*1 Herrin Sutherland. v. convincing court, to tbe and on the cold record we will presume matter, but trial leave it to the determine advantage seeing hearing court with superior its on witnesses the stand. judgment is reversed and cause remanded Valley grant
district court of county, with direction to the de- fendant a new trial.
Reversed and remanded. Callaway Chief Mr. Justice and Associate Justices Holloway, Galen and Stark concur.
Rehearing denied December 1925. Appellant. SUTHERLAND,
HERRIN, Respondent, (No. 5,806.) (Submitted October 1925. Decided November Pac.
[241 Navigable Non-navigable Rights Fish and Game — Streams — Trespаss Hunters Land Owners Fishermen, amd Defined — —Common Law. Law —Rule Common Decision —Definition. England law 1. The common declared section Revised Codes of to be the rule decision in Montana so far as it repugnant is not laws, to the federal or state Constitution or the state body jurisprudence is that applied modified country up courts of this to the time it was made a rule of deci- sion the first Montana legislature. territorial
Pish and Game —What Right are Public to Pish and Hunt Waters — Wild Powl Defined. 2. The state the owner of all land below the water navigable stream, -and therefore the waters above the bed or channel of such a stream at publie low-water mark are waters in which the 1. What the common law includes, 1913E, see notes in Arm. Cas. 1918A, 1222; Ann. Cas. 968. rights Fishery navigable 2. waters, in 21 see note Ann. Cas. also, See, 11 R. C. L. 777. 1029. Hunting rights Ann. waters, see notes in 15 Cas. 1915C, Cas. Ann. ’25 T. law, except hy general fish, as restrained people have a flying there- wild fowl the surface shoot adjacent long they trespass upon the land of an do not over so owner. Trespass.
Same—What Constitutes *2 of an land hunting fishing goes 3. One who while ordinary stream water-mark on а owner of land above guilty' trespass. is of a Non-navigable Trespass. Fishing in Stream —When Same— privately non-navigable which is Fishing in a stream the bed of 4. upon the banks permission owner, going or owned without trespass, willows, constitutes destroying grasses thereof and thus or fish right take the having the to owner of the land exclusive land. in his the waters of the stream within Trespass. Shotgun Firing Over Land of Another — Same— hunting and another while the land of 5. Where one stands third, with premises interferes shotgun of a fires the over the -by the peaceful enjoyment quiet, thereof undisturbed trespasser. a technical latter and is at least Hunting Trespass. of Another —When on Inclosed Land Same— person thereon without 6. land is inclosed who hunts Where trespasser, and where possession one to its is a consent of entitled warning persons against hunting thereon, he who posted land is subject disregard warning prose- so in such criminal does 11482, under section Revised Codes of 1921. cution Right to Fish in Owner and Hunt of Land. Same—Exclusive right by or The exclusive on land owned 7. a private land, in owner of the in individual is or those who by by permission, guests, grant. his his so do by Domain Surrounded Feneed Land of Private Owner— Same—Public Duty Public Desiring Purpose Hunting Person to Cross Land for Domain. by privately public domain is surrounded owned Where 8. impossible fenced, rendering for a it hunter to reach which is land, duty crossing the inclosed it his to ask the without way pursued by land, him designate the to be across the owner so, crossing failing breaking but instead the fence and in to do trespass. land, he commits Privately Trespass. Owned Fishing Pond — Same— upon private pond land to fish from a One who enters thereon 9. flowing trespasser, therefrom is in a sincе the exclusively belongs owner. to the therein fish Subject Except to Private Dominion Game not as Provided Same —Wild by Law. belongs people of the game to the state their The wild 10. subject capacity private is not dominion to sovereign prescribe. fit legislature has seen than the greater extent another, the lands of see note in Right fish or hunt on 13 7. Rep. 416. St. Am. ponds, see Fishery rights in owners of streams note in 3 9. 860. Cas. Arm. fishery rights, see note 60 L. with R. A. Trespass interference L. also, 11 R. C. 1030. See, 523. by trespasser, see 23 game note taken title to fish and 10. On L. R. 1402. A. Same—Owner Ownership of Land has in Wild Qualified Fowl Protected and Fed Him Thereon. 6605, 1921, Under section Revised Codes of an owner of qualified land has a ownership protected, fowl wild which were fed and claimed him thereon, and he to to alone has the hunt land; them while on trespasser henee a has no away. kill or take them Law, J., Common 2, p. 177, C. sec. n. 18. J., Fish, 26 8, p. 54, 56; C. sec. 9, p. 598, 63, 66; n. sec. see. n. 17, p. 602, 19; see. 20, p. 605, 50; 52, p. 631, n. see. n. n. 57. Game, J., 2, p. 11, 12, 13; 27 C. 4, p. 943, 19; see. n. see. n. 5, p. 943, p. see. 39, 42, 43; 17, p. 953, n. see. n. see. n. 55 New. Navigable Trespass, Cyc., Waters, p. 332, 23; p. 356, n. n. 30 New. Cyc., p. 14; p. 996, 17; p. 997, 29; p. 1028, n. n. n. 21; p. 1051, n. n. 45. Aрpeal District, County; J. Court, Lewis and Clark A. from Horsky, Judge. Judg- against H. J. Herrin William Sutherland.
