(published 1920 A.I. Root)
The subject of bees takes up but little space in law. The old law writers, the men who really laid down the basic principles of our law during its formative period, classified bees in a few brief paragraphs, yet they seem to have covered the subject as fully as was necessary at the time at which they wrote.
As to legal opinions handed down in cases that have been adjudicated by a court of last resort, and which opinions form the bulk of our law of today, those pertaining to bees are very meager in volume. There have been, no doubt, many cases in the minor courts, but the decisions in such cases are binding only on the courts that decided them, and then only where there is a lack of higher authority. It matters not how much was involved in a case nor how ably it was presented and argued, nor how ably it was presented and argued, nor how learned and scholarly was the opinion handed down by the trail judge, nor what the verdict of the jury was, provided it was a jury case; unless the case was appealed to a court of last resort the decision is not available law. For it is only the decisions that have been handed down in cases that have been appealed to a court of last resort that are published, and available to the lawyers and the courts in general and can be considered as law by them.
GENERAL PRINCIPLES OF LAW PERTAINING TO BEES
But the fact that but little litigation concerning bees has reached the courts of last resort does not mean that the laws governing bees and their keeping was in an undetermined state. Law deals primarily with principles; the subject matter is secondary. To ascertain what the law is in a given instance, all that is really necessary to do is to apply an established principle of law to the facts in the case. For example, to steal the property of another person is larceny, and it matters not whether the subject matter stolen be an automobile, a caged lion, an earoplane, or a hive of bees, as it is the act that constitutes the offense.
The law as laid down by Blackstone and other law writers of his time and of times prior is briefly as follows:
That bees are wild by nature; therefore, tho they swarm upon your tree they are not yours until you have hived them, any more than the birds that have their nests in your trees or the rabbits that run wild thru your fields. But when they have been hived by you they are your property the same as any other wild animal that you may have reduced to possession. Animals that are wild by nature and have been captured by you, should they escape, you still have a right in them if you follow them with the idea of recovery. A swarm of bees that has left your hive continues to be yours so long as you can keep them in sight and under any probability of recovery; 2 Blackstone Com. 392; Coopers Justinian Inst. Lib. 2, tit. 1, No. 14; Wood’s Civil Law, bk. 2, chap. 3, p. 103; Domat’s Civil Law, vol. 1, bk. 3, pt. 1, Subd. 7, No. 2133; Puffendorf’s Law of Nature, 4, chap. 6, No. 5; Code Napoleon No. 524; Bracton’s Law, 2, chap. 1, No. 3; and see notes in 40 L. R. A. 687; 62 L. R. A. 133.
During the early development of our Eastern States the general principle of law relative to ownership of bees was adjudicated in a number of cases. The questions raised and the decisions rendered are briefly as follows; Where bees have escaped and so properly may be considered as wild bees and without any owner at the time of their discovery, it has been held that such bees in a tree belong to the owner of the soil where the tree stands. Merrills vs. Goodwin, 1 Root 209; Ferguson vs, Miller, 1 Cow. 243; 13 Am. Dec. 519; Goff vs. Kilts, 15 Wend. 550.
That bees are ferae naturae, that is, wild by nature, but when hived and reclaimed may be a subject of ownership. State vs. Murpy, 8 Blackf. 498; Gillet vs. Mason, 7 Johns. 16; Rexroth vs. Coon, 15 R. I. 35; 23 Atl. 37.
But the finding of a swarm of bees in a tree on the land of another, marking the tree and notifying the owner of the land does not give the finder such property in the honey as will entitle him to maintain trover for the honey. Fisher vs. Steward, Smith 60.
Where one discovers wild bees in a tree, and obtains license from the owner of the land to take possession of them, and marks the tree with his initials, he gains no property in them until he takes them into his possession. Gillett vs. Mason, and Ferguson vs. Miller, supra.
Where bees take up their abode in a tree, they belong to the owner of the soil even tho they are reclaimed; but if they have been reclaimed and their owner is able to identify them as in a case where he followed the bees and saw them enter the tree, they do not belong to the owner of the soil, but to him who had former possession, altho he cannot enter upon the land on the owner of the tree and retake them without subjecting himself to an action for trespass. Goff vs. Kilts, 15 Wend. 550.
In a case decided in 1898 and entitled State of Iowa vs. Victor Repp, 104 Iowa, 305, 40 L. R. A. 687, it was held that the mere finding of bees in a tree on the land of another did not give the finder any title to the bees or to the tree. The facts were, one Stevens who found the bees trespassed on the land and hived the bees in a gum belonging to another. The defendant Repp removed the bees from where they had been hived and was for that act arrested and tried for larceny, Stevens, the man who hived the bees, being the complaining witness. The trial court convicted Repp, and the case was appealed to the Iowa Supreme Court. The court reversed the trial court, and in rendering the decision, Justice Ladd said: “The title to a thing ferae naturae cannot be created by the act of one who was at the moment a trespasser, and Stevens obtained no interest in the bees by the mere wrongful transfer of the bees from the tree to the gum. Having neither title nor possession he had no interest therein, the subject of the larceny. As the information alleged ownership in Stevens, and the case was tried on that theory, we need make no inquiry as to any taking from Cody (the owner of the land).”
