48 



FOREST AND STREAM. 



|Eeb. -6, 



A MAINE DEER CASE. 



Isaac H. James vs. Thomas P. Wood. 

 Franklin. Opinion December 11, 1889. 



Game. Property. Possession. Illegal capture. Game Warden. 

 Damages. R.S.,c.30,fs !). 



The releasinK of live game, illegally taken, does not interfere with 

 the leer O right or title of the person so holding it. Accordingly, 

 it was held, that the defendant, a game warden without process 

 from a proper court, was not liable to the plaintiff i or releasing 

 a moose from his possession, it having been captured by the 

 plainti ff, at a time of the year, when It wa* unlawful to hunt and 

 take moose. 



There is no property in wild animals until they have been re- 

 duced to possession. Such possession when it dnes not arise 

 from illegal capture, is a Sufficient custody against all persons, 

 ex'-ept such as are clothed with lawful authority or process to 

 take them. 



The defendant, a game warden without legal process having 

 seized a deer in the rightful possession of the plaintiff, claimed 

 to justify his act upon the ground that the animal being in pos- 

 session in close time was proof of its having been unlawfully 

 taken, and that, by virtue of hi« office, he was authorized to take 

 and turn the deer loose. The defendant failed lo show that it 

 had been captur. d in violation of law; the plaintiff was, there- 

 fore, entitled 10 recover the value of the deer. 

 On Motion and Exceptions. 



Th's was an action of trespass, containing two counts; the first 

 for breaking and entering the plaintiff's close on the sixth -lay of 

 June, A. D. 1888, and liberating one moose and one deer; and the 

 second for taking and carrying away, on the same day, such moose 

 and deer. 



The plea was the general issue, with a brief statement justi- 

 fying the taking and liberation of such moose and deer as a game 

 warden. 



It appeared that the plaintiff had captured the moose in the 

 forest, in March of the same year, and carried it to his home and 

 there retained it in an inclosure prepared for the purpose. It also 

 appeared that in the same mouth the plaintiff purchased from 

 some person a deer and likewise retained him, at his home in con- 

 finement, until liberated in the following June. 



The defendant contended that both a»ima.ls were voluntarily 

 turned loose by the plaintiff himself. 



The presiding justice, among other appropriate instructions not 

 excepted lo, charged the jury: 



I. "The defendant says that he went up there and told them 

 that he had come to liberate the animals and commanded them 

 to do it. Afti r the defendant had told the plaintiff that, if the 

 plaintiff himself went and turned the auimals loose, it would be 

 his own voluntary act and it would not charge the defendant with 

 being a trespasser. If, on the other hand, the defendant com- 

 manded the animate to be brought out into the field and he him- 

 self liberated them, without the consent of the plaintiff, that 

 would be an unlawful act and it would be a. trespass. So, after 

 all, you are to say whether or not, when the halters were taken 

 from the animals by the defendant, it was by the plaintiff's con- 

 sent and wish, or was against his consent and against his wish and 

 was done forcibly. That is, was it done because the plaintiff saw 

 fit to liberate them, or was it the defendant's act? If it was the 

 defendant's act? If it was the defendant's act, forcibly, against 

 the plaintiff's wish, then it was a trespass. If, on the other baud, 

 the plaintiff consented to do it because he was commanded to do 

 it by the defendant, then lie has no remedy against the defendant 

 because he was not bound to do it. 



So, after all, are you satisfied by a preponderance of the evidence 

 that the defendant took from the plaintiff's possession these ani- 

 mals? If he did so take them, then, he is guilty under the plain- 

 tiff's writ of forcibly and unlawfully taking these two animals 

 from the plaintiff's possession." 