Action appeals. ment for and defendant Affirmed.
Cause submitted on briefs of counsel. Q. Appellant.
Mr. for Frary, S. 12 Citing: L., p. 688, 6; Attorney E. C. sec. Butler v. General, 79, (n. s.) 8 L. E. 1047, 195 Mass. A. 80 688; N. E. Common- 5 Chappin, 199, wealth. v. Pick. 16 (Mass.) Am. 386; Dec. Stangviek, 100 Whittaker v. Minn. 117 386, Eep. Am. 703, St. 528, (n. 10 s.) 921, 10 Ann. Cas. L. E. A. 111 295; N. W. y. Sterling Jackson, 488, 69 13 Eep. Mich. Am. St. 405, 37 y. 845; Indiana, N. W. Ohio Oil Co. 177 190, U. S. 44 L. Ed. Eep. Sup. [see, also, 20 585 Ct. 729, Eose’s U. S. Notes]; y. L., p. 1017, 11 E. C. at and cases 11; note Sollers Sollers, 148, 94, 20 E. 77 Md. L. A. 26 188; Atl. Amory v. Flyn, (N. Y.) 102, 6 10 Johns. Am. Dec. 316. Toomey, Eespondent. E. for G.
Mr. Citing: Willow River 86, Club v. 100 Wade, 42L. E. Wis. A. y. 273; 76 N. 305, Tresise, W. Hartman 36 146, Colo. 4 L. E. A. (n. s.) 872, 84 685; Pac. 1 Tiffany ed., on Eeal Property, 2d ’25T.
590 Spring 27; Mass. Go., Ill Aqueduct etc. 309; Fay v. Salem sec. Cortelyou 1027; Supp. 159 N. Y. 719, App. 173 Div. Conklin, v. 439; Lay 357, Dec. Y.) 3 Am. (N. 2 Van Johns. Brundt, v. v. Mc- Fishing Co. 72; Eagle Day (Conn.), King, v. 5 Cliff Stephens, Idaho, 13 1, 766; v. Gowan, 70 137 Pae. Sherwood Or. 23 54; Holman, v. 598, 345; 90 26 J. note Pac. C. Griffith 239; Pac. A. Rep. 821, 54 L. R. 347, 83 Am. Wash. St. 1070; Mallory, v. Hull, Utah, 114, State Knudsen Pac. R. 83 S. W. 67 L. A. 3 Ann. Cas. Ark. 1098; 59 N. W. State v. 58 Minn. Rodman, 955; State v. Hawaii, 665, Murphy Hitchcock, 59 N. H. Roberts, (Tex. v. Thomas 976; Fin & Feather Club 1917B, Ann. Cas. 150'. App.), 138 S. W. Civ. Delivering Justice the Case
Statement
Opinion. ' action, first eight in the complaint causes of contains fee, alleges the owner himself to be large in Lewis tract possession actual and in the both sides county, abutting for several miles on and Clark It River, but stream. a nontidal Missouri September, 1924, the de- alleged the 18th of that about thеn hunting fishing expedition, being engaged on fendant plain- between the channel of the stream boat down rowed intermittently “abutting thereof, on each side tiff’s lands caught channel, at and killed fish in said shot- cast flight thereover, in violation floating thereon or ducks wild possession and control of the channel plaintiff’s damage stream, $10”; the sum of said day and while on said ex- *4 rowed boat to the west bank of the defendant pedition ordinary moored the same above the and there stream fishing in of the stream and thereafter mark while low-water tramped along bank on the land “walked and said river ordinary mark and and above the low-water plaintiff, of v. high-water mark, water ordinary and between said above the tramped grasses marks, destroyed planted upon and native and to his land,” plaintiff’s said in violation of and damage. ownership alleges plaintiff
In of the second cause possession ranch,” actual of his “home and what terms raising hay grain ranch is and which devoted to the of and breeding raising sheep and and There flows cattle. through unnavigable this ranch a small known as Fall stream Creek, deep, about fifteen feet feet in width and about two by game fish; which stream inhabited on or about the August, 1924, at its 3d defendant entered mouth, empties Eiver, where it into the Missouri “and waded up fishing and rod, down the same with line and violation plaintiff’s undisturbed, peaceful, and exclusive enjoyment purposes, said stream for and other plaintiff’s damage $10”; wading the sum of and when not in the channel of up the stream the defendant walked tramping down the banks thereof, destroying hay grow- on and ing breaking banks, cutting said growing willows along banks, рlaintiff’s damage.
