altogether to B. In Justinian's legislation, it belonged one-half to the owner of the land where found, and one-half to the finder, though if the finder found it wholly on his own land, it belonged to him. In Bracton's time, in England, it belonged wholly to the king; and the same view is stated by Lord Coke in his Institutes.1 Bracton takes the distinction that by "natural right" treasure trove belongs to the finder, while by "the law of nations" (meaning apparently positive law) it belongs to the king. The reason why it belonged to the king, apparently, is that it is a case of goods without an owner (bona vacantia), as in the case of one dying intestate without next of kin. Such property passes either to the church or to the king, and the better opinion is, to the latter. The king might grant it to a private person. Mines of metal belong to the owner of the soil, except gold and silver, which also by common law belong to the king. The charge of treasure trove belongs to the coroner acting for the king. In this country, the State would succeed to the rights attributed in this section to the king. It has been said that if a man find in the sea precious stones of which no man was ever proprietor, these do not belong to the king, but to the finder. But it seems that this rule will not be applied to Spanish dollars found in the sands of the seashore, as they will be presumed to have come there by the loss of some wrecked vessel. On the general subject reference may be made to the authorities cited in the note.5 Estrays or strays are names applied to domestic animals, being at large and without the possession of their owner. The general rules of finding are applicable when the owner is not known. If, however, the owner is ascertained, the finder will at most only have a claim for the necessary expenses of keeping the property. Straying animals may, however, be regarded from the point of view of the public inconvenience of their being at large in the highway, or as trespassers upon the property of others. From these points of view, the matter of their detention by placing them in an enclosure or "pound" becomes important, and the consequent right of a pound-keeper to hold or detain them until charges and damages are paid. This subject is largely regulated by statute in the respective States. It has of late years lost much of its importance, owing to the increased efficiency of laws ex 13 Coke's Inst. 132. 2 The legal maxim was, "Quod non capit Christus, capit fiscus." See Atty-Gen'l v. Köhler, 9 H. L. Cas. 654. 8 Laws of Oleron, Art. 34; 2 Black Book of the Admiralty, pp. 470, 471. Talbot v. Lewis, 6 C. & P. 603. 5 3 Coke's Inst. 132, 133, cap. 58; 2 Id. 168; 20 Viner's Abr. 414, 415. 6 Amory v. Flyn, 10 Johns. 102. cluding cattle from running in the highways. The recent cases are mainly based upon the correct construction of the local statutes, and are for the most part not of general interest. A case may, however, be referred to where the question was raised whether a statute authorizing cities to restrain animals from running at large, and to sell them in a prescribed way for the recovery of a penalty and costs, was a violation of the constitutional rule that one is not to be deprived of his property without due process of law. It was decided that under the circumstances it was not.1 (a) Wreck is the legal term applied to property lost or shipwrecked at sea and cast up on the shore. Bracton treats of this subject, and states that the proper application of the word "wreck" is to the case where the ship is broken up, from which no living thing has escaped, and principally if the owner of the article has been drowned. Whatever comes to land therefrom shall be the property of the king, nor shall any one else claim or have anything thereof from the king, although he may have land near the shore of the sea, unless he enjoy a special privilege concerning wreck. This rule seems to be based on the supposition that the owner is not known (bona vacantia), so that it is only a question between the finder and the king. Bracton proceeds to say, "unless it be that the true owner coming from elsewhere may show by certain marks and signs that the things are his property, as if a live dog has been found, and it can be proved that he is the owner of the dog, it is thereupon presumed that he is the owner of the dog and of the things. And in the same way, if certain signs have been affixed to the merchandise