Ownership of a swarm.
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  1. #1
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    Default Ownership of a swarm.

    I found this very interesting article about the legal ownership of bees and swarms.

    https://sassafrasbeefarm.wordpress.c...ee-in-the-law/

    Just in case you ever have a dispute about who owns that swarm you just captured: you do, no matter who owned the parent hive or where the swarm was captured, even if you trespassed to capture it.

    edit: I am not advocating you trespass to capture a swarm, and neither is the article. Always get permission, its the decent thing to do. I'm am speaking only on the ownership of the swarm. The article makes it quite clear to those that bothered to read it that a person may still have to answer the trespass. It is an item on the list of conditions that do not negate ownership of the swarm for the person who captured it, the others were ownership of the parent hive or where or when the swarm was captured.
    Last edited by JConnolly; 05-03-2018 at 06:21 PM.
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  3. #2
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    Default Re: Ownership of a swarm.

    Quote Originally Posted by JConnolly View Post
    Just in case you ever have a dispute about who owns that swarm you just captured: you do, no matter who owned the parent hive or where the swarm was captured, even if you trespassed to capture it.
    While I do believe that swarms are "an act of nature", to blithely state that possession makes one an owner "even if you trespassed to capture it" without evaluating the specific laws of each of the 50 states is rather risky.
    Graham
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  4. #3
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    Default Re: Ownership of a swarm.

    Not having read it yet, if you step on my property to capture a swarm, you will not be walking off...
    This is Texas, we defend our property.
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  5. #4
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    Default Re: Ownership of a swarm.

    Quote Originally Posted by mike17l View Post
    Not having read it yet, if you step on my property to capture a swarm, you will not be walking off...
    This is Texas, we defend our property.
    Read it, yup, you cannot own what you cannot posses. You cannot posses what you do not have access to. Trespass is still illegal, and can easily get you shot.
    South Texas Apiaries, LLC
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  6. #5
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    Default Re: Ownership of a swarm.

    I agree that trespassing to capture a swarm crosses a line, but good Lord do you guys sound like a bunch of internet tough guy tools talking about hurting people over a swarm.

  7. #6
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    Default Re: Ownership of a swarm.


  8. #7
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    Default Re: Ownership of a swarm.

    Quote Originally Posted by Nhaupt2 View Post
    I agree that trespassing to capture a swarm crosses a line, but good Lord do you guys sound like a bunch of internet tough guy tools talking about hurting people over a swarm.
    Mike isn't talking about shooting someone over a swarm, he's talking about trespassing.

    Alex
    Ten years of Beekeeping before varroa. Started again spring of 2014.

  9. #8
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    Default Re: Ownership of a swarm.

    Blackstone Commentaries are an 18th century treatise, written in England, and was not considered law in England, even then. It is what attorney's call "persuasive authority." There are doctrines of law against allowing one to profit from their criminal acts (i.e. I will not inherit from my parent if I killed that parent), and it would certainly not allow one gain from a trespass, which would thereby encourage trespass.

    Blackstone seems to be parsing out the ideas of title to chattel verse things that naturally exist on a property. I think it is an esoteric discussion that someone has now run with as black letter law.

    Actual damages are recoverable in a trespass action. If someone trespasses onto my property and takes a wild swarm, they have deprived me the enjoyment of my own property and my own access to that swarm. The court would have equitable power to return the swarm to me, or have the trespasser/thief/scumbag pay me its value.

  10. #9
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    Default Re: Ownership of a swarm.

    Quote Originally Posted by mike17l View Post
    Not having read it yet, if you step on my property to capture a swarm, you will not be walking off...
    This is Texas, we defend our property.
    If you had read it, the article makes it quite clear you may have to answer for the trespass. The article's focus is swarm ownership, not trespassing.


    Quote Originally Posted by AHudd View Post
    Mike isn't talking about shooting someone over a swarm, he's talking about trespassing.

