THE ADVOCATE 503
VOL. 79 PART 4 JULY 2021
(1) per industriam;
(2) ratione impotentiae et loci; or
(3) ratione soli and ratione privilegii.
This qualified property is defeasible, for if the animal has no intention
to return, but resumes its wildness and is at large again and not
under pursuit, it is free and may be taken by another person. Thus
the special right of property, called qualified property, if conferred
ratione impotentiae et loci, ratione soli or ratione privilegii, is in
substance an exclusive right to reduce the wild animal into possession,
but if acquired per industriam it is an exclusive right to the possession
of the wild animal which, in the case of a living animal, will
continue while it has the intention to return.”
The Roman jurist Gaius7 stated that “all animals taken on land, sea, or in
the air, that is wild beasts, birds, and fish, become the property of those who
take them”, but “when they escape from our control and return to their natural
state of freedom, they cease to be ours and are again open to the first
taker”.8
These principles followed into the English common law, so that Bracton
expressed similar principles regarding wild animals.9
A case reported by Edward Coke,10 in which he represented Queen Elizabeth
I, held that the monarch of England owns all whales and sturgeon as
“Royal Fish”.11
Sir Timothy Lloyd also referred to the Supreme Court of Canada’s decision
in The Ship “Frederick Gerring Jr.” v. The Queen.12 One of the issues in
that case was whether the vessel Frederick Gerring Jr., on the day upon
which it was seized, had laid seine for the purpose of catching fish in the sea
well outside of the line constituting the limit of three marine miles from the
coast of Nova Scotia. A large quantity of mackerel had been collected in a
seine and the crew proceeded to bale the fish from the seine into the vessel
while the vessel moved to within the three mile limit. The question was
whether “fishing or catching fish” was happening within the limit, as it was
argued that the fishing was complete when the fish were within the seine.
Girouard J. referred to Young v. Hichens,13 a case decided in 1844 that
found the defendant was not liable for the plaintiff’s loss of the fish because,
at the critical moment, the plaintiff had not yet taken possession of the fish,
which he could only do by closing the net. After considering the analysis of
Roman law scholars (with whom Sedgewick J. and King J. for the majority
agreed), the court found that the process of fishing was not yet complete
while the fish were being baled out from the seine into the vessel. Girouard
J. spoke of the process continuing until the moment when the fish are actually
captured: