Bees are considered by Judge Blackstone, (2 Com. 392.) as feres natures; but when hived and reclaimed, a qualified property may be acquired in them. . Occupation of them, according to Bracton, that is hiving or enclosing them, gives the property in bees. In the present case, it appears the bees were not hived before they were discovered by the defendant in error, and the only act he did was to mark the tree. The land ■was not his, nor was it in his possession. Marking the tree did not reclaim the bees, nor vest an exclusive right of property in the finder, especially in this case, against the plaintiff in error, .who, as one of the children of Timothy Gillet, (who does notv appear to have made a will,) must be considered as one of the heirs, and, as such, a tenant in common in the land. Blackstone (vol 2. p. 393.) inclines to the opinion, that under the Charter of the Forest, allowing every freeman to be entitled to the honey found within his woods, a qualified property may be had in bees, in consideration of the soil whereon they are found, pr an ownership, rations soli. According to the civil law, (Just. Inst. lib. 2. tit. 1. s. 14.) bees which swarm upon a tree, are not private property, until actually hived; and he who first encloses them jna hive, becomes their proprietor.
Judgment reversed.