II. "But the defendant says that those animals were wild ani- 

 mals; that they were captured by the plaintiff, or that the moose 

 was captured by the plaintiff at a time of the year when it was 

 unlawful to hunt and take moose. He says, 'The deer being in 

 possession in close time is proof of its having been unlawfully 

 taken, and consequently I have a right in the State's behalf to 

 take those animals and turn them loose mvself.' He says in his 

 plea that if he did do it he did it by virtue of his authority as 

 game warden. There is no property in wild animals until they 

 have been reduced to possession. If they are unlawfully reduced 

 to possession in violation of the statute, the man who does it is 

 liable for the penalty. He may be fined or imprisoned, as the 

 case may be; but as long as he has those animals in his possession 

 he is entitled to retain them in his custody against every man ex- 

 cept such as are clothed with lawful authority to take them from 

 him. Now, the defendant does not pretend that he had any pre- 

 cept from any court to seize, to attach, or to take the animals 

 from the plaintiff's possession, and I instruct you, as matter of 

 law, that he had no authority, under the evidence in this case, to 

 go and forcibly take those animals from the plaintiff's possession. 

 If the plaintiff be guilty of violating the game law, the courts 

 will punish him for it. If these animals were unlawfully in his 

 possession and subject to seizure, defendant might by process 

 from a proper court take them, but he had no more authority to_ 

 go there and take the animals from the plaintiff's possession andr 

 turn them loose than he would have, Mr. Foreman, in taking your 

 horses and cows or sheep and doing the same thing." 



The verdict was for the plaintiff for $125; $100 for the moose 

 and $25 for the deer. The defendant excepted to the. instruc- 

 tions of the court. 



It seems that the bond which the plaintiff claimed to have 

 given, noticed in the opinion, to obtain possession of tie moose 

 under the statute, was not signed by the plaintiff and was in the 

 form of a bond for goods released from attachment. 



P. A. Sawyer for defendant. 



p. H. Stubbs, W. Fred P. Fogg, J. J. Parlin, with them for 

 plainti ff . 



The plaintiff had lawful possession of the moose and deer, not 

 having killed or destroyed them in violation of law, R. S., c 30, 

 8 13. 



About April ciO, 1888, the moose and deer were seized by one 

 Charles M. Hackett, a game warden, and immediately restored to 

 plain tiff's possession upon his giving bond satisfactory to Hackett. 



Whether plaintiff's possession was lawful or not, it was suffi- 

 cient to enaole him to maintain an action of trespass against a 

 mere wrong-doer. Craig V, G-ilbreth, 47 Maine, &16; Brown v. 

 Ware, 25 id. 411. 



The last of May or first of June, 1888, defendant seized and 

 liberated (he moose and deer under pretense of authority as a 

 game warden— caused them to be led out and himself removed 

 the Halters which confined them and turned them loose. 



The defendant did not have any precept, and did not claim to 

 have any. 



Haskbld, J. Trespass q. c. and d. h. for entering upon the 

 plaintiff's land and liberating a moose and deer there routined. 

 The plaintiff had captured the moose and purchased the deer 

 during close time. The defend an t 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 auy inten tion 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. Wo property exists in wild animals so long as they remain in 

 a state of nature; but, when frilled or reclaimed, ttiev become 

 property; absolutely, when killed, and qualifiedly, when re- 

 claimed; for. when restored to their natural, wild and ftrocious 

 state, the dominion of man over them is at an end, and all prop- 

 erty in them is extinguished. 7 Co. 16 Finch, 176; Kent Com. part 

 V, c. 35, § 2; Blades v. Higgs, 11, H. L. 621. 



Since i hey 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 Slate Co. v. Tilton. 09 Maine, 244; Adams v. McGlinchy, 66 

 Maine, 474; Craig v. ©libretti, 47 Maine, 410; Brown v. Ware, 26 

 Maine, 411; Burke v. Savage, 13 Allen, 408; Magee v. Scott, 9 Gush. 

 148; Armory v. Delamdrie, I 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 ol the deer; for the plaintiff's pos- 

 session of it is sufficient evidence of title until impeached. More- 

 over, the evidence shows that the plaintiff purchased the deer, 

 and fails to show that it has 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. 



III. One cannot justify the taking of a chattel to which he has 

 no title by showing that the person, from whom ho 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 poacuu- 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. Hiegs. supra. 



