Gillet v. Mason — 7 Johns. 16

Majority

p. 16

Gillet against Mason.

NEW-YORK,

Nov. 1810.

Headnote

Sees tarefera natura; anti until hived and r=claimed, no propevty can be acquired in them. rinding a tree another,la"o'1-°t tammg a. swarm at bees, and marking' the tree with the initials of the finder’s name, is not reclaiming does it "vest "in Sciusive61 rigft of property m the finder main-against a per-ting down the kg6 aáwaya‘t¡ié 1,K°eE- ■ ‘

IN error, on certiorari, from a justice’s court.

e Mason declared against Gillet, before the justice, in an . _ r . , . . action or trespass, for cutting down a tree containing a c , , . .it i i swarm of bees, and carrying away the bees and honey, which the plaintiff below had before found, and bad marked the tree with the initials of his name. . .

Gillet pleaded the general issue : and there was a trial by jury.

, , , , . Mason proved, that previous to bringing this suit, he had found a tree, containing a swarm of bees, standing on the land of Timothy Gillet, lately deceased, father of tbe defendant; that he marked the tree with the initials of his name, A. M.; that the defendant had cut down the tree, and taken and carried away the bees and honey; and that the tree contained a large swarm of bees, and a large quantity of honey, of the value of 10 dollars.

It was admitted by the plaintiff, that the land where the tree stood, belonged to Timothy Gillet; but it was denied that the defendant was his heir, or had any possession of the land. It was admitted that the defendant was a son of Timothy Gillet. The justice, in charging the jury, put the cause on the point, which of the parties first, reclaimed the bees from a wild state

p. 17

and the mry found a verdict for the plaintiff below, fpr . ... nine dollars.

Bees are considered by Judge Black stone, (2 Com. 392.) as feres natures; but when hived and reclaimed, a qualified property may be acquired in them. . Occupation of them, according to Bracton, that is hiving or enclosing them, gives the property in bees. In the present case, it appears the bees were not hived before they were discovered by the defendant in error, and the only act he did was to mark the tree. The land ■was not his, nor was it in his possession. Marking the tree did not reclaim the bees, nor vest an exclusive right of property in the finder, especially in this case, against the plaintiff in error, .who, as one of the children of Timothy Gillet, (who does notv appear to have made a will,) must be considered as one of the heirs, and, as such, a tenant in common in the land. Blackstone (vol 2. p. 393.) inclines to the opinion, that under the Charter of the Forest, allowing every freeman to be entitled to the honey found within his woods, a qualified property may be had in bees, in consideration of the soil whereon they are found, pr an ownership, rations soli. According to the civil law, (Just. Inst. lib. 2. tit. 1. s. 14.) bees which swarm upon a tree, are not private property, until actually hived; and he who first encloses them jna hive, becomes their proprietor.

Judgment reversed.