In his recent talk to the association on Bees and the Law, Andrew Beer referred to
the ownership of a swarm. He made a distinction between bees in a swarm and bees
that leave a hive to forage. The latter has the instinct to return to the colony
and, therefore, remain the property of the beekeeper, whilst away from the hive.
In contrast, a queenright swarm has abandoned the hive and has no intention of returning.
Mr Beer stated that the ownership of a swarm is lost when the swarm emerges; the
bees have reverted to a wild state over which the beekeeper, or anyone else, has
no control. This was elaborated in the handout he provided:
“I saw the swarm emerge from my hive, I followed it to where it landed so it must
be mine.” Wrong. Ownership ends once a swarm emerges from a hive and the swarm is
ownerless until it has landed and someone has brought it under control.
This is contrary to my understanding of the Common Law of England (and Wales - Scottish
law is somewhat different). The ownership of a swarm follows Roman Law. The Roman
Law provided that bees remain the property of the beekeeper as long as they were
kept in sight. In Mr Beer’s notes he cited several Case Histories, but did not include
the case of Kearry v Pattinson (1939. 1 Kings Bench 471) in which the following passage
from the Institutes of Justinian (Bk II I 471) was quoted:
Bees are naturally wild. Hence if a swarm settles on your tree, it is no more yours
until you have hived it, than the birds which build their nests there. Consequently,
if it is hived by someone else it becomes his property. A swarm which has flown from
your hive is considered to remain yours so long as it is in your sight and easy of
pursuit; otherwise it belongs to the first person who catches it. (My emphasis)
It is noteworthy that over 1700 years have passed since the time of the Emperor Justinian
in the 6th century A.D. and it still summarizes English law today.
If your swarm settles on your neighbour’s land and you wish to retrieve it, you must
first seek permission (although trespass in itself is not a crime – in order to proceed
against intruders it has to be proved that damage has been done). If permission is
refused then the matter is at an end. The Court will not compel the landowner to
grant access – assuming a swarm is sufficiently patient to await due process of the
law! This was decided in Kearry v Pattinson.
In practice, collecting swarms is an important public service & there are not usually
any problems – removing a swarm is welcomed! However, as with all beekeeping activities,
problems can occur and have to be resolved in costly court hearings (a good reason
for having BBKA insurance cover).
I do not have a copy of Beekeeping and the Law: Swarms and Neighbours by David Frimston
& David Smith, which would provide more information – I don’t think there is a copy
in the library.