    Alex
    And the article isn't about trespassing, its about who owns a swarm, even under conditions that people might use to argue the swarm catcher isn't the owner.
    Zone 6B

  11. #10
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    Default Re: Ownership of a swarm.

    Quote Originally Posted by psm1212 View Post
    Blackstone Commentaries are an 18th century treatise, written in England, and was not considered law in England, even then. It is what attorney's call "persuasive authority." There are doctrines of law against allowing one to profit from their criminal acts (i.e. I will not inherit from my parent if I killed that parent), and it would certainly not allow one gain from a trespass, which would thereby encourage trespass.

    Blackstone seems to be parsing out the ideas of title to chattel verse things that naturally exist on a property. I think it is an esoteric discussion that someone has now run with as black letter law.

    Actual damages are recoverable in a trespass action. If someone trespasses onto my property and takes a wild swarm, they have deprived me the enjoyment of my own property and my own access to that swarm. The court would have equitable power to return the swarm to me, or have the trespasser/thief/scumbag pay me its value.
    Well said. Thanks for adding clarity to this discussion.
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  12. #11
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    Default Re: Ownership of a swarm.

    I would not go after a swarm on another person's land without asking first.

  13. #12
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    Default Re: Ownership of a swarm.

    Quote Originally Posted by psm1212 View Post
    Blackstone Commentaries are an 18th century treatise, written in England, and was not considered law in England, even then. It is what attorney's call "persuasive authority."
    It's usually one of the first things you read in lawschool Property class. Followed immediately before or after Pierson v. Post. The case is an early 1800's case where one person was in pursuit of a fox when another one shot it. The question came up of who owned the fox, the one in pursuit or the one who shot first. It's a seminal case in the US, as it was the first time any court had to interpret basic property law, i.e. whether old English common law would apply in the US or not.

    From my memory, the case wasn't the easiest to read, and made you consistently sigh and say "why am I really reading this . . . it's about a dumb fox . . . " But it's implications ended up being large. The Court cited to Blackstone and, while yes it is merely suggestive authority, the court used it to create case law consistent with it.

    Sadly, the article in the original post should have cited to Pierson v. Post instead of Blackstone. Would have made more sense. But that's what happens when non-lawyers write articles that outline legal opinions.

    Quote Originally Posted by psm1212 View Post
    Blackstone seems to be parsing out the ideas of title to chattel verse things that naturally exist on a property. I think it is an esoteric discussion that someone has now run with as black letter law.
    Likewise, I'd suggest reading Pierson v. Post or at least https://en.wikipedia.org/wiki/Pierson_v._Post.

    Quote Originally Posted by psm1212 View Post
    Actual damages are recoverable in a trespass action. If someone trespasses onto my property and takes a wild swarm, they have deprived me the enjoyment of my own property and my own access to that swarm. The court would have equitable power to return the swarm to me, or have the trespasser/thief/scumbag pay me its value.
    I think you're missing the point. If a wild animal is on your property, it's wild. You haven't confined it, deprived it of its freedom, or otherwise restrained it. As you haven't expressed dominion or control over it, you don't own it. Even if it is on your property. Why? Because it's a beast, or ferę naturę, and not a domesticated animal. So you can't claim actual damages equal to a swarm which you didn't own or have.

    You could try to claim, as damages for the trespass, lost opportunity damages. But generally speaking I think you wouldn't have much of a chance.

    Your actual damages could be sustained. But your actual damages aren't equal to the value of the swarm per se.

  14. #13
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    Default Re: Ownership of a swarm.

    Quote Originally Posted by Specialkayme View Post

    I think you're missing the point. If a wild animal is on your property, it's wild. You haven't confined it, deprived it of its freedom, or otherwise restrained it. As you haven't expressed dominion or control over it, you don't own it. Even if it is on your property. Why? Because it's a beast, or ferę naturę, and not a domesticated animal. So you can't claim actual damages equal to a swarm which you didn't own or have.

    You could try to claim, as damages for the trespass, lost opportunity damages. But generally speaking I think you wouldn't have much of a chance.

