APPENDIX TO PART TIIIPvD DIVISION I. 117 



shows what was considered, in the wisdom of the ancients, as right 

 and duty, in this case. The practice of mankind is apt to be too lax 

 on this subject; and, when occasion offers, courts ought to lay down 

 and enforce the just and benevolent lesson of morality and law. 



The verdict, in this case, being against law and evidence, can not be 

 supported. Judgment reversed. 



[Goff vs. Kilts (15 Wend., 550).] 



"The owner of bees which have been reclaimed, may bring an action 

 of trespass against a person who cuts down a tree into which the bees 

 have entered on the soil of another, destroys the bees and takes the 

 honey. 



"Where bees takes up their abode in a tree, they belong to the owner 

 of the soil, if they are unreclaimed, but if they have been reclaimed, and 

 their owner is able to identify his property, they do not belong to the 

 owner of the soil, but to him who had the former possession, although 

 he can not enter upon the lands of the other to retake them without sub- 

 jecting himself to an action of trespass." 



Error from the Madison common pleas. Kilts sued Goff in a justice's 

 court in trespass for taking and destroying a swarm of bees, and the 

 honey made by them. The swarm left the hive of the plaintiff, flew off 

 and went into a tree on the lands of the Lenox Iron Company. The 

 plaintiff kept the bees in sight, followed them, and marked the tree 

 into which they entered, i wo months afterwards the tree was cut 

 down, the bees killed, and the honey found in the tree taken by the 

 defendant and others. The plaintiff recovered judgment, which was 

 affirmed by the Madison common pleas. The defendant sued out a 

 writ of error. 



By the court, Nelson, J.: Animals ferae natural, when reclaimed by 

 the art and power of man, are the subject of a qualified property; if 

 they return to their natural liberty and wildnesa, without the animus 

 revertendi, it ceases. Daring the existence of the qualified property, 

 it is under the protection of the law the same as any other property, 

 and every invasion of it is redressed in the same manner. Bees are 

 ferce naturae, but when hived and reclaimed, a person may have a quali- 

 fied 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 speeies 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; bub 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. Un- 

 der these circumstances, no one else is entitled to take them. (2 Black. 

 Oomm., 393; 2 Kent's Comm., 31)4.) 



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 traits 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; that the bees therefore become again ferae naturae and 

 belong to the first occupant. If a domestic or tame animal of one per- 

 son should stray to the inclosure of another, the owner could not follow 

 and retake it without being liable for a trespass. The absolute right 



