Rexroth v. Coon

• Decision Date: 28 May 1885
• Parties: REXROTH v. COON.
• Court: Rhode Island Supreme Court

23 A. 37

15 R.I. 35

REXROTH

v. COON.¹

Supreme Court of Rhode Island.

May 28, 1885.

Exceptions to court of common pleas, Washington county. Overruled.

Action in trover by Philip Rexroth against Herbert Coon for the wrongful conversion of a hive of bees. Judgment for defendant. Plaintiff brings exceptions.

Thomas H. Peabody, for plaintiff.

A. B. Crafts, for defendant.

TILLINGUAST, J. This is an action on the case in trover for the recovery of damages for the wrongful conversion of a hive of bees, together with the honey and honey-comb, belonging, as is alleged, to the plaintiff. The case was originally brought and tried in the justice court of the town of Westerly, from whence it was carried by appeal to the court of common pleas. In the court of common pleas jury trial was waived, and it was tried to the court upon the law and the facts. It comes here by bill of exceptions, the only exception taken being to the ruling of the court, that upon the facts which appeared in evidence the plaintiff was not entitled to recover. Said facts are incorporated in the bill of exceptions, and are a part of the record of the proceedings They are substantially as follows, namely: In May, 1881, the plaintiff placed a small pine box, called a "bee-hive," in the crotch of a tree in the woods on land of Samuel Green, in the town of Hopkinton. It remained in this position until about the 1st of September, 1883, when the defendant went upon the premises and took and carried away the hive, together with a swarm of bees that was then in it, also the honey and honeycomb, and appropriated the same to his own use. The plaintiff had visited the hive about twice a year while it remained in its position for the purpose of ascertaining whether any bees were in it or had been. He had found none. The plaintiff never had any express permission or license from the owner of the land to place or keep his hive in said tree. The defendant never had any express permission or license from the owner of the land to come upon it, and take and carry away said property. Said hive was at some distance from any house, and no person knew where said bees came from into said hive, although a number of people kept bees in said town. There was evidence that for several years signs had been posted up by said Green on his premises forbidding all persons from trespassing thereon, and that one of said signs was within about 20 rods of said hive, but the plaintiff testified that he never saw any of them, and that he never had any notice to keep off said premises. The defendant split open said hive, took out its contents, and then nailed it together again and replaced it in said tree in as good condition as it was before he took it away. The defendant testified that he knew the owner of said land had forbidden all persons from trespassing thereon, but that said owner had told him that he did not put up said notice to keep off his neighbors, and had given him permission to go upon said land. Demand was made upon defendant in due form before the commencement of suit. After the suit was commenced the defendant turned over to said Green what then remained in his hands of said bees and honeycomb. The value of the property taken was variously estimated at from $2.50 to $10. Upon said facts the court ruled that the plaintiff was not entitled to recover, and rendered judgment for the defendant for his costs, to which ruling the plaintiff duly excepted.

The only question, therefore, is whether said ruling was correct. The plaintiff claims that he hived the bees, and that he thereby acquired at least a qualified property in them, notwithstanding they were upon the land of another, which was sufficient to enable him to maintain this action. We do not think the claim can be substantiated. The action is trover, and, in order to recover, the plaintiff must prove title, some title, in himself, coupled with possession or the right of immediate possession. We do not think he has proved either. Bees are Terse Datur? and the only ownership in them until reclaimed and hived is ratione soli. This qualified ownership, however, although exceedingly precarious and of uncertain tenure, cannot be changed or terminated by the act of a mere trespasser; that is to say, the act of reducing a thing feræ naturæ into possession, where title is thereby created, must not be wrongful. And if such an act is effected by one who is at the moment a trespasser, no title to the property is created. Blades v. Higgs, 11 H. L. Cas. 621. "Property ratione soli, " said the lord chancellor in said case, "is the common-law right which every owner of land has to kill and take all such animals terse natural as may from time to time be found on his land, and as soon as this right is exercised the animal so killed or caught becomes the absolute property of the owner of the soil." It was further held in the same case that such animals, when found, killed, and taken by a mere trespasser, became also the property of the owner of the land, the same as if taken by him or his servants. See Sutton v. Moody, 1 Ld. Raym. 250; Earl of Lonsdale v. Rigg, 11 Exch. 654; Rigg v. Earl of Lonsdale, 1 Hurl. & N. 923. We understand that the law in this country with regard to property in animals term natural is substantially in accord with that of England,...