James v. Wood

Haskell, J.

Trespass q. c. and d. b. for entering upon the plaintiff’s land and liberating a moose and deer there confined. The plaintiff had captured the moose and purchased the deer during close time. The defendant justifies as game warden.

I. The defendant cannot be considered as having seized the game under any provision of statute, inasmuch as he held no precept, either to arrest the defendant, or to seize the game; nor does he pretend that he ever had any intention of procuring one. His testimony, that he acted by the consent of the plaintiff was not believed by the jury; and as the evidence is conflicting upon that point, the court cannot say that the finding of the jury was wrong.

II. No property exists in wild animals so long as they remain in a state of nature; but, when killed or reclaimed, they become property; absolutely, when killed, and qual'ifiedly, when reclaimed ; for, when restored to their natural, wild and ferocious *177 state, the dominion of man over them is at an1 end, and all property in them is extinguished. 7 Co. 16 Finch. 176; Kent. Com. part V, c. 35, § 2; Blades v. Higgs, 11, H. L. 621.

Since they are the subjects of property, their possession must be prima facie title, as with all other chattels, and sufficient to support an action concerning them against any wrong-doer. Union State Co. v. Tilton, 69 Maine, 244; Adams v. McGlinchy, 66 Maine, 474; Craig v. Gilbreth, 47 Maine, 416; Brown v. Ware, 25 Maine, 411; Burke v. Savage, 13 Allen, 408 ; Magee v. Scott, 9 Cush. 148 ; Armory v. Delamirie, 1 Stra. 504.

The burden is, therefore, upon the defendant to justify his act if he would defeat the action. Hodsdon v. Kilgore, 77 Maine, 155. He has not justified the taking of the deer; for the plaintiff’s possession of it is sufficient evidence of title until impeached. Moreover, the evidence shows that the plaintiff purchased the deer, and fails to show that it had been captured in violation of law. He, therefore, is entitled to recover the value of the deer. The instructions of the presiding justice relating to the deer were correct ; and the evidence sustains the verdict for its value.

HI. One cannot justify the taking of a chattel to which he has no title by showing that the person, from whom he took it, is not the owner. Fiske v. Small, 25 Maine, 453. But, if the subject of the asportation had not become property at all, then the loss of it occasioned no damage. A poacher, who has killed game and thereby made it absolutely property, takes no title to it as against the owner of the soil whose property it would have been, had he killed it. Blades v. Higgs, supra.

This court has said in substance, that the law protects the title or claim of no one that arises from a violation of law. It has held that no action can be maintained upon a contract executed on Sunday; that the price of chattels sold in violation of law can not be recovered, and that no action can be maintained on a note given for goods bought to be peddled contrary to law; that no action for a tort arising from transactions done by the plaintiff in violation of the Sunday laws can be maintained. The court says: “The law distinguishes between rights acquired in conformity with and arising under its provisions, and claims originating in *178 their clear and palpable violation; that it will not enforce claims made in contravention of its mandates, nor protect property held against and being used for the deliberate purpose of disobeying its enactments. A different course would be suicidal. The law cannot lend its aid to the destruction of its own authority and to the disobedience of its own commands.” Lord v. Chadbourne, 42 Maine, 429, 439.

Damages were claimed for preventing the plaintiffs from doing an illegal act, which, if done, would have been criminally punishable, and the court say: “It is difficult to perceive how the prevention of an offense constitutes a valid cause of action on the part of the would be-offender, who is interfered with in the commission of his intended offense. It is still more difficult to understand how any damages can have been sustained by reason of such interference.” Railroad Co. v. Smith, 49 Maine, 9.

Suppose a hunter has his rifle levelled at game in close time, and some one shoves it aside so that the game is missed, shall the hunter have damages ? He has only been prevented from continuing a criminal act.

Suppose lobsters illegally taken are thrown overboard alive, is he who does it a trespasser ? Shall the taker of them have damages for his illegal catch? Or suppose one lands a salmon in violation of law, and a by-stander, while it is yet alive, throws it back into the water, shall the fisherman have the value of the salmon that the law forbids his having at all ?

When game is killed, it absolutely becomes property, but when taken alive, only conditionally so; for, when released, property in it is gone. So long, then, as the possession of live game is illegal, qualified property in it, is illegal also.; and the releasing of such game interferes with no legal right or title of the person illegally holding it captive.

The plaintiff’s possession of the moose was prima facie title; but, when it appears that his possession was gained in violation of law, it cannot be that the same law will say that his illegal act gave him a legal title. And if he had no legal title to the moose, he has suffered no damages from its being set loose.

The plaintiff’s illegal act prevented the moose from becoming *179 property at all. Not so with the illegal act of a thief, who may have stolen a coat, for the coat was already property, and had an owner, who alone could lawfully take it from the thief. The public, whose servant the defendant was, stands in the place of the owner of the coat; care should bo taken, therefore, not to confound the doctrine of this case with the well settled rule of law, that possession of property is a good title against everybody but the true owner.

IV. R. S., c. 30, § 9, provides: “No person shall (during close time) in any manner hunt, kill or destroy any moose under * * penalty” of $100. The plaintiff followed the moose in the forest until it became snow-bound, and then, by the use of a rope, tied it to a tree, and finally bound it upon a sled, and hauled it some fifteen miles to his home, whore he confined it until it was released by defendant. Without doubt this conduct resulting in capture was in violation of the statute. The plaintiff did not destroy or kill the animal, but he did hunt and thereby capture it.

The pui'pose and scope of the statute is to give moose absolute immunity from the vexations of men during a portion of each year, deemed, by the legislature, necessary for their preservation and protection, and to prevent their decimation and extinction. The defendant’s act, therefore, was meritorious and in aid of the purpose of the statute; and while his authority gave him no especial protection, still, duty as an officer called him to interfere and prevent a continued violation of the statute.

The contention that the game had been bonded by the plaintiff is not sustained. No bond, signed and conditioned as provided by statute, was ever given. It was so irregular that it is absolutely void.

Motion and exceptions sustained, unless plaintiff remits $100.

Peters, C. J., Walton, Virgin, Emery and Poster, JJ., concurred.