of considerable 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 swiftness, 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 circumstances described, owns it, and this right has never been disputed 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 with 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 [**3] 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 the libellant, but they knew or might have known, if they had wished, that it had been shot and killed with a bomblance, 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 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 [**4] 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 [*161] 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 ferae naturae, 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 property of the finder, unless the first taker should appear and claim it before it is cut [**5] 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 possession 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 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. Gifford, that the usage for the [**6] 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 concurred in for a long time by every one engaged in the trade.

In Swift v. Gifford, 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 [*162] it is likely to be much used, and if 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 appropriation that is possible in the nature of the case. Unless [**7] 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 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 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 [**8] 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.

Edwards et al. v. Sims, Judge.


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