and other things."2 This is written of the common law, and is in substance, that if the owner cannot be found, the wreck vests in the king; but if he can be shown by certain signs or marks, the property shall belong to him. The Statute of Westminster (3 Edw. I. c. 4) states that it is agreed that where a man, a dog, or a cat escape "quick" (meaning alive) out of the ship, that such ship, &c., is not to be adjudged a wreck, but the goods shall be kept for the owner and restored to him, if he make claim within a year and a day, and if not, they shall remain to the king. The correct view seems to be that the animals named are put as instances, and that the question of ownership is merely matter of evidence. 1 Fort Smith v. Dodson, 46 Ark. 296. Strays in New York are regulated by 2 R. S. 517-522. Code of Civ. Proc. §§ 30823115. (b) (a) Burdett v. Allen, 35 W. Va. 347; Coyle v. McNabb, 18 S. W. Rep. (Tex.) 198. (b) See also Art. VI. ch. 569, Laws of 2 2 Bracton (Twiss' ed.) 273. 8 Hamilton v. Davis, 5 Burr. 2732; Bailiffs, &c. of Dunwick v. Sterry, 1 B. & Ad. 831, 844. 1890, as amended by ch. 254, Laws of 1891, and chs. 61, 92, and 252, Laws of 1892. The matter of wreck is in general a question of jurisdiction between the courts of admiralty and common-law courts. The admiralty jurisdiction subsists so long as the shore is covered with water; rights enforceable in the common-law courts exist only when the land is left dry. A ship cannot be considered a "wreck" (or wreccum maris) unless at the time of taking possession she is either on the shore or left high and dry on land. Accordingly, a log of wood found floating in the sea near the shore, and drawn up on a rock by a person wading into the water, is not "wreck," but an incident to admiralty jurisdiction,—a droit of the admiralty. The same rule would be applied to a log cast upon the beach but carried back to sea by the next tide and taken while floating.2 Grants of "wreck" are made at times in England within a specified territory, in which case the grantee has a special property so as to prevent a wrongdoer from taking wrecked property away, though as between him and the owner the latter may have the title. A wreck may become an obstruction on the seashore, and the public welfare may demand its removal. This is provided for in England, and the public authorities have power to destroy and remove sunk, stranded, and abandoned vessels in any fairway or on the seashore under specified circumstances. The statute applies to the cargo, stores, etc., as well as to the vessel itself. There is, in New York, a statute regulating wrecks and proceedings with reference to them in much detail. The statute includes goods cast by the sea or any inland lake or river upon the land, and provides modes for ascertaining title to the wrecked property, for salvage claims, sale, etc. (b) SECTION II. Finding at Sea. The common-law meaning of the term "sea" is that part of the ocean or tributary rivers where the tide ebbs and flows. In the United States an enlarged meaning has been given by the courts to the jurisdiction of courts of admiralty, and waters in fact navigable have been included in the term "sea," though above tide water. "Derelict property," in the admiralty branch of the common law, means property at sea abandoned by its owner. On the other hand, if the property, though abandoned, be cast up high and dry 1 The Pauline, 2 Rob. Adm. 358. 2 Stacpoole v. The Queen, 9 Ir. R. Eq. 619 (Ch. App.); Palmer v. Rouse, 3 H. & N. 505. (a) Amended by 52 & 53 Vict. c. 5 (1889). (b) Ch. 569, Laws of 1890, as amended 8 Bailiffs, &c. of Dunwick v. Sterry, 1 B. & Ad. 831. 4 40 & 41 Vict. c. 16. (a) by ch. 254, Laws of 1891; and chs. 61, 92, and 252, Laws of 1892, §§ 137-150. on the shore, it is "wreck," and not derelict. It would accordingly seem that the law of "derelict" in this country would accompany the expanded meaning of admiralty jurisdiction. The case of saving derelict property is quite different from that of "finding" on land. The rules of the admiralty or maritime law prevail. No contract is necessary to entitle the salvor to compensation. The maritime law regards the nature and value of the services rendered by the salvor to the property saved, rather than the question whether he rendered the services through the medium of a contract with the owner. Still, even in the maritime law, if the property be not derelict, a contract is necessary as a basis for