Goff v. Kilts

[551] By the Court, Nelson, J. Animalsferce natures, when reclaimed by the art and power of man, are the subject of a qualified property ; if they return to their natural liberty and wildness, without the animus revertendi, it ceases. During the existence of the qualified property, it is under the protection of the law the same as any other property, and every invasion of it is redressed in the same manner. Bees arefercenaturce, but when hived and reclaimed, a person may have a qualified property in them by the law of nature, as well as the civil law. Occupation, that is", hiving or enclosing them, gives property in them. They are now a common species of property, and an article of trade, and the wildness of their nature by experience and practice has become essentially subjected to the art and power of man. An unreclaimed swarm, like all other wild animals, belongs to the first occupant—in other words, to the person who first hives them; but if a swarm fly from the hive of another, his qualified property continues so long as he can keep them in sight, and possesses the power to pursue them. Under these circumstances, no one else is entitled to take them. 2 Black. Comm. 393. 2 Kent’s Comm. 394. The question here is not between the owner of the soil upon which the tree stood that included the swarm and the owner of the bees: as to him, the owner of the bees would not be able to regain his property, or the fruits of it without being guilty of trespass. But it by no means follows, from this predicament, that the right to the enjoyment of the property is lost; that the bees therefore become againferce natura, and belong to the first" occupant. If a domestic or tame animal of one person should stray to the enclosure of another, the owner could not follow and retake it, without being liable for a trespass. The absolute right 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 after 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 cannot, I think, be doubted, that if the property in the swarm continues while within sight of [552] the owner—in other words, while he can distinguish and idenp ;n the air—that it equally belongs 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 fercenaturce 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 noxious animals, destructive in their nature. Mr. Justice 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 fcrce natura 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 different 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 cannot pursue and take them, without being liable for a trespass, still this difficulty should not operate as an abandonment of the ani [553] mais 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 cases of Heermance v. Vernay, 6 Johns. R. 5, and Blake v. Jerome, 14 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 cannot 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 Gillet v. Mason, 7 Johns. R.16, and Ferguson v. Miller, 1 Cowen, 243. The first presented a question between the finder anda person interested in the soil; the other between two persons, each claiming as the first finder. The plaintiff in the last case, though the first finder, had not acquired a qualified property in the swarm according to the law of prior occupancy. The defendant had. Besides, the swarm being unreclaimed from their natural liberty while in the tree, belonged to the owner of the soil rations soli. For these reasons I am of opinion that the judgment of the court below should be affirmed. Judgment affirmed.