134 



American Hee Journal 



the common rights of all the com- 

 munity alike; a private nuisance is 

 one affecting a single individual, or 

 individuals of a particular class, 

 group, or locality, in a private right; 

 the third class, referred to at mixed 

 nuisances, are public in their nature, 

 but at the same time specially in- 

 jurious or detrimental to one individ- 

 ual or more in particular, who suffer a 

 different or greater hurt than the 

 community in general. 



Nuisances are further divided into 

 nuisances per se, or such as are de- 

 clared so by the common law or by 

 some statute, without regard to lo- 

 cality, surroundings, or circumstances, 

 and nuisances per accidens, or those 

 owing their hurtful consequences to 

 some particular attendant circum- 

 stance, surrounding, location or condi- 

 tion, without which they would not be 

 unlawful. There are other less import- 

 ant and rather technical distinctions 

 not necessary to be noticed here. The 

 foregoing preliminary and very ele- 

 mentary observations of the general 

 law of nuisances are necessary to a 

 consideration of any subject with 

 reference to its existence as a nui- 

 sance or otherwise. 



It is also a frequent statement of 

 the law, and may be accepted as 

 authoritative, that no lawful occupa- 

 tion or business is a nuisance per se, 

 except it be declared so by some spe- 

 cial enactment prohibiting certain 

 things as objectionable to particular 

 localities. So also the reasonableness 

 of the use of one's property may de- 

 pend upon its situation, for what 

 might be lawful in one locality would 

 prove intolerable in another. The use 

 of a building in the midst of a city 

 densely populated for a storage house 

 for hardware would not be objection- 

 able in the slightest degree, while the 

 use of the same building for the stor- 

 age of gunpowder or other high ex- 

 plosives could not be permitted. 



The common law, proceeding from 

 fixed principles of universal ftppllca- 

 tion, and developing from the growth 

 of civilization, has, in each succeed- 

 ing period, found ready adjustment 

 to new subjects resulting from the 

 widening dominion of mankind over 

 the creatures and forces of nature, 

 furnishing a ready remedy for every 

 wrongful encroachment of one upon 

 the rights of another. In the times of 

 the early law writers bees were most 

 generally known as they existed in 

 their original state. Hence they were 

 called — ferae naturae — and classed as 

 wild animals. A property right, or 

 at least a qualified property right, in 

 them could be acquired by capture, 

 which, in accord with the general rule 

 concerning wild animals, existed so 

 long as the captor could hold them 

 in possession. A distinction seems al- 

 ways to have been made between the 

 possession of animals ferocious and 

 those of gentler dispositions, and it 

 was indictable as a nuisance to per- 

 mit an animal of known mischievous 

 disposition to go at large. Bees, how- 

 ever, seem never to have been regard- 

 ed as ferocious or as likely to do in- 



jury to persons or property, and in 

 the far greater number of instances 

 in which they have been the subject 

 of judicial consideration the questions 

 at issue have concerned the property 

 interests in them. It is doubtful now, 

 however, if any court would denomi- 

 nate them as wild animals, in view of 

 the present general state of develop- 

 ment of the industry of honey produc- 

 tion and the numerous instances of 

 State legislation designed to promote 

 and protect the breeding and rearing 

 of bees for that purpose. In the one 

 or two cases decided in American 

 jurisdictions in which the question 

 has been presented, it has been de- 

 termined, in accordance with the rule 

 above referred to, that the keeping 

 of bees, even in large numbers and 

 in towns and villages, is not a nui- 

 sance per se. 



But greater interest, perhaps, cen- 

 ters in the question of whether or not 

 bees may be so kept as to constitute 

 a private nuisance, and also whether 

 municipal corporations, as cities and 

 towns, may restrain or prohibit their 

 presence within the corporate limits. 

