Oct. 3i, im ] 
FOREST AND STREAM. 
^41 
driven out by the deer is tfufe, ^yill before trlatty y^afS 
become once more plentiful in this State. Already they 
are being reported quite often by sportsmen and other 
hunters, and they have one caribou in Aroostook County 
that is attracting widespread attention. This anirrtal his 
joined the flock of sheep owned by a farmer in Ltidlow, 
Hot far from Houltoil, ahd whetevef those 3heep go^ so, 
IbOj does the cai-ibbu gb, and nothing \yili seemingly drive 
the creature ftom its adopted friends, tt is as little 
ifi-aid of humanity ai tile shefep it mingles with, and 
riiany people have driven from all the country around to 
sete th'e unusual sight. 
Bears continue to form a most interesting feature of 
the shipments to and through this city, and there has been 
a considerable number of moose brought out of the woods 
by sportsmen. Robert B. Blair, of Brewer, joined a party 
of friends from Springfield, Me,, for a trip into the re- 
gion beyond that town, and two of the party killed bull 
moose, while there were several seen. They report that 
moose were wonderfully plentiful in that locality, and 
they had no trouble in getting what they wanted. 
It is not likely that many parties will have the great 
luck of seven jolly traveling men who spent two days in 
camp on Sugar Island, Moosehead Lake. There were in 
the party Charles S. Oilman, of Portland; Whit. Sawyer, 
F. H. Lathrop, Charles PeeHng, Harry Peeling, Charles 
Small, and A. S. Tripp, of Boston, and they not only 
killed what deer they wanted, but added three bears to 
the record for this fall. 
Dr. W. B. French, of Boston, started out with his 
guide the other morning from Five Islands in Schoodic 
Lake, and his guide, Charles Hoxie, of Orneville, took 
him to a good moose section beyond Seboois Lake. When 
the morning train from Bangor reached Milo, these men 
got aboard to ride to Schoodic, having killed, dressed and 
hung up two moose, and reached Milo in time for the 
train. It was a great morning's hunt. 
Some others of the successful moose hunters include 
A. G. McClintock, of Washington, ,D, C, who has been 
at Nesowadnehunk Lake; N. L. Millard, North Adams, 
Mass., who has been at Trout Pond, near Grindstone; 
Ernest E. Rogers, of New London, Conn., who shot his 
moose at Webster Brook ; Frank N. Houghton, of 
Somersworth, N. H., who made his hunting grounds 
around Fish Lake in the North Aroostook country; P. 
S. Noble, of St. Louis, Mo., who was in the Ox I5_ow 
region, going up the Aroostook to . satisfactory hunting 
grounds. Dr. V. R. Gardner, of Factoryville, Pa., was 
one of a party that went into camp at Shin Pond, reached 
via Patten, and he killed a fine moose, with antlers 
spreading 51 inches; a very nice specimen. N. Ricker, 
of Llolyokc, Mass., went home after an outing at the 
East Branch of the Penobscot, satisfied with a moose, a 
bear and two deer; Joseph G. Vaudreuil, of Worcester, 
Mass., secured his moose on or near Sandy stream, a 
tributary of Millinockett Lake. 
Herbert W. Rowe. 
A Colorado Game Case. 
COLORADO CGTJfiT OF APPEALS, SEPTEMBER TERM, I903. 
E. W. Hornbeke, Appellant, vs. C. M. White, Appellee. 
Appeal from the District Court of Mesa county. 
Afgfwment for Appellant. 
Statement of the Case. 
December lo, rgoo, White, plaintiff below, had in his 
possession 300 deer hides, which he had bought in the 
neighborhood of Meeker, Colorado, in violation of the 
gaine laws. 
These hides he Was transporting to Rawlins, Wyom- 
ing, to sell, when he was overhauled by the defendant, 
Hornbeke, who was then a deputy sheriff, and White and 
the hides were taken back to Meeker, where, by some 
sort of an arrangement with James Lyttle, a deputy game 
warden. White paid $30 and the hides were returned to 
him. True, the plaintiff claims that this transaction was 
wholly between the defendant and himself. Whatever 
the truth may be, it can make no difference in the result. 
Nor does it matter whether the transaction was a corrupt 
deal or a sale under the provisions of the game law. 
