Barrett v. State
| Citation | 220 N.Y. 423,116 N.E. 99 |
| Parties | BARRETT et al. v. STATE. |
| Decision Date | 17 April 1917 |
| Court | New York Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Third Department.
Action by William G. Barrett and others against the State of New York. From a judgment of the Appellate Division (158 N. Y. Supp. 1055), affirming a determination of the Court of Claims for plaintiffs, the State appeals. Judgment reversed.Demund H. Lewis, of Syracuse, for the State.
Charles C. Fenno, of White Plains, for respondents.
At one time beaver were very numerous in this state. So important were they commercially that they were represented upon the seal of the New Netherlands and upon that of the colony as well as upon the seals of New Amsterdam and of New York. Because of their value, they were relentlessly killed, and by the year 1900 they were practically exterminated. But some 15 animals were left scattered through the southern portion of Franklin county. In that year the Legislature undertook to afford them complete protection, and there has been no open season for beaver since the enactment of chapter 20 of the Laws of 1900.
In 1904 it was further provided that:
‘No person shall molest or disturb any wild beaver or the dams, houses, homes or abiding places of same.’ Laws 1904, c. 674, § 1.
This is still the law, although in 1912 the forest, fish, and game commission was authorized to permit protected animals which had become destructive to public or private property to be taken and disposed of. Laws 1912, c. 318.
By the act of 1904, $500 was appropriated for the purchase of wild beaver to restock the Adirondacks, and in [220 N.Y. 426]1906 $1,000 more was appropriated for the same purpose. The commission, after purchasing the animals, was authorized to liberate them. Under this authority 21 beaver have been purchased and freed by the commission. Of these 4 were placed upon Eagle creek, an inlet of the Fourth Lake of the Fulton Chain. There they seem to have remained and increased.
Beaver are naturally destructive to certain kinds of forest trees. During the fall and winter they live upon the bark of the twigs and smaller branches of poplar, birch, and alder. To obtain a supply they fell even trees of large size, cut the smaller branches into suitable lengths, and pull or float them to their houses. All this it must be assumed was known by the Legislature as early as 1900.
The claimants own a valuable tract of woodland upon Fourth Lake bounded in the rear by Eagle creek. Their land was held by them for building sites and was suitable for that purpose. Much of its attractiveness depended upon the forest grown upon it. In this forest were a number of poplar trees. In 1912 and during two or three years prior thereto 198 of these poplars were felled by beaver. Others were girdled and destroyed. The Court of Claims has found, upon evidence that fairly justifies the inference, that this destruction was caused by the four beaver liberated on Eagle creek and their descendants, and that by reason thereof the claimants have been damaged in the sum of $1,900. An award was made to them for that sum, and this award has been affirmed by the Appellate Division. To sustain it the respondents rely upon three propositions. It is said: First, that the state may not protect such an animal as the beaver which is known to be destructive; second, that the provision of the law of 1904 with regard to the molestation of beaver prohibits the claimants from protecting their property, and is therefore an unreasonable exercise of the police power; and, third, that the state was in actual physical possession of the beaver placed on Eagle creek, and that its act in freeing them, knowing their natural propensity to destroy trees, makes the state liable for the damage done by them.
We cannot agree with either of these propositions.
[1] As to the first, the general right of the government to protect wild animals is too well established to be now called in question. Their ownership is in the state in its sovereign capacity, for the benefit of all the people. Their preservation is a matter of public interest. They are a species of natural wealth which without special protection would be destroyed. Everywhere and at all times governments have assumed the right to prescribe how and when they may be taken or killed. As early as 1705, New York passed such an act as to deer. Colonial Laws, vol. 1, p. 585. A series of statutes has followed protecting more or less completely game, birds, and fish.
Phelps v. Racey, 60 N. Y. 10, 14,19 Am. Rep. 140.
Wherever protection is accorded, harm may be done to the individual. Deer or moose may browse on his crops; mink or skunks kill his chickens; robins eat his cherries. In certain cases the Legislature may be mistaken in its belief that more good than harm is occasioned. But this is clearly a matter which is confided to its discretion. It exercises a governmental function for the benefit of the public at large, and no one can complain of the incidental injuries that may result.
It is sought to draw a distinction between such animals and birds as have ordinarily received protection and beaver, on the ground that the latter are unusually destructive and that to preserve them is an unreasonable exercise of the power of the state.
[2] The state may exercise the police power Lawton v. Steele, 152 U. S. 133, 136, 14 Sup. Ct. 499, 501 (38 L. Ed. 385).
[3] The police power is not to be limited to guarding merely the physical or material interests of the citizen. His moral, intellectual, and spiritual needs may also be considered. The eagle is preserved, not for its use, but for its beauty.
The same thing may be said of the beaver. They are one of the most valuable of the fur-bearing animals of the state. They may be used for food. But apart from these considerations, their habits and customs, their curious...
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