118 ARGUMENT OF THE UNITED STATES. 



of property, notwithstanding*, would still continue in him. Of this 

 there can be no doubt. So in respect to the qualified property in the 

 bees. If it continued in the owner alter they hived themselves and 

 abode in the hollow tree, as this qualified interest is under the same 

 protection of law as if absolute, the like remedy existed in case of an 

 invasion of it. It can not, I think, be doubted that if the property in 

 the-swarm continues while within sight of the owner — in other words, 

 while lie can distinguish and identify it in the air — that it equally be- 

 longs 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 permitted to take it in the latter, when 

 it is more confined and within the control of the occupant. 



It is said the owner of the soil is entitled to the tree and all within it. 

 This may be true, so far as respects an unreclaimed swarm. While it 

 remains there in that condition, it may, like birds or other game, (game 

 laws out of the question) belong to the owner or occupant of the forest, 

 ratione soli. According to the law of nature, where prior occupancy 

 alone gave right, the individual who first hived the swarm would be 

 entitled to the property in it; but since the institution of civil society, 

 and the regulation of the right of property by its positive laws, the 

 forest as well as the cultivated field, belong exclusively to the owner, 

 who has acquired a title to it under those laws. The natural right to 

 the enjoyment of the sport of hunting and fowling, wherever animals 

 ferce natures could be found, has given way, in the progress of society, 

 to the establishment of rights of property better defined and of a more 

 durable character. Hence no one has a- right to invade the enclosure 

 of another for this purpose. He would be a trespasser, and as such 

 liable for the game taken. An exception may exist in the case of nox- 

 ious animals, destructive in their nature. Mr. J ustice Blackstone says : 

 If a man starts game in another's private grounds, and kills it there, 

 the property belongs to him in whose ground it is killed, because it was 

 started there, the property arising ratione soli. (2 Black. Com., 419.) 

 But if animals ferce naturae that have been reclaimed, and a qualified 

 property obtained in them, escape into the private grounds of another 

 in a way that does not restore them to their natural condition, a dif- 

 ferent rule obviously applies. They are then not exposed to become 

 the property of the first occupant. The right of the owner continues, 

 and though he can not pursue and take them without being liable for 

 a trespass, still this difficulty should not operate as an abandonment of 

 the animals to their former liberty. 



The rights of both parties should be regarded and reconciled, as far 

 as is consistent with a reasonable protection of each. The case of 

 Heermance vs. Vernay (6 Johns. B., 5), and Blake vs. Jerome (II id., 

 406), are authorities for saying, if any were wanted, that the inability 

 of the owner of a personal chattel to retake it while on the premises 

 of another, without committing a trespass, does not impair his legal 

 interest in the property. It only embarrasses the use or enjoyment of 

 it. The owner of the soil, therefore, acquiring no right to the property 

 in the bees, the defendant below can not protect himself by showing it 

 out of the plaintiff in that way. It still continues in him, and draws 

 after it the possession sufficient to maintain this action against a third 

 person, who invades it by virtue of no other claim than that derived 

 from the law of nature, This case is distinguishable from the cases of 

 Gillctt vs. Mason (7 Johns. B., 10), and Ferguson vs. Miller (1 Cowen, 

 243). The first presented a question between the finder and a person 



