156 



mere finder of bees claimed, as against one interested in the soil, the 

 rigiit to take tlieni, upon the ground alone that be had marked tlie 

 tree in whicli the boes were found. Unt the court decided that he 

 could not acquire ownership by merely marking" the tree, observing 

 that "the land was not his, nor was it in his possession," 



In Smith's Treatise on Personal Property, a work recently ])ublished, 

 the law is thus stated: "Another mode of obtaining title to personal 

 property by original acquisition, through occupancy, is by reclaiming 

 animals wild by nature, fercv naturcv. Wild animals belong to nobody 

 in particular ; yet they become the qualified property of any one who sub 

 jects them to his possession or power. The qualified property thus 

 acquired continues in the captor while possession or control is main- 

 tained, or until the animal becomes so far domesticated that it will not 

 vokintarily leave without the animus revcrtciidL When this i^oint is 

 reached, the qualified has riijened into ahsolute property, the nature of 

 the animal being changed from /me naturm to domiUc naturae, wikl to 

 tame. Until thus changed, and while in the possession or power of the 

 captor, his qualified property will be fully under the cognizance and pro- 

 tection of law; but if the animal escape and regain its natural freedom, 

 witlnmt the animus revertcndi, the captor's title is wholly lost, and any 

 other person may rightfully take the fugitive, thereby acquiring the 

 same qualified property i)ossessed by the first captor; and so on indefi- 

 nitely." After observing that the speculations of writers who attempt 

 to draw the dividing line between the two classes of ivnimals. wihl 

 and tame, and referring to animals that are classed as wild, the 

 author proceeds: "Belonging to the latter [wild] class, are, hovv'cver, 

 some of an exceptionally mild tyj)e that frequently become domesti- 

 cated, and hence absolute property in their owners; among which are 

 deer, horses, rabbits, doves, and others of like character. Honej bees 

 areferw naturw; but, when reclaimed and hived, they become the sub- 

 jects of qualified property. * * If bees when hived escape, or a 

 swarm departs from the hive, the owner does not lose his property in 

 them so long as he irarsues and is able to identify them. While prop- 

 erty in wild animals can be acquired only by occupancy, actual or con- 

 structive, an actual taking is not always necessary to create title; it is 

 sutficient if the pursuer bring the animal within Jiis power or control^ 

 Sec. 37. 



Fiom the princi]>les thus announced by courts and Jurists, this rule, 

 at least, may be fairly dediu;ed as resting in sound reason, in natural 