On January 28, igoi. White was again found in posses- 
sion of about the same number of hides in Axial Basin, 
when he was again overhauled by Hornbeke, who had 
then been appointed a deputy game warden in place of 
Lyttle, and the hides were taken to Meeker, and there 
placed in the custody of T. H. Johnson, State Game and 
Fish Commissioner. 
There is serious question whether these were the same 
hides taken from plaintiff on December 10 previous, but 
that is altogether immaterial, as he had no right of pos- 
session in either event when the seizure of January 28 
was made. 
On February 2, 1901, White filed his original complaint 
for replevin in the Rio Blanco County Court, and the 
hides were taken by the sheriff. 
The case found its way into the Mesa County District 
Court, where it was tried before a jury, resulting in a 
verdict for plaintiff for some $400. 
Atgfument* 
I. The Principles Underlying Game Laws. 
This, we believe, is the first case under the game laws 
which has found it.s way into an appellate court of this 
State, and we deem it important to get before the court 
what we understand to-be the true foundation and cor- 
rect application of laws intended for the preservation of 
game. 
Many cases have beeji heard in the courts below, on 
the criminal side, and the defendants acquitted on 
grounds as erroneous as those on which the plaintiff 
'here succeeded, but, being criminal cases, the State was 
without remedy. 
With the possible exception of the mountain lion, llie 
coyote and the wolf, the most persistent and heartless 
enemies of the game, and at the same time the most diffi- 
cult to detect and pnpjsh, pre the meat and hide hunters 
And. buyers. \ ' , 
If, With the law dedarlttg the limit m possession for 
one person to be two horned defif (of atiy patt thefiof), 
and that in the open season only, a man dan success- 
fully get away with 300 hides of all seJces And ages, in 
the close season, then game laws are ineffectual, and the 
game depaftment had as well be abolished. 
The impot^tanee of this dase is, therefofe, apparent, 
and it i§ how for the first time up to this douft to detfir- 
rhjue and declate the . law in Colorado, and put an 
effedtual qtfigtus oh this lawless business, and thereby 
aid in . pUttiHg- a gtop to ganie law violations, and in 
protecting the game of the State from the annihilation 
soon to oScur if the kw is not rriore figotously enfofced. 
A popular eri'or prevails that possession and owner- 
ship of game, once adquifed In pntsuance of law, is of 
that fee simple and indestructible cliidllty that attaches to 
the possession and o\ynership of pfoperty genefally, in- 
stead of a qualified right depending wholly on the pro- 
visions of the laws relating to game, 
It has been dififlcult fol- inferior doufts to get fid of this 
idea, which mu,st be done in otdet to properly adminis- 
ter game laws. 
It has also been difficult for some Courts to Compre- 
hend that cases involving game law violations are rtot 
solely between the individuals named in the suit, but also 
between the State and the violators, and that the officer 
or party representing _ the State is wholly without 
authority to act except in the manner and to the extent 
provided by law, ana has tto power ta waive any provi- 
sion of the tazVj Condoni any offense or Create any estop- 
pet against the State, 
This is especially So in a civil case, like the one at bar, 
which the court below seems to have treated as an 
equitable action between the parties, in which the de- 
fendant officer might estop himself and the State by his 
failure to Comply with the requirements of the law, and 
thereby deprive the State of its property. 
Geer vs. Conn., l6t U._ S., 519, is the leading game 
Case in this country, and in it the principles involved in 
the game law, and their origin, are so fully stated that 
we trust the Court will rtot olily read our quotations there- 
from, but read the whole CaSe. 
The questions involved in the case at bar arise under 
the game laws of iSgg, chapter 98, the amendments of 
1903 not affecting them. 
Section 16, division A, is as follows : 
"All game and fish now or hereafter within this State 
not held by private ownership, legally acquired, and 
which for the purposes of this act .shall Include all the 
quadrupeds, birds and fish mentioned in this act, ^ are 
hereby declared to be property of the State, and no right, 
title, interest or property therein can be acquired or 
transferred, or possession thereof had or maintained ex- 
cept as herein expressly provided." (Page 1 88.) 
