CONSTITUTIONAL LAW, § 661 b, c. GAMBLING DEVICE. As nuisance, see As subject of replevin, see Seizure and destruction of, under police power, see CONSTITUTIONAL LAW, § 701 b. See also WORDS AND PHRASES, 1496. NUISANCES, § 37 c. REPLEVIN, § 5. coscoscoscoscoscos 3. Generally. 4. 5. 6. as interference with interstate commerce. establishing closed season. prohibiting sale. 7. Federal regulation. 8. Applicability to game raised in captivity, domesticated, or other § 1. Property rights in game. APPEAL AND ERROR, § 478 g. FISHERIES. INJUNCTION, § 70 s. INJUNCTION, 200. NUISANCES, § 125 a. WATERS, § 46 a. WATERS, § 136 g. of private property. Graves v. Dunlap, L.R.A.1916C, 338, 87 Wash. 648, 152 Pac. 532. e. The general ownership of wild game Property rights in wild animals, see ANI- or fowl is in the state for the use of the MALS, § 5. In fish, see FISHERIES, § 2. public; but when the game or fowl are upon the private grounds of an individual, a Right to take game, see also FISHERIES, § qualified or special right of property of the 17 a. See also post, § 6. a. Wild game within a state belongs to the people in their collective sovereign capacity, so that it is not subject to private ownership, except in so far as the people may elect to make it so. Haggerty v. St. Louis Ice Mfg. & Storage Co. 40 L.R.A. 151, 143 Mo. 238, 44 S. W. 1114. b. He who takes or kills game had no previous right to property in it, and when he acquires such right by reducing it to possession he does so subject to such conditions and limitations as the legislature has seen fit to impose. People v. Clair, L.R.A.1917F, 766, 221 N. Y. 108, 116 N. E. 868. c. Wild game is the property of the captor, and not of him on whose land it is taken. State v. Horton, 1 L.R.A. (N.S.) 991, 139 N. C. 588, 51 S. E. 945. d. The title to game is in the state in its sovereign capacity in trust for the use and benefit of the people of the state, but animals ferae naturae when reclaimed by the art and power of man, are the subjects individual attaches to it, with the exclusive right to hunt, kill or capture while there. Schulte v. Warren, 13 L.R.A. (N.S.) 745, 218 Ill. 108, 75 N. E. 783. close time in violation of statute interferes f. Liberating an animal captured during with no legal right or title of the person illegally holding it captive, and gives him no right of action. James v. Wood, 8 L.R.A. 448, 82 Me. 173, 19 Atl. 160. (Annotated) § 2. Grant of hunting privilege. Jurisdiction of equity to prevent wrongful interference with hunting privilege, see EQUITY, § 56 j. Power of state to grant exclusive right to hunt, see FISHERIES, § 8 b. a. One who has granted the exclusive right to shoot wild fowl upon the waters upon his land is not liable in damages for clearing and draining the land, if he does so in good faith for the purpose of improving it, but may be so if he acts in bad faith in order to injure the grantee. Isherwood v. Salene, 40 L.R.A. (N.S.) 299, 61 Or. 572, 123 Pac. 49. (Annotated) 10 a. Sufficiency of title of statute, see STATUTES, § 120. Special legislation by, see STATUTES, § 192. a. The right and power to protect wild game for the common use and benefit is one of the recognized prerogatives of sovereignty, coming from the common law, and preserved and provided for by statutes of every state of the Union. People v. Truckee Lumber Co. 39 L.R.A. 581, 116 Cal. 397, 48 Pac. 374. b. The ownership of wild animals is in the state in its sovereign capacity for the benefit of all the people and the state may protect them and prescribe how and where they may be taken or killed. Barrett v. State, L.R.A.1918C, 400, 220 N. Y. 423, 116 N. E. 99. c. The state through its legislature has the right to control for the common good the killing, taking and use of game, so long as the rights guaranteed either by the state or Federal Constitution are not encroached upon. Graves v. Dunlap, L.R.A. 1916C, 338, 87 Wash. 648, 152 Pac. 532. d. The power of the state to grant the right to take game embodies the power