    Your actual damages could be sustained. But your actual damages aren't equal to the value of the swarm per se.
    I disagree with you on only this point.

    While I agree you do not own the swarm, as a property owner, you are entitled to the enjoyment and profits of your property. To the extent the trespass prevents me from that enjoyment, profit or harvest, it is considered damages. Because I did not own the swarm, I do not think I can prosecute a civil case of conversion or a criminal case of theft of property (at least as my state defines it). But trespass to land (as distinguished from trespass to chattels) will result in the defendant being liable for any conduct engaged in while trespassing. If you took a swarm from my property, preventing me from capturing the swarm (at least potentially), you are liable to me for the opportunity I have lost as a result of your trespass -- the swarm.

    In your analysis, you are focusing on the ownership (or lack of ownership) of the swarm. In a conversion case, you are correct -- I did not own it, so I cannot be deprived of it. You are also correct in a TOP criminal case -- you did not take the "property of another." However, in a trespass to lands action, ownership of the swarm is irrelevant. You are responsible for that swarm no longer existing on my property and have interfered with my use of my land to capture it.

    I graduated from law school 25 years ago this month. I don't know that I could cite a single case I briefed back then. I hope you are much younger than me and that it is not my mind that is failing. The discussions are still fun though.
    Last edited by psm1212; 05-04-2018 at 02:08 PM. Reason: reworded something

  15. #14
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    Default Re: Ownership of a swarm.

    Quote Originally Posted by psm1212 View Post
    While I agree you do not own the swarm, as a property owner, you are entitled to the enjoyment and profits of your property.
    Perhaps. But I believe I'd disagree that a swarm that temporarily lands on your property is considered a "profit" of your land. Your argument stems from the concept of ratione soli, or that the landowner is entitled to everything that springs from the soil. I.e. if it comes from your land, it's yours.

    A tree that grows from your land, or a colony that occupies a cavity in the tree, are both your property. They exist on your land, and anything that springs from it is the profit from your land. But a swarm remains in its feral state. It's temporary, fleeting, and moving on. It neither derived from your land, nor will it (likely) reside on your land. A beast of nature. You have no rights to it until you've captured it. And it isn't considered a part of your property until it has taken up residence.

    So if you can't own the swarm itself until you exercise dominion and control over it, and your land is an inanimate object that can't exercise dominion and control over a wild animal, how can your ownership of the land entitle you to something that you have no rights to?

    If you didn't own the swarm absent the trespass, you can never own the swarm as a result of the trespass. The trespass itself can not convey property rights to something that you didn't own without the trespass.

    Quote Originally Posted by psm1212 View Post
    If you took a swarm from my property, preventing me from capturing the swarm (at least potentially), you are liable to me for the opportunity I have lost as a result of your trespass -- the swarm.
    Trespass entitles you to damages. For certain. But not the swarm. Not even the "value" of the swarm (if you could figure that out). As you said, the trespass prevented you from access to capturing the swarm, but not the swarm itself. You may not have been able to capture the swarm. It may have left before you exercised dominion over it. And thus, there is a chance that it would have remained in its feral state, and was never domesticated, controlled, or owned by you.

    So your assessment of damages for the trespass isn't per se equal to the value of the swarm. It's equal to the value of the chance to capture the swarm. Is that equal to the value of the swarm itself? I don't know what a Court would do, but I find it hard to imagine that the value of a possibility to acquire something when that possibility is less than 100% can ever be equal to or in excess of the value of the something to be acquired (unless you're assessing value in the form of enjoyment).

    So what value would a Court assess? I don't know, but I would imagine it would be something less than the swarm, but more than $0. I don't know about you, but I can't find an authority that the Judge would have to provide an in rem judgment against the trespasser. And I'd agree with you that a court of equity would hold the authority to award the property owner some portion of the swarm, but I remember the last attorney that told a District Court Judge that it was equitably wrong:

    "Son . . . this is a Court of Law . . . it hasn't been a Court of Equity since several wise men signed that certain document called the Declaration of Independence."

