Legal question

[mike91553]

I had a call from a beekeeper that watched his swarm fly away yesterday. He walked down the street about 6 or 7 houses and saw them in a 15 ft tree in the backyard. He doesn't know the people and no one has been home so far. I guess there is no way to get them without trespassing? The police officer he spoke to advised not to go on the property. Nice 5 lb swarm that left about 5 pm yesterday and pitched on this other property.

[donwal]

If he is not able to get in touch with the home owners, maybe he can put out a swarm box in a public area. Who knows he might get lucky.

[Jacobs]

NOTE: THIS LINE OF POSTS IS NOT TO BE TAKEN AS SPECIFIC LEGAL ADVICE, BUT AS A GENERAL DISCUSSION/UNDERSTANDING OF THE STATE OF THE LAW OF HONEY BEES & SWARMS. FOR SPECIFIC ADVICE, SEE YOUR ATTORNEY.
(edited and added 2/11/18)




My understanding of the old Common Law rule from England was that if the owner saw the swarm and kept it in view, it remained his property. He still had the problem of trespass if he did not have permission to enter the land where the bees settled. If he did not see the swarm or lost sight of it, they became the property of anyone who could take possession. Again, that person either had to have permission of the land owner, or risk trespass actions. I don't know of anything in North Carolina law that changes this, but I have not researched it.

[Wally]

It has been my understanding since I was young, that as long as you keep your swarm in sight, you can go anywhere and retrieve it. If it goes in a hollow tree on somebody's land, you can mark the tree and have legal ownership of the hive. You cannot cut the tree without the owner's permission, but neither can he cut it and take the bees. They belong to you. I have never seen it in writing, but it is what the old beeks have always said. If it were me, I would go and get the swarm if I didn't harm any fences or other things, and didn't have to cut any limbs.

[mike91553]

Well this one flew away around 9:30 this morning and the lady called back from our message about 4 pm and said come on and get them or look for them. I think the wise plan is to meet your neighbors and try to have an understanding that you can enter yards to catch your bees. But then if they ever moved in a house you would be expected to do a free removal including repairs.

[specialkayme]

The English rule was that pursuit granted a property interest. The American system has rejected that rule. The common case on point was out of New York in the early 1800's:

http://en.wikipedia.org/wiki/Pierson_v._Post

In the end, if it's a wild animal (which for our purposes it most likely is, but that's another argument) you have to capture it to own it. You can't just follow it.

And yes, you would be subject to trespassing charges should you go on private property to follow or retrieve it.

[Jacobs]

I will probably post some additional information in the near future, but I would NOT think that a New York state or other state decision would set the law/common law for any other state (such as North Carolina). It would be reasonable for us to follow common law rules brought over from England until our legislature or courts tell us different. If our state were to consider this issue in a court of record, it may well look to other states's decisions for guidance, but would not be bound by them.

That being said, trespass is STILL an issue in pursuing bee swarms on another's property. I do not collect swarms unless I am able to get the owner's permission (or the tenant's permission in a rental situation).

[Wally]

Unless you have been told to stay out, verbally, with signs, with fences, or however, you are not trespassing. Once you have been told or signaled to stay out, only then can you be charged with trespassing. If that were the case, you couldn't walk up to a house and ring the doorbell without breaking the law. Again, after finding no one home, and no fences nor signs,I would have retrieved the swarm.

[Jacobs]

Sorry Wally, but you are WRONG, WRONG, WRONG on this one. This is my quick response--more to come soon. In law,there is criminal trespass and there is civil trespass.

[Wally]

""If that were the case, you couldn't walk up to a house and ring the doorbell without breaking the law.

OK, if I change that just a bit, to this, "" If that is the case, you can't walk up to a house and ring the doorbell without trespassing..""
NOW, my question is, is all trespassing illegal? According to the dictionary, walking up to a front door and knocking is trespassing.
Is it also illegal?


""tres·pass
ˈtrespəs,ˈtresˌpas/
verb
verb: trespass; 3rd person present: trespasses; past tense: trespassed; past participle: trespassed; gerund or present participle: trespassing

1.
enter the owner's land or property without permission.
"there is no excuse for trespassing on railroad property"
synonyms: intrude on, encroach on, enter without permission, invade
"there is no excuse for trespassing on railroad property"

[Jacobs]

Here is a link to a 1926 North Carolina Law Review article giving a GENERAL description of the law of bees. Again, parts of what is in this article may have been changed by state statutes, court decisions in a state, or by local ordinances. ( This article doesNOT deal with laws involving neighborhood associations or restrictive covenants--a whole new layer of complications for some folks.)

http://scholarship.law.unc.edu/cgi/view ... ntext=nclr

[Jacobs]

Again, I am not giving a specific legal opinion, but the law may imply or grant permissions for entry on the land of another in limited circumstances that may be to the benefit of the legal possessor of the land or for the benefit of the public at large, but I have not seen any decision in North Carolina that would permit entry by a beekeeper following his swarm onto the property of another without the risk of trespass.

[Wally]

On the same note, show me where a beekeeper has been charged for retrieving a swarm in NC. As stated before, it is an understood rule or law that has been passed down and accepted for hundreds of years.

[Jacobs]

Until cases are appealed to the North Carolina Court of Appeals or above to the North Carolina Supreme Court, criminal case reports or civil case reports are not published as the decisions are in the articles listed above. You are not easily going to see the underlying facts for charges in criminal District Courts or Superior Courts, nor are you going to have easy access to filings for trespass or for conversion of goods in the small claims, District, and even Superior Courts in North Carolina. You can take your chances if you want, but it doesn't make your actions lawful.

[Wally]

All actions are lawful, with only one exception.

GETTING CAUGHT