Smith V. State, 51 impose conditions. L.R.A. 404, 155 Ind. 611, 58 N. E. 1044. to e. The authority to enact limitations upon the right to take animals ferae naturae flows from the power to prohibit such taking. State v. Dow, 53 L.R.A. 314, 70 N. H. 286, 47 Atl. 734. f. The state may protect wild beavers although they are destructive to private property. Barrett v. State, L.R.A.1918C, 400, 220 N. Y. 423, 116 N. E. 99. (Annotated) g. That construction of a game Conservation Law should be adopted which appears most reasonable and best suited to People v. Clair, accomplish its purpose. L.R.A.1917F, 766, 221 N. Y. 108, 116 N. E. 868. § 4. State —as interference with interstate commerce. power to prohibit importation of game birds, see COMMERCE, § 62 a. a. The game laws of a state can give no authority to take carcasses of animals or parts thereof, while in the course of interstate transportation, away from a common carrier, on the ground that the animals have been killed in violation of such laws. Ben nett V. American Exp. Co. 13 L.R.A. 33, 83 Me. 236, 22 Atl. 159. § 5.-establishing closed season. Liberation of animal taken during closed time, see ante, § 1 f. Applicability in case of game animals con- Computation of duration of "open season," a. Hunting and killing wild game being a boon or privilege granted, either expressly or impliedly, by the sovereign authority, not a right inhering in the individual, the denial of the privilege, at stated seasons, does not constitute any interference with individual rights. Haggerty v. St. Louis Ice Mfg. & Storage Co. 40 L.R.A. 151, 143 Mo. 238, 44 S. W. 1114. § 6. —prohibiting sale. a. Where the legislature has reserved title in the state to the wild game within its limits, and permitted the killing of it in limited quantities under certain conditions, it may, without infringing the property rights of those who have rightfully taken it, absolutely prohibit any sale of it. Re Blardone, 21 L.R.A. (N.S.) 607, 55 Tex. Crim. Rep. 189, 115 S. W. 838. b. The statute forbidding those in rightful possession of game taken within the state from selling it is not unreasonable, nor is it void as having no real or substantial relation to the object for which it was passed, to wit, the protection of game within the state; nor is it invalid as class legislation. Re Blardone, 21 L.R.A. (N.S.) 607, 55 Tex. Crim. 189, 115 S. W. 838. (Annotated) § 7. Federal regulation. a. Since wild game belongs to the state in which it is found so far as it is capable of ownership, power to pass laws for its protection was not conferred upon Congress by the provision of the Federal Constitution that Congress shall have power to make rules and regulations concerning the territory and other property belonging to the II. Game laws. United States. State v. Sawyer, L.R.A. | Dunlap, L.R.A.1916C, 338, 87 Wash. 648, 1915F, 1031, 113 Me. 458, 94 Atl. 886. 152 Pac. 532. (Annotated) § 9. Violation. § 8. Applicability to game raised in Former conviction or acquittal as bar to captivity, domesticated, or prosecution for, see CRIMINAL LAW, § otherwise confined. 70 b. a. A provision of a statute for the protection of game, prescribing an open season for deer, and providing that deer shall not be taken at any other time, refers to domesticated as well as wild deer. Dieterich v. Fargo, 22 L.R.A. (N.S.) 696, 194 N. Y. 359, 87 N. E. 518. b. The legislature may constitutionally forbid the killing of domesticated deer dur ing the closed season, in order to prevent an evasion of the law for the protection of wild deer. Dieterich v. Fargo, 22 L.R.A. (N.S.) 696, 194 N. Y. 359, 87 N. E. 518. c. A provision of a game law limiting the number of deer which can be killed by one person, and requiring venison transported during the open season to be accompanied by the owner, does not apply to that raised in captivity. Dieterich v. Fargo, 22 L.R.A. (N.S.) 696, 194 N. Y. 359, 87 N. E. 518. d. Deer roaming wild over a private park containing between 700 and 800 acres covered