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 Teagues purgation in the work-house, 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 cound not be committed of things real, or savouring of the reality. Black. 232. 2 Ray. 470. Hawkings, &c. So that taking away the soil was merely a trespass; and taking away water could be no more.
It was answered, that water being fluitans et mobilis, could not be considered real property; that an ejectment would not lie for water, but for so many acres of land covered with water, Velv. 143. 1 Burr. 142. Because it was impossible to give execution of a thing which is always transient and running, Run. 36. quotes Cro. Jac. 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, Titus, 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 advisare 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.