Cohen v. Kauppi

• Decision Date: 28 October 1927
• Docket Number: No. 26220.,26220.
• Citation: 215 N.W. 837,172 Minn. 469
• Parties: COHEN et al. v. KAUPPI.
• Court: Minnesota Supreme Court

215 N.W. 837

172 Minn. 469

COHEN et al. v. KAUPPI.

No. 26220.

Supreme Court of Minnesota.

October 28, 1927.

Appeal from District Court, St. Louis County; C. R. Magney, Judge.

Replevin by Sam Cohen and another, copartners, doing business as the Hudson Bay Fur Company, against Charles Kauppi. Verdict for defendant. From an order denying their motion for judgment notwithstanding or a new trial, plaintiffs appeal. Affirmed.

Goldberg & Cohen, of Duluth, for appellants.

C. L. Hilton, Atty. Gen., and Chester S. Wilson, Asst. Atty. Gen., for respondent.

STONE, J.

Replevin for 26 beaver skins. After a verdict for defendant, plaintiffs appeal from the order denying their motion for judgment notwithstanding or a new trial.

Defendant is a state game warden and confiscated the furs. They carried no "retaining tags" or other indicia of the legality of either their taking or subsequent possession. There can be no serious question that the evidence supports the verdict, which rests upon the conclusion that the skins were contraband. Plaintiffs' claim is that the skins were part of a lawful importation of Canadian beaver. The whole evidence, including the testimony of at least one of plaintiffs' witnesses, puts that position under a cloud of doubt.

The one question now is whether it was error to charge the jury that the burden was upon the plaintiffs "to prove, by a fair preponderance of the evidence, that these 26 beaver skins, which were untagged, were lawfully in their possession." A brief consideration of applicable statutes is sufficient to establish the propriety of that charge.

The major premise of our game laws is that the ownership of wild animals, "so far as they are capable of ownership," is in the state, "not as a proprietor, but in its sovereign capacity as the representative and for the benefit of all its people in common." Section 5496, G. S. 1923; Waldo v. Gould, 165 Minn. 128, 206 N. W. 46. There may be possession and ownership by individuals, but only if acquired and evidenced in the manner provided by law. This applies to the pelts of fur-bearing animals. By section 5543, G. S. 1923, not only the taking but also the molestation or disturbance of beaver is prohibited, except that limited numbers may be taken under the express license of the commissioner in the event that the animals become so numerous in any locality that a limited number can be taken without undue depletion. The section provides for the issue of a distinctive tag, known...