Blades v Higgs
| Jurisdiction | England & Wales |
| Judgment Date | 13 June 1865 |
| Date | 13 June 1865 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 1474
House of Lords
Mews' Dig. i. 193; iv. 1351; vii. 467; xiv. 233, 263. S.C. 34 L.J. C.P. 286; 12 L T 615; 13 W.R. 927; 11 Jur. N.S. 701; 20 C.B. N.S. 214; and, below, 12 C.B. N.S. 501 (Ex. Ch.) and of. 10 C.B. N.S. 713; 30 L.J. C.P. 347; 4 L.T. 551; 7 Jur. N.S. 1289. Cited, on point as to title to property, in Elwes v. Brigg Gas Co., 1886, 33 Ch.D. 568.
Game - Title to Property.
[621] WILLIAM BLADES,-Appellant; WILLIAM HIGGS and Another,-Respondents [May 16, 18, June 13, 1865]. [Mews' Dig. i. 193; iv. 1351; vii. 467; xiv. 233, 263. S.C. 34 L.J. C.P. 286; 12 L T 615; 13 W.R. 927 ; 11 Jur. N.S. 701; 20 C.B. N.S. 214; and, below, 12 C.B. N.S. 501 (Ex. Ch.) and of. 10 C.B. N.S. 713; 30 L.J. C.P. 347; 4 L.T. 551; 7 Jur. N.S. 1289. Cited, on point as to title to property, in Elwes v. Brigg Gas Co., 1886, 33 Ch.D. 568.] Game-Title to Property. Title to property created merely by the act of reducing a thing into possession, necessarily implies a reduction into possession effected by an act which is not in any way of a wrongful nature. Such an act, therefore, effected by one who is at the moment a trespasser, cannot create a title to property. 1474 BLADES V. HIGGS [1865] XI H.L.C., 622 Game chased and killed on the land of A., is his property. Therefore where a stranger, without A.'s permission, killed coneys on the land of A., and immediately took them up and carried them away, and sold them to a third person, it was held thatfthe servants of A. were justified in taking possession of them as being the property of A. Eigg v. Lonsdale, 11 Exc. 654; 1 Hurl, and N. 923, approved. Also Button v. Moody, 1 Ld. Raym. 250; Comyns, 34; 12 Mod. 144, 145. But, per Lord Chelmsford, as to the declaration in the latter case that " If A. starts a hare on the ground of B., and hunts it into the ground of C. and kills it there, the property is in A. the hunter "-Qu. This was an appeal under the Common Law Procedure Act, 1854. The case stated the following facts. In October 1850, the Appellant brought an action against the Eespondents for converting the Plaintiff's goods, that is to say, rabbits and dead rabbits. A second count charged them with assaulting him, and taking from him his goods, that is to say, rabbits and dead rabbits The Defendants pleaded, first, not guilty. Secondly, that the goods were not the Plaintiff's, as alleged. Thirdly, that the Plaintiff, at the time when etc., had wrongfully in his possession certain dead rabbits of and belonging to the Marquis of Exeter, without the leave and license, and against the will of the said Marquis, [622] that the Plaintiff was about to carry them away, and convert them to his own use, whereupon the Defendants, as servants of the said Marquis, after request and refusal, took them. The Plaintiff took issue on all the pleas, and also demurred to the third plea. The third plea having been held good, the case came on for trial before Mr. Justice Willes, at the summer assizes for Leicester, in 1861. It was then proved that the Plaintiff was a licensed dealer in game at Stamford; the Defendants were in the service of the Marquis of Exeter. On the 16th October 1860, the Plaintiff bought of a man named Yates two bags containing about 90 rabbits, and ordered them to be conveyed to him at the Midland Station at Stamford. These rabbits had been started, chased, and killed on the land of the Marquis of Exeter by persons who were strangers to him, and who, on killing the rabbits, at once put them into bags and carried them to the railway station at Ketton. They were sent thence to Stamford, and on their arrival at the latter place, the Plaintiff paid the carriage, and was about to take away the rabbits, when they were claimed by the Defendants as the property of the Marquis of Exeter, and were forcibly taken from the Plaintiff. In his charge to the jury, Mr. Justice Willes said that property in the land did not give a man