In each of these cases the defendant " was where he had a right to be " at the time he committed the grievance complained of, nevertheless this fact did not justify him in doing an act, the direct consequence of which was to injure the owner of the land for his own benefit. Is does not follow that, because a person is where he has a right to be he cannot be held liable in trespass. A person has the right to drive his cattle along the public highway, but he has no right to depasture the grass with his cattle in the highway adjoining the land of another person. Also, a person has the right to travel along a public highway, but this gives him no right to dig a pit, or remove the soil, or incumber it in front of lands belonging to others.

In the case under consideration, the defendant had the right of using the waters of the bay for the purpose of a public highway in the navigation of his boat over it; but he had no right to interfere with the plaintiff's use thereof for hunting, which belonged to him as the owner of the soil. The public had a right to use it as a public highway, but every other beneficial use and enjoyment belonged to the owners of the soil.

Had this action been in case, with proper averments setting forth plaintiff's ownership and use for sporting, and defendant's interference and disturbance of plaintiff's enjoyment, the authorities last above cited would have supported the action. I am not prepared to say, after verdict, that trespass will not lie under the circumstances of this case; more especially as no question is raised by defendant's counsel that it is not the proper form of action, and as it appears to have been planted to test the plaintiff's right to the private and exclusive use of the land covered by his patent for sporting purposes. As owner of the fee of the soil under the water, I think he is entitled to such exclusive right, and that the judgment should be affirmed.

I may add, in conclusion, that, aside from the ownership of the plaintiff of the locus in quo, the only important question in this case is whether a man has the exclusive right of fowling upon his own land. If he has, it can make no difference with that right whether it be upland or covered with water. As the question of the right to fish in the navigable waters of the great lakes at places not affected by private ownership does not arise in this case, I forbear to discuss it. My views upon that subject were expressed in Lincoln v. Davis, 53 Mich. 375, 19 N. W. Rep. 103.

Rexroth V. Coon

15 Rhode Island, 35. - 1885.

Tillinghast, J. - This is an action on the case in trover for the recovery of damages for the wrongful conversion of a hive of bees, together with the honey and honey-comb belonging, as is alleged, to the plaintiff. The case was originally brought and tried in the Justice Court of the town of Westerly, from whence it was carried by appeal to the Court of Common Pleas. In the Court of Common Pleas jury trial was waived, and it was tried to the court upon the law and the facts. It comes here by bill of exceptions, the only exception taken being to the ruling of the court, that, upon the facts which appeared in evidence, the plaintiff was not entitled to recover. Said facts are incorporated in the bill of exceptions, and are a part of the record of the proceedings. They are substantially as follows, namely: In May, 1881, the plaintiff placed a small pine box called a bee-hive, in the crotch of a tree in the woods on land of Samuel Green, in the town of Hopkinton. It remained in this position until about the first of September, 1883, when the defendant went upon the premises and took and carried away the hive, together with a swarm of bees that was then in it, also the honey and honey-comb, and appropriated the same to his own use. The plaintiff had visited the hive about twice a year while it remained in its position, for the purpose of ascertaining whether any bees were in it or had been. He had found none. The plaintiff never had any express permission or license from the owner of the land to place or keep his hive in said tree.

The defendant never had any express permission or license from the owner of the land to come upon it, and take and carry away said property. Said hive was at some distance from any house, and no person knew where said bees came from into said hive, although a number of people kept bees in said town. There was evidence that for several years signs had been posted up by said Green on his premises forbidding all persons from trespassing thereon, and that one of said signs was within about twenty rods of said hive, but the plaintiff testified that he never saw any of them, and that he never had any notice to keep off said premises. The defendant split open said hive took out its contents, and then nailed it together again and replaced it in said tree in as good condition as it was before he took it away. The defendant testified that he knew the owner of said land had forbidden all persons from trespassing thereon, but that said owner had told him that he did not put up said notice to keep off his neighbors, and had given him permission to go upon said land. Demand was made upon defendant in due form before the commencement of suit. After the suit was commenced the defendant turned over to said Green what then remained in his hands of said bees and honey-comb. The value of the property taken was variously estimated at from $2.50 to $10. Upon said facts the court ruled that the plaintiff was not entitled to recover, and rendered judgment for the defendant for his costs, to which ruling the plaintiff duly accepted.

The only question, therefore, is whether said ruling was correct.

The plaintiff claims that he hived the bees, and that he thereby acquired at least a qualified property in them, notwithstanding they were upon the land of another, which was sufficient to enable him to maintain this action. We do not think the claim can be substantiated. The action is trover, and, in order to recover, the plaintiff must prove title, some title, in himself, coupled with possession or the right of immediate possession. We do not think he has proved either.