In Illinois a similar statute exists and in Meiil vs. Peo- 
ple, 64 N. E., ito6 (III.), it is said: 
"Prior to this enactment the State had general owner- 
ship of animals fercB nattirce — not as a proprietor, but in 
its sovereign capacity, as the representative of the people, 
and for the benefit of all the people in common. Sec. II 
places the title and ownership in the State as a proprie- 
tor and the individual may no longer acquire ownership 
by capturing, killing or reclaiming such animals, except 
in so far as permitted so to do bv other provisions of the 
«ct," 
This is perhaps slightly different from the view taken 
in the Geer case, aS to the status of game in the absence 
of Statutes like those of Colorado, Illinois and many other 
States, vesting ownership in the State, as the Geer case 
apparently makes no distinction between the two kinds 
of ownership. 
This difference, if any, however, is of no practical im- 
portance. The status of the game when owned by the 
State in its "sovereign"" capacity, was as the common 
property of the people, with the right in the people to 
capture or kill at pleasure, except as prohibited by law. 
Its status under the statutes of Colorado and other 
States vesting the ownership in the State as a "proprie- 
tor" takes away from the people the right to capture and 
kill unless prohibited, leaving under these statutes no 
right except as permitted. In other words, the game 
without such statutes was like the water of the streams, 
open to the first appropriator, except as prohibited by 
law, while under these statutes, like the land and timber 
of the State, it can be appropriated to use or held in 
possession only as permitted by law. 
Both cases, however, as well as all other game law 
cases, affirm the power of the State to restrict, regardless 
of the character of its ownership. All agree also that 
such laws are within the purview and proper exercise 
of the police power. 
In Stevens vs. Maryland, 43 A., 930, it is said : 
"That the total prohibition of having game, from what- 
ever source derived, in possession during the closed 
season, is a reasonable, if not necessary, means of pro- 
tecting the domestic game of the State making the pro- 
hibition, has been held in a number of cases," — citing 
them. 
In the Geer Case the game laws of Connecticut per- 
mitted the killing of birds during certain months, but 
prohibited their transportation out of the State, or pos- 
session with intent to so transport. 
Geer was convicted of possession with intent, and his 
conviction, having been affirmed in the Supreme Court of 
the State was taken to the United States Supreme Court, 
where he denied generally the validity of the act, and 
also alleged it to be in violation of interstate commerce 
clause of the Federal Constitution. 
The Supreme Court says that the question presented 
is — 
"Had the State of Connecticut the power to regulate 
the killing of game within her borders so as to confine 
its use to the limits of the State and forbid its transmis- 
sion outside of the State?" 
It is then stated that, 
"From the earliest traditions the right ta reduce ani- 
mals fera naturce to possession, has been subject to the 
control of the law-making power." 
Th^ court then points out the difference between the 
qualified ownership in game acquired under restrictive 
game laws and that unqualified right in other property 
3C(JiiiF€d HWdcr general and unrestrigtlY? la^fsj a\l4 tfet 
the right to kill the game in Connecticut was only given 
on Condition that it be not transported beyond iJie State 
limits. 
The court also cites from Magner vs. People, 97 111., 
32O, the following: 
"So far as we are aware, it has never been judicially 
denied that the Government, under its police powers, may 
make regulations for the preservation of game and fish, 
restricting their taking and molestation to certain seasons 
of the year, although laws to this effect, it is believed, 
have been in force m many of the older States since the 
organization of the Federal Government. * * * The 
ownership being in the people of the State, the repository 
of the sovereign authority, and no individual having any 
property rights to be affected, it necessarily results that 
the Legislature, as the representative of the people of 
the State, may withhold or grant to individuals the right 
to hunt and kill game or qualify or restrict, as, in the 
opinions of its members, will best subserve the public 
welfare." 
The interstate commerce question was disposed of hy 
declaring that, although the exercise of the police power 
In prohibiting the export of game might remotely and 
indirectly affect interstate commerce, it was not thereby 
rendered invalid. 
Referring, then, to some cases in Kansas and Idaho' 
holding otherwise on the question of export, the court 
.says: _ _ . 
"The reasoriing which controlled the decision of these 
cases is, we think, inconclusive, from the fact that it did 
not consider the fundamental distinction between the 
qualitied ozvnership in game and the perfect nature of 
ownership in other property, and thus overlooked the 
authority of the State over property in game killed within 
its confines, and the consequent power of the State to 
follow such property into whatever hands it might pass 
with the conditions and restrictions deemed necessary 
for the public interest," 
The foregoing discussion is for the purpose of showing 
the principles involved and getting started right, as the 
questions decided there, although not precisely like those 
in the ca.se at bar, rest on the same principles. 