This r ourt 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 contra* t executed on 

 Sunday; that the price of chattels sold in violation of law can not 

 be recovei ed, and that no action can be maintained on a note 

 given for goods bought to to be peddled contrary to law; that no 

 action for a tort arising from transactions done by the plaintiff in 



inn « t,r»Ti rtf +1>q Cim^i... 1 ~ — 1. - „j„*_j__j mx. ' j. 



originating , u 



tbeir 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 delibera te, purpose of disobeying its 

 enactments. A different course would be suicidal. The law can- 

 not lend its aid to the destruction of its own authority and to the 

 disobedience of its own cemmands." 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 punish- 

 able, and the court say: "It is difficult to perceive bow the pre- 

 vention of an offense constitutes a valid cau*e of action on the 

 part of the would-be offender, who is interfered with in the com- 

 mission of his intended offense. It is still more difficult to under- 

 stand how many damages can have becti sustained by reason of 

 such interference." Railroad Co. v. Smith, 49 Maine,*9. 



Suppose a hunter has his rifle leveled at game in close time, and 

 some one shoves it aside that the game is missed., shall the hunter 

 have damages? He has only been prevented fforn continuing a 

 criminal act. 



Suppose lobsters illegally taken are thrown overboard alive, is 

 he who doos it a trespasser ? Shall the taker of them have dam- 

 ages for his illegal catch ? Or suppose one lands a salmon in vio- 

 lation of law, and a by-stander, while it is yet alive, throws it 

 back in 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 suffered no damages from its being set loose. 



The plaintiff's illegal act prevented the moose from becoming 

 property at all. Not so with the illegal act of a thief, who may 

 nave stolen a coat, for the coat was already property, and had an 

 owner, who alone could lawfully take it from the thief. The pub- 

 lic, whose servant the defendant was, stands in the place of the 

 owner of the coat; care should be taken, therefore, not to con- 

 found the doctrine of this case with the well settled rule of law, 

 that the possession of property is a good title against everybody 

 but the true owner. 



IV. R. S., c. 30, 6 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, where he confined it until it was re- 

 leased 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 cap- 

 ture it. 



The purpose 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 himnoesnecial 

 protection, still duty as an officer called him to interfere and pre- 

 vent a continued violation of the statute. 



The contention that the game had been bonded bv the plaintiff 

 is not sustained. No bond, signed and conditioned as provided 

 by statute was ever given. It was so irregular that it is abso- 

 lutely void. 



Motion and exceptions sustained, unless plaintiff remits $100. 

 Peters, C. J., Walton, Virgin, Emery and Foster, J. J., con- 

 curred. 



THE NEW YORK CODIFICATION BILL. 



AN Act to provide for the revision ani codification of the laws 

 for the protection and preservation of fish and shellfish and 

 of birds and quadrupeds. 



Section 1. A commission to revise and codify the laws of this 

 State for the protection and preservation of fish and shelltish and 

 of birds and quadrupeds is hereby established, as follows: The 

 Attorney-General shall select from among his deputy attorney- 

 generals one member, the Commissioners of Fisheries shall select 

 from among their number one, and the New York Society for the 

 Protection of Game shall select frcm their membership one; and 

 the three persons so selected shall constitute the said commission. 

 Certificates of these appointments shall be filed in the office of the 

 Secretary of State and of the Comptroller. The members of the 

 said commission shall meet at the Capitol in thetity of Albany, 

 at such time as shall be appointed by the Attorney-General, and 

 shall organize try the appointment of one of thei r number as chair- 

 man and another as secretary, and shall proceed to revise and 

 codify the laws of this State for the protection and preservation 

 of fish and shellfish and of birds and quadrupeds, and report such 

 codification to the Legislature on or before the 15th day of Janu- 

 ary. 1891. 



feEC. 3. The said commission may grant hearings and take testi- 

 mony at such times and places as they shall appoint, with refer- 

 ence to the subject committed to them, and shall have authority 

 to administer oaths to witnesses and to employ sueh clerical and 

 stenographic assistance as they actually need in the prosecution 

 and completion of their work. 