WHERE BEES SHOULD BE LOCATED
Bees should be located by their owner so that in the natural course of events they will not molest others. If a keeper of bees locates his bees so that they will be prone to attack other people or their horses he is guilty of negligence. A case in point is Parsons vs. Manser, 119 Iowa 92, 62 L. R. A. 132, decided in 1903, the facts of the case being that the beekeeper had a hitching post in front of his house. This post was located in the public highway; about 25 feet from the post, but in the beekeeper’s yard, there were two bee-gums. The plaintiff, Parsons, was a medicine peddler. He called at Manser’s house and tied his horses to the hitching post. The bees attacked the horses and stung them to death. The beekeeper was held liable for the death of the horses, as the evidence showed that he was aware of the fact that the bees would attack horses when hitched to the post. A beekeeper is not liable, however, unless he has been negligent. In other words, the beekeeper must have been at fault, and if thru no fault of the beekeeper some other person is injured, the beekeeper is not liable. It was so held in a New York case, Earl vs. Van Alstine, 8 Barb. 630, which was an action for damages caused by plaintiff’s horses being stung, resulting in the death of one of the horses.
EARL VS. VAN ALSTINE
The facts in this case were: That Van Alstine was the owner of 15 hives of bees. The bees were kept in his yard, adjoining the public highway. Earl, the plaintiff in the case, was traveling along the highway with a team of horses, and when he passed Van Alstine’s place the bees attacked his horses and stung them so severely one died. Action was brought in the Justice’s Court and Earl secured judgment for the sum of $70.25 and costs. The case was appealed to the County Court of Wayne County where the judgment was reversed. From the County Court the case was appealed to the Supreme Court, Seventh Judicial District, which court affirmed the decision of the County Court, the decision being of date June 4, 1850.
The opinion was written by Justice Selden, and he discussed very thoroly the questions involved, the opinion being in part as follows:
This case presents two questions:
- Is any one who keeps bees liable, at all events, for any injury they may do?
- Did the defendant keep those bees in an improper manner or place, so as to render him liable on that account?
It is insisted by the plaintiff that, while the proprietor of animals of a tame or domestic nature (domitae naturae) is liable for injuries done by them (aside from trespasses upon the soil) only after notice of some vicious habit or propensity of such animal; that one who keeps animals ferae naturae is responsible at all events for any injury they may do, and that as bees belong to the latter class, it follows, of course, that the defendant is liable.
In order to determine this question, upon which no direct or controlling authority exists that I have been able to find, it becomes necessary to look into the principles upon which one who owns or keeps animals is liable for their vicious acts. It will be found upon examination of the authorities upon this subject that this classification of animals by the common law into animals ferae naturae and domitae naturae has reference mainly, if not exclusively, to right of property which may be acquired in them; those of the latter class being the subject of absolute and permanent ownership, while in regards to the former only a qualified property can exist, and the distinction is based upon the extent to which they can be domesticated or brought under the control and dominion of man, and not at all upon the ferocity of their disposition or their proneness to do mischief. For instance, the dog, some species of which are extremely savage and ferocious is uniformly classed among animals domitae naturae, while the hare, rabbit, and dove are termed ferae naturae altho completely harmless. It would not be natural to suppose that a classification adopted with exclusive reference to one quality of animals could be safely used to define and regulate the responsibilities growing out of other and different qualities; nor would it accord with that just analysis and logical accuracy which distinguishes the common law, that it should be resorted to for that purpose.
Chitty, under the head of actions on the case for negligence, gives the following rule: “The owner of domestic or other animals, not naturally inclined to do mischief, as dogs, horses, and oxen, is not liable for any injury committed by them to the person or personal property unless it can be shown that he previously had notice of the animal’s mischievous propensity;” Chitty Plead. 82. This accurate elementary writer did not fall into the error of applying the role to the whole of the class of animals domitae, but adds the qualification, “not naturally inclined to do mischief.” By his arrangement of the subject, too, he confirms the view of Peake that the liability is based upon negligence.
These authorities seem to me to point to the following conclusions:
- That one who owns or keeps an animal of any kind becomes liable for any injury the animal may do, only on the ground of some actual or presumed negligence on his part.
- That it is essential to the proof of negligence and sufficient evidence thereof that the owner be shown to have notice of the propensity of the animal to do mischief.
- That proof that the animal is of a savage and ferocious nature is equivalent to proof of express notice. In such cases notice is presumed.
. . . . . Having shown then, I think clearly, that the liability does not depend upon the classification of the animal doing the injury, but upon its propensity to do mischief, it remains to be considered whether bees are animals of so ferocious a disposition that any one who keeps them, under any circumstances, does so at his peril. If it is necessary for the plaintiff to aver and prove the mischievous nature of the animal, nothing of the kind has been done in this case; but if the courts are to take judicial notice of the nature of things so familiar to man as bees, which I suppose they would be justified in doing, then I would observe that however it may have been anciently, in modern days the bee has become as completely domesticated as the ox or cow. Its habits and instincts have been studied, and thru the knowledge thus acquired it can be controlled and managed with nearly as much certainty as any of the domestic animals; and altho it may be proper still to classify it among those ferae nature, it must nevertheless be regarded as coming very near the dividing line, and in regards to its propensities to do mischief, I apprehend that such a thing as a serious injury to person or property from its attacks is very rare, not occurring in ratio more frequent certainly than injuries arising from the kick of a horse or the bite of a dog.