The sum of the matter, then, is that one suing for the 
possession of game must point out the statute giving him 
the right of possession, and also show that he is strictly 
within its terms. Failing in either, he cannot succeed. 
And this rule applies to his pleading as well as his 
evidence. 
II. The Application of these Principles. 
The court below erred in overruling the_ objection to 
the introduction of any evidence, the motion to direct 
a verdict for defendant, in giving instruction IV., in 
refusing each instruction asked, and the verdict should 
have been for defendant. Other errors appear in the 
record, but the foregoing, or any one of them, raise the 
only points wd deem it necessary to discuss. 
White claims that the deer hides in question were the 
Same ones which he had in December, and as, pre- 
sumably, the jury must have so found, we will discuss 
it on that assumption. 
The game law, section 7, division B, then provided as 
follows : 
Sub. ]. The open season for deer having hofHS ♦ * * shall 
begin Aug. 15 and end Nov. 5 next ensuing. (Page 192.) 
Sub. 7. The right given by this section to take game or fish is 
limited to food purposes, * * * and no person shall take, kill 
or have in possession in any one season more than * * * one 
deer, and one antelope, or, instead of one deer and one antelope, 
he may have either two deer or two antelope. (Id.) 
.Sub." S. ' No game or fish shall be held in possession by any 
person for more than five days after the close of the season for 
killing the same, except as in this act otherwise provided. (Page 
193.) 
Sec. 16, Division D. Any person having the lawful possession 
of game or fish killed within this State, may, upon proof of such 
fact, have issued to him, by the commissioner, a storage permit 
which shall authorize storage, possession and use of the same not 
longer than ninety days next ensuing the opan season therefor. 
(Page 209.) ' , 
Sec. 18, Division A * * * whenever the possession, « * * 
transportation, storage, sale, * * * cf game or fish is prohibited 
or restricted, the prohibition and restriction shall, wheve not 
specifically otherwise provided, extend to and include ever/ part 
of such game or fish, and a violation as to each animal or part 
thereof shall be a separate offense. * * * (Page 189.) 
By section 19, division A, the possession of game or 
fish, unaccompanied b}^ a proper and valid license, cer- 
tificate, permit or invoice, is prima facie evidence of un- 
lawful taking and possession. (Page i8g.) 
So that White not only had 298 more hides than the 
law permitted, some of which were does and fawns, 
which are contraband at all times, but, having no storage 
permit after the season closed, his possession on De- 
cember 10 was doubly unlawful. 
More than that, sections 11 and 13 of division D pro- 
vide as follows : 
Sec. 11. When any person lawfully in possession of game or fish, 
shall desire to transport the same within this Stale, the transporta- 
tion of which is not herein otherwise provided f"r, or out of this 
State, the commissioner may, upon being satisfied that the pos- 
session and transportation is not in violation of the spir t of this 
act, grant a permit therefor, and thereafter during the period of 
ten' days after its date, such transportation shall be lawful between 
the points therein named. Such permit shall be substantially in 
the following form: 
STATE OF COLORADO. 
DEPARTMENT OF GAME AND FISH. 
TRANSPORTATION PERMIT. 
No. .. Denver, 189.. 
This certif-es that Mr. is entitled to trans- 
port from Colorado, to 
the following game and fish, lo wit, 
This authorizes pos- 
session aiid transportation between the points named herein only, but 
not sale or storage. Void after ten days from date. 
Commissioner, 
Sec 13. Game or Rsh may be transported out of this State only 
when accompanied bv a permit from the commissioner authorizing 
the same, as provided in Sec. 11 of this division, or when being 
transported from some other State or Territory where taken or 
killed, through this State to some other State or Territory. 
White was, therefore, by his own admission, attempt- 
ing to export them without an exportation permit. Bear- 
ing in mind that, under the statutory ownership of the 
.State, we do not need to look for a prohibition of an 
act to render it unlawful, but that the defendnnt must 
show that he is acting under a permission found in the 
law, he had no, right 1^9 expo^-j, pr attempt to export, these 
hides without such pertint, as ^wtion 1, division G, ptq-- 