compensation. The important fact to constitute "derelict" is abandonment. Abandonment depends largely on intention. The master and crew must leave the ship with intention not to return. This point is highly important, for if the ship be utterly abandoned, the salvors have an exclusive right to possession; if not, the salvors are bound, on the master's return, to give up the charge to him, whereupon he may refuse to continue to employ them, and may employ others.2 Abandonment is accordingly largely a question of fact, and all the circumstances must be considered in determining the intention. Some authorities are referred to in a note.2 (a) Derelict applies to all property abandoned at sea, though not having been on a ship, as the term is ordinarily understood. Thus, the obelisk known as "Cleopatra's Needle," having been abandoned in a vessel constructed entirely for the purpose of conveying the obelisk from Alexandria to England, was declared derelict. The court fixed the value of the obelisk at £25,000 sterling.1 The amount awarded to salvors in the case of "derelict" is usually large, and is frequently about one half of the value of the 1 The Pauline, 2 Rob. Adm. 358; Stacpoole v. The Queen, 9 Ir. R. Eq. 619. Ante, p. 477. 2 The Champion, Brown. & Lush. 69. 3 A laden barge accidentally breaking loose from her moorings in a navigable river, and drifting about with no one on board, is not derelict. The Zeta, L. R. 4 Adm. & Ecc. 460. There is no intent to abandon in this case. For a similar reason, if, on an alarm attending a collision, the crew of (a) See also The Ann L. Lockwood, 37 Fed. R. 233; The Eleanor, 48 Id. 843; The Fairfield, 30 Id. 700; A Lot of Whale one vessel jump on board the other, the bone, 51 Id. 916; The Lepanto [1892], P. 122; The Capella [1892], P. 70. property saved. The amount depends upon the meritorious character of the services. Some instances are cited in the note.1 There is, however, no fixed rule; but the nature of the service, the risk run, and losses voluntarily incurred by salvors may be taken into account where the value of the property saved is ample.2 In some cases even more than half may be awarded. The residue belongs to the owner, if he can be ascertained; if not, it becomes public property, and is termed a "droit of the admiralty." DIVISION III. - Title by mere Occupancy. There is a number of cases which may be grouped together in this connection, involving the appropriation by an individual to his own use of things which, without such appropriation, would be without an owner. The law permits items to be separated in this way from the mass of unappropriated things, and to become by appropriation private property. Instances of some importance are gains obtained by hunting and fishing, appropriation of ice formed in navigable streams, etc. Legal questions may arise as to the point whether occupancy has become so complete as to confer ownership. - The principle, as stated in the Roman law, is, that "wild animals, birds, and fish, that is to say, all the creatures which the land, the sea, and the sky produce, as soon as they are caught by any one become at once the property of their captor." This rule may be modified by game laws, but the Romans had no game laws. The principle may also be qualified in our law, as has been shown before, by the fact that the captor was at the time a trespasser upon the land of another, and took the animals there.5 The act of capture may be complete or inchoate. In the latter case the title does not pass unless the animal is brought within the power of the captor, as, for example, by being killed, or so wounded or entangled in nets, etc., that he cannot escape. It will not be sufficient to wound an animal and to send the hunter's dog in pursuit, even though the animal be captured by the dog. It must have come into the possession of the hunter. 8 The Rasche, L. R. 4 Adm. & Ecc. 127 (1873). 1 Property worth £5,100, salvage The City of Chester, L. R. 9 P. D. awarded £2,300, The Craigs, L. R. 5 182. P. D. 186; property worth £750, salvage £360, The Hebe, L. R. 4 P. D. 217; property valued at about £2,800, salvage £900, The Andrina, L. R. 3 Adm. & Ecc. 286; one half the value awarded, The Livietta, L. R. 8 P. D. 24. 2 Bird v. Gibb, L. R. 8 App. Cas. 559; 4 Institutes of Justinian, Book II. Title I. § 12 (Moyle's ed. Vol. 2). 5 Pierson v. Post, 3 Caines, Term R. (N. Y.) 175. Ante, p. 450. 6 Buster v. Newkirk, 20 Johns. 75. |