Sec. 3. Each member of the said commission shall be entitled 

 to compensation at the rate of $3 for each day's actual and neces- 

 sary services, and all the members of the commission shall be 

 allowed their actual expanses of travel and subsistence while en- 

 gaged in such service. The commission shall be allowed its actual 

 and necessary incidental expenses; and all accounts rendered by 

 the commission or its individual members shall be. subject to the 

 audit of the Comptroller. 



Sec. 4. The sum of S5.000, or so much thereof as shall be neces- 

 sary, is hereby appropriated out of any money in the tr.easurv not 

 otherwise appropriated, for the purpose of this act. 



Sec. 5, This act shall take effect immediately. 



"That reminds me." 

 298. 



ALL good anglers live to be old— barring accidents. 

 Most of those who have reached a good old age 

 have felt called upon to visit that very useful individual 

 who generally has a nicely appointed apartment, one of 

 the principal articles of furniture being a lean-back high 

 chair. When you visit him you take a seat, with fear 

 and trembling, in the aforesaid chair, shut your «yes, 

 swear inwardly, if not outwardly, and await the inevit-* 

 able pull. Well, General Bragg, of the "Iron Brigade," 

 had been in the hands of one of the profession and was 

 consequently sans teeth, but not — as the sequel will show 

 —sans sand. He was away up the Little Sioux River, in 

 Bayfield county, Wis., trouting. The undergrowth near 

 the water and the limbs of trees overhanging the stream 

 made fly-casting impossible, and the General had been 

 using fins as bait. Unfortunately he lost his knife just 

 as he lost the last fin from his hook. There he was. 

 eighty miles from a house in one direction, and four in 

 another, with nothing to cut bait and not a tooth in his 

 head. But he had not gone through the war without a 

 good deal of nerve, and some of it was left; he set too 

 and with his gums gnawed the dorsal fin off a trout and 

 went on down the stream. But he took excellent care of 

 that fin. Jaj. 



ANGLING NOTES. 



IF the pleasure of angling consisted enly in taking fish, 

 the majority of fishermen would soon tire of it, even 

 if all the fish were salmon; but fortunately there is a 

 great deal more in angling than the mere fact of killing 

 so many pounds of the finny tribe, otherwise it would 

 be far cheaper and easier to go to the nearest market and 

 buy them. 



So much has been said and written from thp time of 

 Walton to the present day in praise of the charms of 

 angling that it seems superfluous to dwell on that sub- 

 ject, yet true lovers of the "'gentle art" never tire of it. 

 Such of our readers who have enjoyed reading Dawson's 

 "Pleasures of Angling," Prime's "I Go a Fishing," or 

 Dean Sage's noble book on the saltnon, can understand 

 the underlying current of sentiment that stirs the angler's 

 soul when there is any talk of trout brooks or salmon 

 rivers. 



There is a Free Masonry about angling that will make 

 the greatest strangers feel like brothers within fifteen 

 minutes after the subject has been introduced, and even 

 the possession of a bundle of rods when traveling seems 

 to cause railroad and steamboat men to thaw out toward 

 the owner and raise him above the common herd in their 

 estimation. 



One of the greatest charms of angling is the pleasure 

 we take in looking forward to our trips. As the season 

 advances and the first signs of spring appear, we begin 

 our preparations for excursions that have been planned 

 and talked over for weeks and months. Our tackle is all 

 overhauled, rods varnished, reels oiled and fly-books re- 

 filled: and when the apple blossoms are out we feel we 

 must go and wet a line, though our good sense tells us it 

 is yet two weeks too early. But the fever is upon us and 

 nothing but wading a cold trout brook will bring relief. 

 And what a pleasure it is after the weary months of 

 waiting to stand act last on the banks of a favorite trout 

 stream, threading the line eagerly through the rings of 

 our trusty little rod, while overhead the woodrobm is 

 singing the same charming song he sang last spring, and 

 the sunbeams filter through the delicate green foliage, 

 flecking the rushing water with gold. 