property in animals of a wild nature upon it, after they had become old enough to escape from it. A verdict was found for the Plaintiff. A rule was afterwards obtained for a new trial, on the ground of misdirection, the learned judge having told the jury that, assuming the facts stated by the Plaintiff to be proved by the evidence, there was nothing to show that the right of possession of the rabbits was in the Marquis of Exeter. This rule was made absolute; and on appeal to the Exchequer Chamber the [623] decision was affirmed (12 Com. Ben., N.S., 501; 13 Com. Ben., N.S., 844). The present appeal was then brought. Mr. Serjeant Hayes and Mr. Beasley for the Appellant.-This case was decided in the Court below on the assumption that it was entirely governed by that of Lord Lonsdale v. Bigg (11 Exc. 654; 1 Hurl, and N. 923). That that case is not in point is quite clear. The sole question there was who was the owner of the soil; the question here raised was never put forward, nor was a single authority cited on it. The action there being for trespass on the land, the killing of the grouse was merely stated as an evidence of the act of trespass; it was no more valuable as affecting the right to go on the land than if they had been sparrows. [The Lord Chancellor: If grouse are flying in the air over my land, are they my property?] No. If while in the air they are killed by the act of another person, and taken away by him, they belong to him. Trespass might be maintained against him for being on the land, but the birds he shot by his act would be his. They were wild, and his act reduced them into possession. A notion once prevailed that wild birds were to be treated as part of the soil itself, and a bishop of London granted a lease for a term of years excepting therefrom trees, and the birds making nests in the trees; but where 1475 XI H.L.C., 624 BLADES V. HIGOS [1865] rights between two individuals were defined and restricted by contract, such a case can be no precedent for the present. The ordinary and well settled opinion of all writers on law was, that occupation was the principle on which all property was founded, and Mr. Justice Willes showed h'ow long that notion had been formally recognised, by a reference to [624] Justinian Institute (Bk. 2. tit. 1, s. 12). Precisely to the same effect is a passage in Bracton (Bk. 2, c. 1, s. 2). The doctrine was recognised by our law, with such exceptions only as the feudal law and the royal prerogative had introduced into it, as in the Swans' case (7 Co. Kep. 86). If creatures ferae naturae when shot are the property of the man on whose land they are shot, then the taking of them by a stranger would be larceny. But all the authorities show that that is not so. They are nulling in bonis (3 Inst. 109, 110; 2 East's Pleas of the Crown, 607; 2 Russ. on Crimes, Bk. 4, c. 10, s. 11, p. 280, Greave's Edit,; 1 Hale, P.C. 511). Nor could trover be maintained for them. It cannot be denied that wild animals are the property of no one while alive. If shot, and carried away at the moment, they become the property of the person who by shooting them reduced them into possession. [The Lord Chancellor: Suppose a poacher shot a rabbit, and hanged it up on a tree, and Tihere left it for hours, would it be his property? Could he come back and claim it?] There may be some difficulty on that point, which it is not necessary here to discuss. This case was supposed to be decided by the opinion of Lord Holt in Sutton v. Moody (1 Lord Raym. 250; 2 Salk. 556; Comyn. 34; 12 Mod. 144, 145; see S.C. 5 Mod. 375, where Justice Rokeby says, " It was in his own close, why should any one come there "), where he says, " If A. starts a hare in the grounds of B., and hunts it and kills it there, the property continues all the while in B.," but in fact that was only a mere dictum, and the principle that governed the decision of the case itself was that the property was all the time in the owner of the King's Forest, and Lord Holt shows this by...
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