mostly by woods and surrounded on all sides by the sea except at a narrow strip connecting with the main land, across which artificial structures are placed to prevent escape, cannot be said to be reclaimed or held in close confinement so as to except them from the operation of the game laws and to allow the owner of such park to hunt and kill them in close time. State v. Parker, 35 L.R.A. 279, 89 Me. 81, 35 Atl. 1021. e. A statute making it unlawful at a specified season of the year to hunt, pursue, take, kill, injure, or destroy any deer does not prevent the establishment of a herd of deer taken at other seasons of the year for the purpose of confining and caring for them as though domesticated. Graves v. Dunlap, L.R.A.1916C, 338, 87 Wash. 648, 152 (Annotated) f. The owner of a herd of domesticated deer may, during the closed season, kill such as shall have been wounded or crippled, or such as are necessary in the care and management of the herd. Graves v. Dunlap, L.R.A.1916C, 338, 87 Wash. 648, 152 Pac. Pac. 532. 532. g. The rights of a meat dealer are not infringed by a statute forbidding the having in possession the carcass of any deer unless the same has thereon the natural evidence of its sex, although the animals in his possession are raised in captivity. State v. Weber, 10 L.R.A. (N.S.) 1155, 205 Mo. 36, 102 S. W. 955. (Annotated) h. One maintaining a flock of domesticat ed game birds cannot be given power by the court to dispose of them in such manner as he sees fit, since that would permit them to be killed and disposed of during the closed season, and thereby interfere with the enforcement of the game laws. Graves v. Right to jury trial in prosecution for a. Following a moose in a forest until it becomes snowbound, and then capturing it during close time, is a violation of Me. Rev. killing, or destroying a moose during that Stat. chap. 30, § 9, prohibiting hunting, time. James v. Wood, 8 L.R.A. 448, 82 Me. 173, 19 Atl. 160. season b. Possession of quail acquired during the open is nevertheless unlawful if under Burns's (Ind.) Rev. Stat. 1894, § continued after the closed season begins, 2209, (Horner's [Ind.] Rev. Stat. § 2106), making it unlawful to have possession of quail between January 1 and November 10 of any year. Smith v. State, 51 L.R.A. 404, 155 Ind. 611, 58 N. E. 1044. c. Woodcock, ruffled grouse, or quail need not have been killed for the purpose of conveying them out of the state in order to make it an offense, under Conn. Gen. Stat. § 2546, to have such birds in possession with of the state. State v. Geer, 13 L.R.A. 804, intent to procure their transportation out 61 Conn. 144, 22 Atl. 1012, aff'd in 161 U. S. 519, 40 L. ed. 793, 16 Sup. Ct. Rep. 600. ceives d. The serving by a hotel keeper of game birds which had been rightfully given to him, as part of a meal for which he repay, is within a statute providing that such birds shall not be sold or offered for sale for food purposes. People v. Clair, L.R.A.1917F, 766, 221 N. Y. 108, 116 N. (Annotated) E. 868. e. Possession during the close season, of game killed in another state, is not an of fense under Md. Acts 1894, chap. 404, mak. ing it unlawful to "shoot or in any manner catch, kill or to have in possession" during the prohibited time any of the kinds of Dickhaut V. game specified. State, 36 L.R.A. 765, 85 Md. 451, 37 Atl. 21. f. That an imported game bird is not of the same variety as the local birds of that species is no defense to a prosecution for having it in possession, where the stat ute is made applicable to all birds of that family. People ex rel. Hill v. Hesterberg, 3 L.R.A. (N.S.) 163, 184 N. Y. 126, 76 Ñ. E. 1032. g. Game purchased on an Indian reservation by an Indian from Indians who killed it on the reservation is not exempt from the game laws of the state prohibiting shipment of game out of the state, after it is transported beyond the reservation for the purpose of shipment to another state. Selkirk v. Stevens, 40 L.R.A. 759, 72 Minn. 335, 75 N. W. 386. |