Graves v. Dunlap

• Decision Date: 05 November 1915
• Docket Number: 12510.
• Citation: 87 Wash. 648,152 P. 532
• Parties: GRAVES v. DUNLAP et al.
• Court: Washington Supreme Court

152 P. 532

87 Wash. 648

GRAVES v. DUNLAP et al.

No. 12510.

Supreme Court of Washington

November 5, 1915

Department 2. Appeal from Superior Court, Spokane County; J. Stanley Webster, Judge.

Action by Jay P. Graves against F. G. Dunlap and another. Judgment for plaintiff, and defendants appeal. Remanded, with directions.

John M. Gleeson, of Spokane, for appellants.

Graves Kizer & Graves, of Spokane, for respondent.

MAIN J.

The purpose of this action was to establish the plaintiff's ownership and right to possession of certain game animals and birds, and to restrain the defendants, the game warden and the prosecuting attorney of Spokane county, from interfering with or disturbing the plaintiff's ownership and right to the possession of the animals, and birds in question. After the issues were framed, the cause was tried to the court sitting without a jury, and resulted in a judgment sustaining the plaintiff's right to ownership and possession, and restraining the defendants from beginning or prosecuting any criminal action against the plaintiff on account of his possession of the wild animals and birds referred to. From this judgment the defendants appeal.

The facts are not in dispute, and are in substance as follows The plaintiff, during the year 1901, and prior thereto, and at the present time, owns a farm, consisting of several hundred acres of land, a few miles north of the city of Spokane. Upon this farm there has been kept a herd of dairy cattle. During the winter of 1901 a doe with a broken leg came into the herd of cattle upon the farm. This doe, by the respondent, or by the employés upon his farm, was placed in a box stall in the barn and taken care of until she recovered, when she was put into an inclosure. The following season a buck was given to the respondent by one of the men employed by him. To these deer and their increase the respondent occasionally added from outside herds. Because inbreeding causes a herd to deteriorate, on several occasions bucks were exchanged from the herd for bucks in city parks of Spokane and Tacoma. During the early years of the herd, and on two occasions, does from without the state were given to the respondent by friends. The doe and buck first acquired are still living. These, with the increase, and such bucks as have been procured by exchange, and their increase, made up a herd of about 20 deer in the fall of the year 1913. This herd is kept on the respondent's farm in an inclosure containing 15 or 20 acres, which is surrounded by a high woven wire fence, to which entry can only be gained by gates. During the summer there is sufficient feed in the inclosure to sustain the deer, but in the winter it is necessary to feed them. Workmen on the farm look after them all the year round, and gove them the attention that is given to cattle and other animals. The deer are not permitted to be without the inclosure.

The respondent also has certain fowls, including swans, wood ducks, pheasants, etc. Eight of the swans are birds obtained in the year 1902, with their increase. Four of the swans were purchased in the state of Massachusetts for breeding purposes in the year 1913. These swans have their nesting places around the lakes on the farm, and are fed and taken care of as purely domestic fowls. The remainder of the fowls are kept in inclosed or covered runways in the respondent's poultry yards. These were purchased in various parts of the United States and Canada. For one pair of Reeves pheasants $85 was paid. For one pair of Amherst pheasants about $100 was paid. The fowls are not used for food, nor killed, and none have been sold, though the respondent has given away one or two pairs of pheasants for breeding purposes.

The appellants claim that the respondent has no right to keep the deer and the fowls in the inclosure, and that both the deer and the fowls are subject to the same regulation by the Legislature as is the wild game of the state. The respondent claims that he has a property right in the deer and the fowls, and that therefore it cannot be taken away by act of the Legislature without due compensation being first made. The question, therefore, is whether the respondent had acquired a property right in the deer and birds which he was entitled to have protected.

