Opinion
November 17, 1797.
Attorney General in his conclusion observed that the fish were found in defendant's possession, because every thing above and below the soil belongs to the possessor of the soil.
Wilson after the argument was over applied to the court on this subject, but BASSETT, C. J., told him he might save himself the trouble on that point.
Evidence that the fish were found buried near his well fifteen yards from defendant's house; no evidence that he knew they were there.
Gentlemen, there is no doubt there ought to be evidence to prove that defendant took and carried away before he is convicted. There is no need of positive proof, but it ought to be sufficient to satisfy you the party did the fact. It does not follow that because a man is possessed of a piece of ground that he is possessed of everything in and upon it; for unless he knows and consents to a thing's being there, he is not in possession of it.
Verdict guilty.
[NOTE.] Defendant's character was bad.
N.B. Mr. Attorney's position is too extensive. The rule, usque ad caelum et infernos, only relates to appurtenances, and although knowledge and consent are good prima facie evidence of possession, yet I think the Court should not have suffered the Attorney General's rule to have extended to such kind of property, although qualified with their exception, for it is not so found in the books.