155 



are the subject of n qualified pioi)erty; if tliey return to tlieir iiaturnl 

 liberty and wildness, without the animus revcrtendi, it ceases. Dining- 

 the existence ot the qualified property, it is under the protection of 

 the law the same as any other i^roperty and every invasion of it is 

 redressed in the same manner. Bees are /era; naturw, but when hived 

 and reclaimed a person may have a qualified property in them by the 

 law of nature, as well as the civil law. Occupation — that is, hiving- or 

 inclosing them — gives property in them. They are now a common spe- 

 cies of property and an article of trade, and the wildness of their 

 nature, by experience and practice, has become essentially subjected to 

 the art and power of man. An unreclaimed swarm, like all other wild 

 animals, belongs to the first occupant — in other words, to the person 

 who first hives them 5 but if the swarm fly from the hive of another, 

 his qualified property continues so long as he can keep them in sight, 

 and possesses the power to pursue them. Under these circumstances, 

 no one else is entitled to take them 2 Blade. Comm., 393; 2 KenVs 

 Comm., 391.) The question here is not between the owner of the soil 

 upon which the tree stood that included the swarm, and the owner of 

 the bees; as to him the owner of the bees would not be able to regain his 

 property, or the fruits of it, without being guilty of trespass,- but it by no 

 means follows, from this predicament, that the right to the enjoyment of 

 the property is lost; thatthebees therefore become again fcrwnaturw and 

 belong to the first occnpant. If a domestic or tame animal of one person 

 should stray t'o the inclosure of another, the owner conld not follow and 

 retake it without being liable for a trespass. The absolute right of prop- 

 erty, notwithstanding, would stillcontinue in him. Of this there can be 

 no donbt. So, in respect to the qualified property in the bees. If it con- 

 tinued in the owner after they hived themselves and abode in the hollow 

 tree, as this qualified interest is under the same protection of the law as if 

 absolute, the like remedy existed in thecase of an invasion of it. It can 

 not, I think, be doubted thatif the property in the swarm continues while 

 within sight of the owner — in other words, while he can distinguish and 

 identify it in the air— that it equally belongs to him if it settles upon a 

 branch or in the trunk of a tree, and remains there under his observation 

 and charge. If a stranger has no right to take the swarm in the former 

 case, and of which there seems no question, he ought not to be per- 

 mitted to take it in the latter, when it is more confined and within the 

 control of the occupant." 



Tliere is nothing to the contrary of this in Gillett vs. Mason (7 Johns. 

 IG), cited by the learned counsel for Great Britain. In that case a 



