Rosenfeld v. Jakways

MR. JUSTICE HOLLOWAY delivered the opinion of the court. In her complaint plaintiff alleges that on March 9, 1922, she was the owner in possession, and entitled to the possession of ninety-eight beaver pelts, of the value of $2,500; that on the day named the defendant Jakways, as state game warden, and defendant Roushar, as deputy game warden, wrongfully took the pelts from her, and converted them to their own use, to her damage, etc. To this complaint a general demurrer was sustained, and plaintiff, electing to stand upon her pleading, suffered a judgment of dismissal to be entered, and appealed. The one question for determination is: Hoes the complaint state a cause of action? If the subject matter of litigation were ordinary chattels the answer would be in the affirmative under all the authorities. (Paine v. British-Butte Mining Co., 41 Mont. 28, 108 Pac. 12.) The trial court, however, proceeded upon the theory that, by reason of the peculiar character of the subject matter, the burden was cast upon the plaintiff to allege facts from which it would appear that her possession and claim of title are lawful. That the ownership of wild animals is in the state, held by it in its sovereign capacity for the use and benefit of the people generally, and that neither such animals nor parts thereof are subject to private ownership except in so far as the state may choose to make them so, are principles now too firmly established to be open to controversy. (Geer v. Connecticut, 161 U. S. 519, 40 L. Ed. 793, 16 Sup. Ct. Rep. 600 [see, also, Rose’s U. S. Notes]; 12 R. C. L. 691-703.) If the state so elects it may prohibit absolutely the killing of such animals, or it may regulate the killing and prohibit the sale in this state of such animals or the parts, whether the animals were killed within or without the state. It may [563] grant or withhold the right to hunt, and if it grants the right at all it may do so upon such terms and conditions as it sees fit to impose so long as constitutional limitations or guaranties are not infringed. Aside from any question of common ownership, the state may exercise these rights in virtue of its police power. There is practically not any dissent from these general propositions. (Ex parte Maier, 103 Cal. 476, 42 Am. St. Rep. 129, 37 Pac. 402; State v. Weber, 205 Mo. 36, 120 Am. St. Rep. 715, 12 Ann. Cas. 382, 10 L. R. A. (n. s.) 1155, 102 S. W. 955; Jones v. Metcalf (Vt.), 119 Atl. 430.) Likewise the state may make the possession of the bodies of wild animals or parts thereof prima facie evidence that the possessor killed the animals, and may impose upon the possessor the burden of showing that his possession is lawful. (State v. Pippi, 59 Mont. 116, 195 Pac. 556.) In the proper exercise of its power this state prohibits ab- solutely the killing of certain wild animals. (Secs. 3700 and 3719, Rev. Codes 1921.) It prohibits the killing of othei's for a designated period (section 3699), others within prescribed areas (section 3696), and others except under peculiar circumstances and restrictions which are specifically enumerated. Section 3722 provides; “It shall hereafter be unlawful to kill beaver within this state except as hereinafter provided.” Two exceptions only are mentioned, and these are set forth fully: (1) A taxpayer or bona fide owner of real estate in this state may kill beaver when necessary for the protection of his dams, ditches, trees or land, provided he first obtains from the game warden a special license authorizing him to do so. If he exercises the privilege granted him he must, within thirty days thereafter, report to the warden the number of animals killed and the location of the property where they were killed. Before he may sell the pelts he must obtain from the warden special authority to do so, and after sale [564] he must again report to the warden, giving the number of pelts sold and the name of the purchaser. (2) The game warden may procure beaver to be killed upon open lands or game preserves whenever he deems it necessary to prevent them constructing dams which will interfere with the movements of fish in the stream or streams where the dams are about to be constructed or when the beaver are causing damage to the public roads, but the pelts of the beaver so killed and pelts confiscated under the provisions of section 3659 must be sold at public auction by the warden (section 3726), who must give to the purchaser a certificate of sale (section 3727). Under the first exception beaver may be killed by a private individual specially licensed to do so, while under the second exception the killing is done, in contemplation of law, by the game warden himself. Aside from these two exceptions it is the declared policy of the state that beaver may not be killed lawfully under any circumstances; or, stated differently, the general rule is that beaver may not be lawfully killed in this state. The exceptions are that such animals may be killed lawfully by the grace of the state only under the restricted circumstances mentioned, and none other. Section 3725 provides:, “The possession of the dead bodies, or any part thereof, or [of] any of the birds or animals mentioned in this Act, shall be prima facie evidence that such person or persons is or are guilty of killing the same.” Section 3659 makes it the duty of the game warden to seize wild animals or any parts thereof possessed in violation of the laws, or showing evidence of illegal taking, and section 10606 declares the presumption that official duty has been regularly performed. From these provisions of our statutes it is made manifest that in this state private ownership of beaver pelts is not a matter of common right, but may be acquired only as the result of compliance with the restrictions imposed by the law, and even then the ownership is qualified; that possession of beaver pelts raises a presumption that the possessor [565] killed the animals from which the pelts were taken, and that beaver may be killed by a private individual only under the limited circumstances mentioned in section 3722. Bearing in mind the fundamental distinction between the qttalified ownership which one may acquire in wild animals and the perfect ownership which may attach to other property, and that the right to qualified ownership in wild animals is conferred specially by statute, and depends upon compliance with enumerated precedent conditions, the answer to the question raised by this appeal is manifest. It is a general rule of pleading that, whenever one desires to avail himself of a statutory privilege or right granted to him, the existence of which right or privilege depends upon the presence of designated or enumerated facts, such facts must be alleged in order to constitute the foundation for the right or privilege claimed. (Dye v. Dye, 11 Cal. 163; Perkins v. Loux, 14 Idaho, 607, 95 Pac. 694; Cochise County v. Michelena, 15 Ariz. 477, 140 Pac. 62.) Counsel for plaintiff cite Linden v. McCormick, 90 Minn. 337, 96 N. W. 785, in which it was held that the burden is not upon the possessor of deer and moose skins to allege and prove that the animals from which the skins were taken were killed lawfully; but that decision has no application here. It is made to rest upon the particular provisions of the Minnesota statute. The court there said: “The law authorizes the killing of moose and deer within a certain period during November of each year. There is no restriction upon the disposition of the skins by those entitled to kill such animals.” Because of the peculiar character of the subject matter of this litigation and the restricted statutory title or right of possession which plaintiff may acquire therein, the burden was cast upon her to allege the facts from which it could be said prima facie that her possession and claim of ownership are lawful. (Hornbeke v. White, 20 Colo. App. 13, 76 Pac. 926; Sherwood v. Stephens, 13 Idaho, 399, 90 Pac. 345.) [566] In tbe absence of these allegations the complaint is insufficient and the demurrer was properly sustained. The judgment is affirmed. Affirmed. Mr. Chief Justice Callaway and Associate Justices Cooper, Galen and Stark concur.