The people of the state may protect their 

 public property in the manner best suited to 

 accomplish the purposes for which the law was 

 enacted but in doing so they may not 

 disregard the natural and inalienable rights 

 of individuals. State v. Rathbone , 110 M. at 

 239. 



Within Rathbone is the basis of the recognition that 

 landowners must tolerate a certain level of use by 

 wildlife. The court also stated that the following are 

 prerequisites of the use of force by a landowner: 



(1) he must have exhausted all other remedies 

 provided by law; (2) the use of such force must 

 be reasonably necessary and suitable to protect 

 his property; and (3) he must use only such 

 force and means as a reasonably prudent man 

 would use under like circumstances. 



In State ex rel. Sackman v. St. Fish and Game 

 Commission , 151 M. 45, 438 P. 2d 663 (1968), the Supreme 

 Court examined the scope of the Department's authority 

 under the forerunner of the current wildlife damage law 

 to determine the state's response to a landowner's 

 complaint of wildlife damage. (The statutes are 

 identical in all parts relevant to this discussion.) 

 The court found that the statute requires only that the 

 Department investigate all complaints of wildlife 

 damage. Beyond that, the statute neither requires the 

 Department to respond to complaints with any particular 

 action nor requires the Department to take any remedial 

 action at all. Further, the court stressed that 

 "injury to property by wild animals must be of 

 considerable extent to warrant killing out of season or 

 contrary to law." 



8 



