conſtitutions, appears to be the heir at law. Hence it follows, that, where the appointment is regularly made, there cannot be a ſhadow of right in any one but the perſon appointed: and, where the neceſſary requiſites are omitted, the right of the heir is equally ſtrong and built upon as ſolid a foundation, as the right of the diviſee would have been, ſuppoſing ſuch requiſites were obſerved.
But, after all, there are ſome few things, which notwithſtanding the general introduction and continuance of property, muſt ſtill unavoidably remain in common; being ſuch wherein nothing but an uſufructuary property is capable of being had; and therefore they ſtill belong to the firſt occupant, during the time he holds poſſeſſion of them, and no longer. Such (among others) are the elements of light, air, and water; which a man may occupy by means of his windows, his gardens, his mills, and other conveniences: ſuch alſo are the generality of thoſe animals which are ſaid to be ferae naturae, or of a wild and untameable diſpoſition; which any man may ſeiſe upon and keep for his own uſe or pleaſure. All theſe things, ſo long as they remain in poſſeſſion, every man has a right to enjoy without diſturbance; but if once they eſcape from his cuſtody, or he voluntarily abandons the uſe of them, they return to the common ſtock, and any man elſe has an equal right to ſeiſe and enjoy them afterwards.
Again; there are other things, in which a permanent property may ſubſiſt, not only as to the temporary uſe, but alſo the ſolid ſubſiſtance; and which yet would be frequently found without a proprietor, had not the wiſdom of the law provided a remedy to obviate this inconvenience. Such are foreſts and other waſte grounds, which were omitted to be appropriated in the general diſtribution of lands: ſuch alſo are wrecks, eſtrays, and that ſpecies of wild animals, which the arbitrary conſtitutions of poſitive law have diſtinguiſed from the reſt by the well-known appellation of game. With regard to theſe and ſome others, as