The third cause of action also relates to the ranch, home being alleged that on the 18th of September, 1924, the defend- engaged ant, ducks and other water fowl other migratory game birds, standing and while on the another, repeatedly lands of discharged a shotgun Winchester flight plaintiff’s water fowl at over premises, dwelling- said and over house his cattle, “thereby preventing plaintiff from quiet, undisturbed, peaceful enjoyment dwelling- of his house, property, ranch and damage in the sum $10.”
In plaintiff the fourth alleges ownership action the possession and actual of a ranch known as the Sentinel Rock place, growing devoted grazing to the hay grain livestock; fully “that has inclosed and surrounded tract post said with a and barbed-wire fence about five *5 T. ’25 Herrin Mont.
[74 587.] 18th high”; September on of said feet that or about chicken, hunting pursuit prairie of defendant, while and birds, grouse upland game consent and other and without blue authority fence and entered from broke the said plaintiff, tramped upon and and across and the said tract of land over shooting destroy- trаmping same, and down and said 'birds plain- ing standing harvest, grain awaiting on said tract leaving of land damage; upon said inclosed tract tiff’s that hunted an uninclosed and tramped the defendant and over plaintiff’s belonging plaintiff, open tract of land then grasses destroyed tramped and natural possession, and down thereon, livestock, plaintiff’s fit of growing grazing damage. fifth cause likewise the Sentinel Rock relates to plaintiff alleges is
ranch, inclosed on three sides which the post high by a fence five feet and he has barbed and wire posted upon boundary upon said fence and said land at conspicuous signs places, printed painted and thereof, and warnings English language, reading follows, in the “No hunting premises,” trespassing on or, these “No allowed al- notwithstanding premises”; that on these said lowed inelosure warnings posted, defendant, while and so and fence birds, pursuit upland game Sep- in the and on the 18th of and 1924, broke, and down panel cut tore a fence tember, and upon tramped- inclosed in and the said land and entered standing grain grasses plaintiff’s destrоyed thereon, damage. alleged cause of action it is
In the sixth that there lying open public domain on the east tract of Sentinel hilly ranch, grazing which consists and mountainous Rock by upland game frequented inhabited country, birds and way reaching except the same across said ranch, there is September, 1924, 19th on the the defendant broke surrounding and entered the Sentinel the fence Rock purpose and over for the walked same ranch public domain entering upon doing the said and in so tramped growing destroyed upon hay ranch and damage. same,
In the seventh of action it is asserted complaint and at all mentioned owner times in the was the “entirely possession the actual tract of land surround- oí *6 ing flowing pond a small and a therein and a small stream flowing pond small stream pond; from said that said and the serving frequented by the same are inhabited native game fish, protected mountain and other trout fed and plaintiff”; day August, on third that the of and while engaged defendant, in fishing, the with rod, line and bait angled pond caught away in said and streams and and cаrried great and converted his number fish, plain- to own use a Of damage. tiff’s eighth plaintiff
