Dapson v. Daly

Rugg, C.J.

This is an action of replevin to recover the carcass of a deer. There was evidence tending to show that both the plaintiff and defendant were on the same day and in the open season hunting deer; that the plaintiff and his companion fired shots at the deer in question and that, shortly thereafter, while the deer was galloping although it may have fallen before, the defendant also fired a shot, whereupon it immediately fell and was dead when he reached it; and that the defendant carried it away.

The finding was that the trial judge was not satisfied that the deer, an animal ferae naturae, was so wounded by the plaintiff that it was about to be deprived of its natural liberty, and that the fatal shot was fired by the defendant. There was evidence to support these findings. Hence they must stand. Moss v. Old Colony Trust Co. 246 Mass. 139, 143 .

In this Commonwealth the title to wild animals and game is in the Commonwealth in trust for the" public, to be devoted to the common welfare. The Legislature has made provision for the hunting of deer during a restricted period *197 by those duly licensed. G. L. c. 131, §§ 3, 62, 63. These regulations are valid. The right to hunt deer exists and can be exercised only in accordance therewith. Commonwealth v. Hilton, 174 Mass. 29, 31 . Geer v. Connecticut, 161 U. S. 519 .

The plaintiff in the case at bar failed to show that he was duly authorized by law to hunt. Unless so licensed, he was not entitled to the rights of a huntsman. It was an essential part of his case to show that he was a lawful huntsman before he could invoke in his own behalf the law of the chase. The plaintiff, in order to prevail, was bound to show title in himself and could not rely on the weakness of the defendant’s rights. Davis v. Smith-Springfield Body Corp. 250 Mass. 278, 284 . The plaintiff never acquired physical possession of the deer. The first step toward showing title in himself was to prove that he was licensed to hunt. The nature of the plaintiff’s claim was such as not to require the defendant to set up in his answer the illegal conduct of the plaintiff. The burden of proof in this as in all other essential particulars was on the plaintiff. Wylie v. Marinofsky, 201 Mass. 583 . See Conroy v. Mather, 217 Mass. 91 , and cases there collected.

The plaintiff bases his case on the ground that he was pursuing and had wounded a deer during the open season and was therefore entitled to its ownership, even if the mortal wound was given by the defendant. It is conceded that the deer in question was a wild animal not doing damage to property. The controlling principle of the common law is that the huntsman acquires no title to a wild animal by pursuit alone, even though there is wounding, unless the animal is followed up and reduced to occupation, that is, to actual possession. Pierson v. Post, 3 Cairnes, 175, where the authorities are reviewed. Buster v. Newkirk, 20 Johns. 75 . Young v. Hichens, 6 Q. B. 606. 1 Bract. (Twiss’s Ed.), 2d Book, c. 1, § 3. On this point the finding of fact was against the plaintiff. It cannot be set aside on this record.

It follows that there was no error of law in the denial or granting of requests for rulings.

Order dismissing report affirmed.