Case of the Day – Friday, October 1, 2021


I dimly remember my first-year property law professor teaching us about ferae naturae (wild animals). The cases we studied then had to do with ownership. You shoot a deer bounding over the fields, and it falls for the final time in Farmer Brown’s corn. Who owns the deer?

But what if the deer was not a deer, but a family of fat old woodchucks? As we Midwesterners know, woodchucks don’t get fat by accident. Rather, they do it by ravaging someone’s field. So what if a woodchuck family lived under Farmer Brown’s cornfield year-around, eating tender shoots of corn, timothy hay, and Mrs. Brown’s buttercups and vegetable garden? And when the pickings got slim, the chucks invaded your soybeans (the roots of which they love)?

Farmer Brown knew the furry little woodchucks – diligent destroyers that they are – were ravaging the crops. Shouldn’t he have removed the pests himself, you know, shot them, poisoned them, blown them out of the earth, run them down with a tractor, borrowed a rodent-hating dog like my own stone-cold groundhog slayer, Winnipeg Rocket Riley Root? (And, by the way, today is Winnie’s special day – National Black Dog Day. Enjoy the celebration!)

Back to the topic. The ‘chucks are ferae naturae, wild animals who answer to no one. Still, you might think Farmer Brown had a duty not to let his field be a staging area for rodent terrorism. (America invaded Afghanistan for much the same sin).

That question bedeviled Denny and Shirley Belhumeur, who were stung by what the trial court incorrectly called a “bee’s nest.” C’mon, people, it’s a hive!

Belhumeur v. Zilm, 157 N.H. 233, 949 A.2d 162 (Supreme Ct. N.H., 2008). Dennis and Shirley Belhumeur lived next door to Jason and Jessica Zilm. One day, Dennis got stung several times by some aggressive bees that had swarmed into Denny’s property from their hive in a tree on Jason’s property. Denny sued, claiming that Jason had actual or constructive knowledge of the bees’ existence and aggressive behavior and was negligent in not removing the hive. As well, Denny claimed the bees constituted a private nuisance.

The trial court granted summary judgment to the Jason. Dennis, feeling like he’d been stung again, appealed.

Held: Jason was not liable for wild animals living as a natural occurrence on his property.

The Court held that the buzz is that a landowner is under no affirmative duty to remedy conditions of purely natural origin upon his land, even where the conditions are dangerous or inconvenient to his neighbors. In other words, in order to constitute a nuisance as a matter of law, human action must have contributed to the condition’s existence.

Under the doctrine of animals ferae naturae, the Court said, wild animals are presumed to be owned by no one specifically, but rather by the people generally. This doctrine has spawned a rule of law that a landowner cannot be held liable for the acts of indigenous wild animals occurring on his or her property unless the landowner has actually reduced the wild animals to possession or control, or introduced a non-indigenous animal into the area. New Hampshire does not as a matter of judicial policy impose absolute liability for damage by wild animals.

The doctrine of ferae naturae is actually based upon a reality not appreciably altered by the passage of time; namely, the unpredictability and uncontrollability of wild animals. The doctrine of animals ferae naturae reasonably balances the interests of landowners and the interests of those who may be harmed by the actions of wild animals found on or emanating from the landowners’ property. Here, the bees were wild, and neither Jason nor Jessica had the ability or duty to control them.

Claims for negligence rest primarily upon a violation of some duty owed by the actor to an injured party. Absent a duty, there is no negligence. Duty, the Court said, “is an exceedingly artificial concept, therefore, when charged with determining whether a duty exists in a particular case, courts necessarily encounter the broader, more fundamental question of whether a plaintiff’s interests are entitled to legal protection against the defendant’s conduct.” The decision to impose liability ultimately rests on a judicial determination that the social importance of protecting the plaintiff’s interest outweighs the importance of immunizing the defendant from extended liability. 

It is a sad fact of life that dogs bite and bees sting. There is no social utility in demanding that Jason and Jessica be liable for when it happens.

Denny complained that Jason had actually gotten estimates from tree removal companies, and in so doing, assumed a duty to Denny that he otherwise would not have had. The Court said that while Jason was the bee’s knees for doing so, that did not impose a duty on him to carry through with the job. “In determining how much action is sufficient to create a duty on the part of a person volunteering services, it is necessary to know if conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury.”

– Tom Root


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