Animals ferae naturae are known by the denomination of 'game.' 1 Cooley, Blackstone (4th Ed.) p. 758. The respondent's deer and fowls come within the term 'game,' unless by the fact of their reclamation and confinement there has been acquired a property right therein which is not recognized in wild game. Without reviewing the early common law upon the subject of game, it may be said that the recognized doctrine is that the title to game belongs to the state in its sovereign capacity, and that the state holds this title in trust for the use and benefit of the people of the state. The state, through its Legislature, has the right to control for the common good the killing, taking, and use of game, so long as the rights guaranteed either by the state or federal Constitution are not encroached upon. In Cawsey v. Brickey, 82 Wash. 653, 114 P. 938, it was said:

'Under the common law of England all property right in animals ferae naturae was in the sovereign, for the use and benefit of the people. The killing, taking, and use of game was subject to absolute governmental control for the common good. This absolute power to control and regulate was vested in the colonial governments as a part of the common law. It passed with the title to game to the several states as an incident of their sovereignty, and was retained by the states for the use and benefit of the people of the states, subject only to any applicable provisions of the federal Constitution.'

See, also, Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793. Many other decisions to the same effect might be cited, but the multiplication of authorities upon this question is hardly necessary.

While animals ferae naturae belong to the state, as indicated, yet, when they are reclaimed by the art and power of man, they are the subject of property, and a property right thereto may be acquired. In 2 Cooley, Torts (3d Ed.) p. 838, the author says:

'There is no property in wild animals until they have been subjected to the control of man. If one secures and tames them, they are his property; if he does not tame them, they are still his, so long as they are kept confined and under his control.'

In 2 Kent, Commentaries (14th Ed.) p. *348, upon the same question, the author observes:

Animals ferae naturae, so long as they are reclaimed by

the art and power of man, are also the subject of a qualified property; but when they are abandoned, or escape, and return to their natural liberty and ferocity, without the animus revertendi, the property in them ceases. While this qualified property continues, it is as much under protection of law as any other property, and every invasion of it is redressed in the same manner.'

See, also, to the same effect, 1 Cooley, Blackstone (4th Ed.) p. 743.

It will be noticed from the excerpt quoted from Kent that the author uses the term 'qualified property.' Many of the decisions which discuss the question use the same term. The appellants contend that, since the property right is a qualified one, the state, in the exercise of its police power, can take it away with impunity. But the qualified property referred to is a property right which is defeasible upon a condition subsequent, which may or may not happen. This condition is that, if the animals return to their wild state, the property right ceases. That the property right is a defeasible one is recognized by Blackstone. In 1 Cooley, Blackstone (4th Ed.) p. 744, referring to this subject, it is said:

'In all these creatures, reclaimed from the wildness of their nature, the property is not absolute, but defeasible; a property that may be destroyed if they resume their ancient wildness and are found at large. For if the pheasants escape from the mew, or the fishes from the trunk, and are seen wandering at large in their proper element, they become ferae naturae again, and are free and open to the first occupant that hath ability to seize them. But while they thus continue my qualified or defeasible property, they are as much under the protection of the law as if they were absolutely and indefeasibly mine; and an action will lie against any man that detains them from me, or unlawfully destroys them.'

Animals ferae naturae, if reclaimed and kept in inclosed ground, are property which will pass to the executors and administrators of a deceased person. In Dieterich v. Fargo, 194 N.Y. 359, 87 N.E. 518, 22 L. R. A. (N. S.) 696, quoting with approval from 1 Halsbury's Laws of England, § 799, it was said:

'Deer, though strictly speaking ferae naturae, if reclaimed and kept in inclosed ground, are the subject of property, pass to the executors, and are liable to be taken in distress.'

Animals ferae naturae are also, while they are reclaimed, the subject of larceny. In State v. Shaw, 67 Ohio St. 157, 65 N.E. 875, 60 L. R. A. 481, it is said:

'To acquire a property right in animals ferae naturae, the pursuer must bring them into his power and control, and so maintain his control as to show that he does not intend to abandon them again to the world at large. When he has confined them within his own private inclosure, where he may subject them to his own use at his pleasure, and maintains reasonable precautions to prevent escape, they are so impressed with his proprietorship that a felonious taking of them from his inclosure, whether trap, cage, park, net, or whatever it may be, will be larceny.'

It would seem that if wild animals, when reclaimed, will pass to the executors...