5. CHAP. V.
THE Captain having been led to think
so much of law, of late, was struck
with the idea of visiting courts of justice,
and hearing some of those cases argued,
which come before them. Understanding
that a court was then sitting, he resolved
to take the opportunity of the interval
of Teague's purgation, in the workhouse,
to amuse himself with the pleading
of the advocates. Accordingly, repairing
to the court house, he took his place amongst
the crowd, and listened to what
was going forward.
What came before the court was a motion
in arrest of judgment. A Jonathan
Mun had been indicted, and found guilty
of “feloniously taking and carrying away
water out of the well of Andrew Mab.”
It was moved in arrest of judgment, that
larceny could not be committed of water
in a well, it being real property; for it
was a distinction of the common law, that
larceny could not be committed of things
real, or savouring of the realty, Black. 232.
2 Ray. 470. Hawkins, &c. So that taking
away the soil was merely a
trespass;
and taking away the water could be no
more.
It was answered, that water being fluitans,
et mobilis, could not be considered
as real property; that an ejectment would
not lie for water, but for so many acres of
land covered with water, Yelv. 143. 1
Burr. 142. Because it was impossible to
give execution of a thing which is always
transient and running, Run. 36. quotes
Cro. Jas. 150. Lev. 114. Sid. 151.
Thence it is that in a grant of the soil it is
necessary, as we see from old forms, to add
the right of ways, woods, and water-courses, Lilly. Con. 132. and 179. Bridg.
Con. 321. That whatever might be said
of water in its natural bed on the soil,
as water in a running stream; yet a well
being dug by the labour of hands, the
water thus acquired, must be counted as
personal, not real property. Barbcray,
Titius, and Locke. That at a well, the
water being drawn up by the bucket, and
thus by one act separated from the freehold,
and by another taken from the bucket,
it becomes a subject of larceny; as in
the law of corn, trees, or grass growing.
For if these be severed at one time, and
at another time taken away, it is larceny.
Hawk. Pl. Cr. 93.
It was replied, that an ejectment would
lie of water in a well; for here the water
is fixed in a certain place, within the
bounds and compass of the well; and is
considered as part of the soil. Run. 37.
That, ex vi termini, in the indictment,
“out of the well,” it must be considered
as water ex, out of, or from the well;
that is, water severed by the very act of
taking; for otherwise it would have been
expressed, by “water out of the bucket”
of Andrew Mab; not out of the well;
and so the taking could not be larceny,
but trespass; as in the case of a tree
that is cut down at one time, and taken
away at another; or apples growing on a
tree, or shaken down and gathered from
the soil; the first being a trespass, the second
larceny.
Curia advisari vult.
The Captain whispering to lawyer Grab,
enquired what difference it made in the
punishment, whether it was larceny or trespass?
He was answered, that in the one
case it was hanging by the common law,
and in the other to pay the value of the
property. A very material difference indeed,
said the Captain, to depend on so
nice a distinction.
