laoc 



THE AMERICAN BEE-KEEPER 



195 



of a (lualilitHl pi-ojuM-ty: if they return 

 to their natural lilicrty and wiklness, 

 without the animus revertend. it 

 ceases. During thf I'xisteuce of the 

 qualitied itroperty. it is under the pro- 

 tection of the hiw the same as any 

 other property, and evory invasion of 

 it is redressed in the same manner. 

 Bees are ferae naturae, but wlien 

 hived and reehumed, a person may 

 have a qualified property in them by 

 the law of nature, as well as the c4vil 

 law. Occupation — that is, hiving or 

 euclosinc: them^ — gives property in 

 them. They are now a common spe- 

 cies of property, and an article of 

 trade, and the wildness of their na- 

 ture by experience and practice has 

 l»ecome essentially suljjected to the 

 art and power of man. An unre- 

 claimed swarm, like all other animals, 

 belongs to the lirst occupant — in other 

 words, to tlie person wlio first hives 

 them; but if a swarm fly from the 

 hive of another, his (piaiified property 

 continues so long as lie can keep them 

 in sight, and possess the power to 

 pursue them, l* Bl. Com.. 3U3: 2 Kent. 

 Com., 304. 



The tpiestion here is not between 

 the owner of the soil upon which tlie 

 tree stood tliat included the swarm 

 and the owner of the bees; as to him. 

 the owner of the bees would not i)e 

 aide to regain his property.or the fruits 

 of it without bt^ng guilty of trespass. 

 But it by no means f(jllows. from this 

 pre<licament. that the right to the 

 enjoy m':'nt of the property is lost; that 

 the 1)ees, tlierefore. become again fe- 

 rae naturae, and l)elong to the first 

 occupant. If a domestic or tame ani- 

 mal of one person should stray to the 

 enclosure of another, the owner could 

 not follow and retake it without Ijeing 

 liable for a trespass. The absolute 

 right of property, notwithstanding. 

 would still continue in him. Of this 

 there can 1)6 no douVit. So in respect 

 to the (piaiified property in the bees. 

 If it continued in the owner after 

 they liived themselves, and abode in 

 the liolloAv tree, as this qualified is 

 under the same pi-otection of law as 

 if absolute, the like remedy existed in 

 the case of an invasion of it. It can- 

 not. I think, be doubted, that if the 

 property in the swarm continues while 

 in 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 



thei-e under his observation and 

 charge. If a stranger has no right to 

 take a swarm in the former case, and 

 of which there seems u(i_question, he 

 ought not to l)e pei-mitted 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 a tree and all within it. 

 This may be true, so far as respects 

 an unreclaimed swarm. While it re- 

 mains 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 ra- 

 tione soli. According to the law of 

 nature, where prior occupancy alone 

 gave right, tlie individual who first 

 hived the swarm would -be entitled to 

 the property in it: but since the in- 

 sTitution of civil pioclety, and the reg- 

 ulation of the right of property by its 

 positive laws, the forest as well as 

 the cultivated field. l)elong exclusively 

 to the owner, who has acquired a 

 title to it under those laws. The nat- 

 ural right to the (Mijoyment or the 

 sjiort of liunting and fowling, wherev- 

 er ferae naturae, could be found, has 

 given Avay, in the progress of society, 

 to the establishment of rights of prop- 

 erty better defined and of a more dur- 

 able cliaracter. Hence, no one has a 

 riglit to invade the enclosure of an- 

 other for this purpose. He would be 

 a trespasser, and as such liaiile for the 

 game taken. An exception may exist 

 in tlie case of noxious animals, de- 

 structive in their nature. Mr. J. 

 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, the property 

 arising ratione soli. (2 Bl. Com.. 419). 

 But if animals ferae naturae that have 

 been reclaimed, and qualified property 

 obtained in them, escape into the pri- 

 vate grounds of another in a way that 

 does not restore them to their natural 

 condition, a ditferent rule obviously 

 applies. They are then not exposed to 

 become the proiierty of the first occu- 

 l)ant. The right of the owner contin- 

 ues, and although he cannot 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 regard- 

 ed, and reconciled as far as is con- 

 sistent with a reasonable protection 

 of each. The ca.ses of Heermance vs. 

 Yerney. G .Johns., 5, and Blake vs. Je- 



