[After remarking, that this case, as to the property in the bees, came precisely within that of Gillet v. Mason, (7 John. 16 ;) and that the owner of' the soil alone had a right to the tree, with all that was in it:] Admit the fact that Jenkins gave Miller liberty to cut the tree and take the bees—that did not give him a title to the bees till he had taken possession of them. TJhe license was without consideration, and liable to be revoked at pleasure. Suppose; Jenkins, himself, had cut the tree and taken the bees : can it be pretended that the plaintiff could have maintained an action against him ? The plpintiff had neither the ownership nor the possession. The utmost extent of his right, was, that he had it in his power to become the owner, by taking possession. The defendant had the same, and, per-, haps, a greater right ; as the license to him may have been a revocation of the former license. But suppose it was not, then the two parties stood on an equal footing; and he who first reduced,them to possession, became the owner.
Judgment reversed.