And then again, when the season is over and our rods 

 laid away, what stories we have to tell when kiadred 

 spirits meet to smoke and chat over the past. How every 

 little incident is dwelled upon and every big fish retaken. 

 These pleasures are not for the fish killer, plague take 

 them, Not for the man who brags about catching one 

 hundred and so and so many fingerlings in two hours and 

 ten minutes, and has not time to stop and enjoy the 

 purple mountains or the deep blue sk"y, nor even take 

 time for lunch. And speaking of lunch, the angler who 

 has not tried Uncle Thad Norris's trout roast on the 

 stream has missed one of the greatest charms of angling. 



ON THE NORTH SHORE.-I1. 



A THREE WEEKS' TROUTING TRIP ON THE NORTH SHOKF. 

 OF LAKE SUPERIOR. 



WE had breakfast quite early in the morning and were 

 soon aboard and plying the oars, with the wind 

 still dead ahead. It took us till noon to reach Gros Cap, 

 and by this time the wind was so strong that we were 

 compelled to land at a pier at the feot of a towering hill 

 just one mile from Gros Cap Island. Our boatmen were 

 somewhat fatigued by the long pull, and were wishing 

 deep down in their hearts that a favorable wind might 

 come to their relief. We soon had the pot boiling and 

 the pans steaming with our choicest meats and vege- 

 tables, and in less than half an hour sat down to a meal 

 that we relished better than any menu, a Delmonico laight 

 have prepared. The cooking was really excellent, but 

 the appetite was what made everything so very relish- 

 able. Under such a favorable condition, criticism of the 

 cuisine was out of the question. It is only when the 

 palate fails that you are in a grumbling humor with the 

 daintily prepared viands. Joe was as valuable to us as 

 would have been Vanderbilt's ten thousand dollar im- 

 ported chef. At this place the lake enlarges rather sud- 

 denly, so that Gros Cap and Point Iroquois— the pillars of 

 Hercules, as some one calls them— are six or seven miles 

 apart. This is really the true entrance to the Great Lake, 

 though some geographer has thought proper to call all 

 the water from here to Coppermine Point on the Canadian 

 side and White Fish Point on the American, White Fish 

 Bay. The rocky point, which here rises some hundreds 

 of feet in height, is covered near the shore line with veg- 

 etation, while as it ascends forests of white pine, birch 

 and aspen prevail, until the top of the highland is reached , 

 and then "the evergreen is visible. Almost the entire 

 shore of the north side of this great reservoir of pure 

 water is of a bold and rocky nature, but occasionally a 

 line of the smoothest beach intervenes, as if for the very 

 purpose of affording protection to the dusky voyager in 

 his birchen canoe. The bluffs are generally of a green 

 sandstone, and frequently tower to the height of 500ft. , 

 like massive bulwarks, which seem to have battled with 

 the elements for ages. Seen in the soft silvery light of a 

 serene sky, those broad highland regions, dark with 

 aspiring pines and firs, present a picture of rare and im- 

 pressive beauty. "Hills peep o'er lulls, and Alps on Alps 

 arise." 



It was simply impossible to do any angling from the 

 boat at this locality with such a strong wind as was now 

 prevailing, nor could rock fishing be indulged in with 

 any degree of comfort or safety , as the rocks were entirely 

 attoo sbarp an angle for a secure foothold. Our boatmen, 

 however, thought they were sure-footed enough to stand 

 and fish from the declivitous rocks, so we let them have 

 our rods, and away they went over the steep hill in search 

 of some rocks they thought they could safely cast from. 

 Ned and 1 got down to our usual amusement of crib 

 after they had departed, but the unruly winds tossed our 

 cards so frequently from the table that we were obliged 

 to discontinue the game. 



We then ascended the high and rugged hill and took 

 in the beautiful panorama presented of lake, shore and 

 island. The sun was shining brightly, bathing Gros Cap 

 Island, which lay almost at our very feet,, in a robe of 



