BEES. 17 



them; and in these circumstances no one else is entitled to 

 take them." ^^ He then speaks of the theory that ownership 

 in bees is ratione soli, referred to in § 4, supra. So in the 

 civil law, if a swarm of bees had flown from A.'s hive they 

 were reputed his so long as they remained in sight and might 

 easily be pursued, but they do not become private property 

 until they are actually hived.^^ 



If a person finds a tree containing a hive on another's land 

 and marks it with his initials, he does not reclaim the bees and 

 vest the exclusive property in himself, especially as against 

 one of the heirs, nor does he acquire the right to bring an 

 action of trespass for cutting down the tree and carrying 

 away the bees and honey.®* Nor is the interest of one who 

 finds bees on the land of another and hives them, but is not 

 the owner of the hive, the subject of larceny.*" And al- 

 though one who discovers bees obtains a license from the 

 owner of the soil to take them and mark the tree with his own 

 initials, he gains no property till he takes possession, nor can 

 he maintain trespass against a third person who takes pos- 

 session of them on a subsequent license from the owner of 

 the soil. The two licensees stand on an equal footing and he 

 who first takes possession becomes the owner. ®® But one 

 who has obtained a tacit consent from the owner of the soil 

 to cut down the tree and get the honey has, while in the act 

 of cutting down the tree, a superior right over a third person 

 to whom the owner has given subsequent consent, but with- 

 out revoking the former's authority. "These parties stand, 

 as between themselves and as respects the legal principles ap- 

 plicable to the case, in precisely the same position as though 



^2 Bl. Com. 392. See also Idol v. Jones, 2 Dev. L. (N. C.) 162; 40 

 L. R. A. 687 n. 



"'Justin. Inst. 2, l, 14, cited in 2 Kent Com. 349. 



" Gillet V. Mason, 7 Johns (N. Y.) 16. And see Merrils v. Goodwin, 

 I Root (Conn.) 209; Fisher v. Steward, Smith (N. H.) 60. 



"'' State V. Repp, 104 la. 305. 



.''° Ferguson v. Miller, i Cow. (N. Y.) 243. And see the comments on 

 this case in Goff v. Kilts, quoted infra. 

 2 



