Adams v. Burton

43 Vt. 36 | Vt. | 1870

The opinion of the court was delivered by

Pierpoint, G. J.

It appears from the facts found by the county court, that in August, 1868, the plaintiff traced and found a swann of bees in a tree standing upon the land of one Ira Burton ; that soon after he informed said Ira of the fact, and told him he intended to cut down the tree and get the honey ; the said Ira made no objection to his doing so ; set up no claim to the bees or the honey, but told the plaintiff he supposed he had the right to cut the tree and take the honey. Whether this can be regarded strictly as a license or not, it was clearly a waiver of any right he had in the matter, as the owner of the tree, and was sufficient to warrant the plaintiff in going on and cutting the tree, without making himself a trespasser thereby. After this the defendant, learning that the plaintiff had found a “ bee tree ” on the said Ira’s land, but not knowing the precise locality of it, went to the said Ira and told him he intended to find the said tree and cut it down and get the honey, and this the said Ira consented to. This again was a waiver of the right of the said Ira 'in favor of the defendant — thus virtually placing the plaintiff and the defendant upon the same footing so far as the rights of the said Ira, as the owner of the tree, were concerned. In assenting to the proposition of the defendant, there was no attempt to revoke or interfere with any authority or right that the plaintiff had, either as the discoverer, or as derived from the said Ira, to cut the tree and take the honey, and we think there would be no such legal effect resulting therefrom. This being so, these parties stand, as between themselves, and as respects the legal principles applicable to the case, in precisely the same position, as though neither had any authority from the owner of the tree, and both were trespassers upon his rights, or as though there was no individual owner of the tree. How then would the case stand. No principle is better settled, than that a person, in possession of property, can maintain trespass against any one that interferes with such possession, who cannot show a .better right, or title.

In this case, the plaintiff first found the bee tree ; he thus acquired all the rights that appertain to the person who first discovered the home of the bees, whatever those rights may be. He proceeded to take possession of the tree, for the purpose of removing the honey, and when the defendants interfered with him, he was in the act of cutting the tree; he literally had his hand upon the hive ; he was as much in possession as he would have been if he had cut the tree down, and had been'in the act of removing the honey from its place of deposit, and the honey as certainly secured ; the honey is all that is sought in such cases, and all that is of value, as the bees cannot be secured; the operator would much prefer to have them leave, as they always make a vigorous^ defense of the homestead, and those who thus rob the bees of their treasure generally have other stings to endure than those of conscience. In this case the defendants not only robbed the bees, the penalty for which they doubtless paid at the time, but they also robbed the plaintiff of his rights. They drove him from the actual possession of the property, and' seized and appropriated it to their own use, they having no superior right tp the plaintiff, thereby making themselves liable to him for the damage.

The county court having ascertained the damage and rendered a judgment therefor, that judgment must be affirmed.

Judgment affirmed.