    (No, I wasn't the Son, and no I don't think the Judge was actually right about that)

    Although I have regularly used, and been successful on equitable arguments in Bankruptcy Court (which is by definition a Court of Equity), it seems somewhat extreme to declare bankruptcy in an attempt to get your swarm back.

    Quote Originally Posted by psm1212 View Post
    I graduated from law school 25 years ago this month. I don't know that I could cite a single case I briefed back then. I hope you are much younger than me and that it is not my mind that is failing. The discussions are still fun though.
    The discussions are significantly more fun when you aren't standing up reading your brief.

  16. #15
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    Default Re: Ownership of a swarm.

    As a brief aside, practically speaking I believe you're right PSM. If someone trespassed on your land and took the swarm (and you wanted it, saw him, and was prepared to capture it) I think a Judge (should you take it that far) or a Sheriff (should he get involved) would make the trespasser give the swarm back. Legally speaking, I can find no rationale or legal authority for it though.

    In fact, the Sheriff refused to get involved in a situation a year ago when a trespasser went onto one of my beeyards and shot a wild turkey that was hiding out turkey season by living with the farmer's chickens. The farmer was outraged. The Sheriff either didn't care, didn't want to get involved, had too much on his plate, or felt the beast was wild and the farmer had no rights to it (I don't know, I didn't get the chance to talk it over).

    But you and I both know what happens in Court doesn't always follow the law.

  17. #16
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    Default Re: Ownership of a swarm.

    Well, I know one thing for sure: we would have already bored the hell out of the Judge, just like everyone else that might still be following this thread. Enjoyed it Special. I graduated from U of Alabama Law School. Small town lawyer in real estate/estates/secured transaction for 20 years. While doing that I moonlighted as an Assistant District Attorney, and was the Municipal Judge in our county seat for 10 years. Now I am in-house counsel at a power company. Been a good run. But if I had it to do over, I would have been an engineer.

  18. #17
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    Default Re: Ownership of a swarm.

    Quote Originally Posted by psm1212 View Post
    Well, I know one thing for sure: we would have already bored the hell out of the Judge, just like everyone else that might still be following this thread.
    No, I enjoyed it too. I'm not a lawyer...but I've played one in court a few times, as well as some other governmental proceedings...and won about 95% of the time. Even got one lawyer (who was representing herself) so hopping mad that she kept standing up and shouting until the judge finally had enough and told her to "Shut the **** up and sit down or I'll have you removed!" Yeah, he really said that...and I won.
    If you want to be successful, study successful people and do what they do.
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  19. #18
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    Default Re: Ownership of a swarm.

    Hey guys, if this flogged horse wasn't dead enough, we had a similar discussion about this topic last year when a beekeeper tresspassed onto his neighbor's fenced property to remove a hive living in an abandoned TV set.

    Enjoyed the banter.
    Thankfully, the bees are smarter than I am. They are doing well, in spite of my efforts to help them.

  20. #19
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    Default Re: Ownership of a swarm.

    Just my personal thought... fenced property or not. If you don't know who the owner is, ask someone they can tell you for sure. Also, if someone trespasses on my property, I'll call the law after I remove them. Sure a swarm is no ones property, but illegal trespass is certainly illegal, and is a prosecutable offence in all 50 states. Ask me , I may give you permission... steal from me, you may get shot. On my farm, all livestock there is mine, unless you ask for it. Otherwise, don't cross my fences or your a rustler. Also, bees are considered livestock in most states. My cows roam freely on my 60 acres, just because he, or she isn't tied down doesn't mean you can cut my fences, or open my gates to get my cow....

  21. #20
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    Default Re: Ownership of a swarm.

    Not all states have the same kind of property/trespass laws. For example in Vt all land is open unless otherwise posted. I can hunt, fish, or just go for a stroll through the woods across anyone's land unless they legally post their land. People here are nice so I would ask first before I grabbed a swarm but legally speaking if I wanted to and you didn't have your land legally posted I could walk up, capture it, and be well within my rights.

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