 In answering the first proposition, it 

 must be borne in mind that persons 

 who dwell in urban communities must 

 of necessity submit to such restric- 

 tions upon their absolute liberties 

 that the dwellings of other persons 

 therein shall be tolerable. As it is the 

 unreasonable or unwarrantable use 

 of one's premises or property, other- 

 wise lawful, that contributions an es- 

 sential element of a nuisance, a first 

 inquiry in any case would be directed 

 to this point of reasonableness of the 

 use or occupation, and in determing 

 this all of the surrounding facts and 

 circumstances would enter into the 

 consideration. The presence of one 

 colony at a given point might be per- 

 fectly consistent with the due ob- 

 servance of the rights of the owner 

 of the next lot, while a colony sta- 

 tioned at another point within the 

 same distance would be obnoxious to 

 the law. Again, one colony at a given 

 place might pass unnoticed, while a 

 number of colonies at the same place 

 would be a nuisance. The habits of 

 the bees, the line of fiight, the temper 

 and disposition of the colonies, either 

 separately or when collected together 

 in numbers, might all furnish matter 

 of more or less weight in reaching a 

 conclusion. So also the character of 

 the annoyance or injury done to the 

 complainant must be a substandal ele- 

 ment. In the only reported case in- 

 volving this question it was charged, 

 and the court found there was proof, 

 "that during the spring and summer 

 months the bees so kept" — 140 colo- 

 nies on an adjoining city lot and 

 within 100 feet of plaintiff's dwelling 

 — "by defendants greatly interfered 

 with the quiet and proper enjoyment 

 and possession of plaintiff's premises, 

 driving him, his servants and guests 

 from his garden and grounds, and 

 stinging them, interfered with the en- 

 joyment of his home, and with his 

 family while engaged in the perform- 

 ance of their domestic duties, soiling 



articles of clothing when exposed on 

 his premises, and made his dwelling 

 and premises unfit for habitation." 

 These facts were held to constitute 

 a nuisance, against which the plain- 

 tiff' was entitled to injuction and 

 nominal damages. These facts just 

 recited, however, probably present an 

 extreme case, the immediate proximi- 

 ty of so many colonies being, no 

 doubt persuasive evidence that the 

 annoyance suffered by the plaintiff 

 was due to the defendant's use of his 

 premises. Greater difficulty would be 

 experienced in reaching such a conclu- 

 sion if there were no colonies sta- 

 tioned in the immediate vicinity, a 

 thing entirely possible under the com- 

 mon belief that the insects go con- 

 siderable distances for their stores. 



So it may be said of bees, as of 

 other property, that no hard and fast 

 rule can be laid down by which to de- 

 termine in advance whether the pres- 

 ence of bees in any given numbers or 

 at any given point will amount to a 

 nuisance. But, not being a nuisance 

 of themselves, as a matter of law, andj 

 absent also any general State enact- J 

 nient declaring them to be such, beesj 

 will not, under any circumstances be] 

 presumed to be a nuisance, but the I 

 matter will rest in the proof adduced, j 

 with the burden upon the party alleg- 

 ing the affirmative. But they may,] 

 upon proof of particular facts show- 

 ing all the elements necessary to the 1 

 existence of a nuisance, be condemned 

 as such, either of a private or public 

 character, as the nature of the In- 1 

 jury might decide. 



Predicated upon the theory advanced I 

 in the beginning that courts would | 

 now, if the matter were called in j 

 question, decide that bees are domestic I 

 animals, and it having already be- 

 come a matter of legislative recogni- 

 tion that they are subject to com- 

 municable diseases, a question arises 

 as to the liability of the keeper of 

 diseased bees. At common law it was 

 an indictable offense, which has been 

 re-enacted by statute in most of the 

 States, to take a domestic animal suf- 

 fering from a communicable disease 

 into a public place or to turn it into 

 the highway so that the disease might 

 be communicated to the animals of 

 other persons. It could hardly be 

 said to be less culpable to knowingly 

 keep diseased bees, which, by their 

 nature may not be restrained or con- 

 fined, to spread disease to the apiar- 

 ies of other owners. If to turn a 

 horse with glanders or a sheep with 

 footrot into the highway is a public 

 nuisance, on the same reasoning to 

 turn bees at large to carry communi- 

 cable diseases peculiar to them to 

 other bees ought to be an offense of 

 the same grade. 



The power of a municipal corpora- 

 tion, as a town or village, to restrain 

 or prohibit within its limits the keep- 

 ing of bees, or to denounce them as a 

 nuisance, is commonly reported as a 

 fruitful source of vexation to keepers 

 of bees, but one case only is reported 

 as involving a judicial determination 

 of that particular point. And here. 



