Rosenfeld v. Jakways
| Decision Date | 19 June 1923 |
| Docket Number | 5226. |
| Citation | 216 P. 776,67 Mont. 558 |
| Parties | ROSENFELD v. JAKWAYS, GAME AND FISH WARDEN, ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Cascade County; J. B. Leslie, Judge.
Action by Annie Rosenfeld against C.J. Jakways, as Game and Fish Warden in and for the State of Montana, and another. Judgment for defendants, and plaintiff appeals. Affirmed.
O'Leary & Doyle, of Great Falls, for appellant.
W. D Rankin, Atty. Gen., and Frank Woody, Asst. Atty. Gen., for respondents.
In her complaint plaintiff alleges that on March 9, 1922, she was the owner, in possession, and entitled to the possession of 98 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: Does 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 P. 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, 16 S.Ct. 600, 40 L.Ed. 793; 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 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, 37 P. 402, 42 Am. St. Rep. 129; State v. Weber, 205 Mo. 36, 102 S.W. 955, 10 L. R. A. (N. S.) 1155, 120 Am. St. Rep. 715, 12 Ann. Cas. 382; Jones v. Metcalf (Vt.) 119 A. 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 P. 556.
In the proper exercise of its power this state prohibits absolutely the killing of certain wild animals. Sections 3700 and 3719, Rev. Codes 1921. It prohibits the killing of others 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 30 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 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...
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