In the cause of alleges during action the that year game the migratory birds, to-wit, certain and wild ducks, canvas-back and eggs irrigating teal laid their plaintiff’s other ditches and watercourses on home ranch and plaintiff there hatched and raised their young; protected that game killing predatory the birds animals which are accus- same, tomed the grain to attack throwing out for food, frequented stayed the ducks around the water- plaintiff’s during year courses on lands the 1924; that September, the 18th of about defendant upon the entered by shooting shotgun land and with a suitable for the ducks, frightened flight of them into a they and while flight were shot and killed a number them which he away carried and converted seized, use, plain- own damage. tiff’s n general After defendant’s demurrer to the several causes was overruled he declined action to answer and his default Upon suggestion was entered. plaintiff counsel for damages only nominal that be demanded, would the court ren- judgment dered favor of damаges in eight $1 causes sum of collectively, with 74Moat.—38 ’25T. judgment has the defendant
costs action. From this appealed. opinion delivered the
MR. CHIEF JUSTICE CALLAWAY of the court. that it is conceded At the outset First of action. plain navigable stream; also that
the Missouri River is a 'beyond Never tiff does low-water mark. not own complete theless he exercises dominion he claims that as stream, an incident mark on sides the low-water both that he the use of the channel control except navigation. purposes right, This all stream for England; law says, common is based law repugnant “so far is not or inconsistent with States or Constitution or laws Constitution of the United Codes, is the rule of state, of this or of decision all [1] courts of this state.” (Sec. Revised Codes body England jurisprudence means law of The common *7 country up by the of this applied and modified courts as commonwealth; in of this the time became a rule decision legislature. (Aetna began with first territorial our time Liability Miller, 54 v. Mont. L. R. 377, & Co. A. Accident 1918C, 954, 760; Rankin, v. 63 170 Pac. Products Co. Mont. Gas 993; Young, 372, 294, 24 207 Pac. State ex A. R. rel. v. L. Ford 947.) 54 170 401, Pac. England early in the land
At an title to beneath the date in king, conceived be the tidal rivers was wherеas sea and under where the inland waters tide did not title to the land proprietors. private riparian Origi- was and flow the ebb fish tidal rivers nally right to in the sea and was held to the prerogative king of the lord the exclusive of the soil Fishery Rep. 149; the (Royal Banne, Hale, of Davies De Juris process legal Maris, 18), of evolution this came but regarded general public; held in trust and the for the to be equal right all an fish. that in tidal waters have now is rule fishery in the streams the exclusive nontidal In 595 74 Mont.] Review, (See Law 27 Harvard riparian proprietors soil. Wаters, 368; 2 note Willow River 750; on Farnham sec. 305.) between Wade, v. 42 L. R. The real distinction Club A. two seems to rest streams, nontidal, classes of tidal and ownership In or channel of the stream. the bed streams, subject tides, all salt-water the action king' only not channel the stream but the bed or owned jurisdiction pur had exclusive title over them all poses navigation, not inconsistent with fresh-water special privileges riparian streams the certain owner had (1 king Nuisances, deprive could him. on Wood ed., 452; 3d see. 23 Holman, 347, v. 83 Wash. Am. St. Griffith Rep. 239.) 54 821, R. A. 178, L. 63 Pac.
Broadly cоuntry this speaking, the rule in has been that waters, in all the title to which inis public, belongs (Farnham all people common. Waters, 368a; Legoe Chicago see. 24 Fishing Co., v. Wash. 175, 64 141; Coolidge Pac. 4 Williams, 140; v. Mass. Lincoln Davis, Rep. v. 53 375, Mich. 51 103.) Am. 19 N. W.
The state of Montana is the owner of all land below the water of a navigable (See. stream. 1921; Rev. Codes Port Seattle Oregon, Co., W. R. 255 R. U. S. L. Ed. Sup. Rep. 237; Shiveley Ct. Bowlby, U. 1,S. Sup. 38 L. Ed. Rep. Rogue Ct. Hume v. River Packing Co., Or. 131 Am. St. Rep. 732, 92 Pac. The words “all land” in evidently section 6674 refer to that below the low-water mark, for section provided 6771 it is “exсept grant where under which the land is held intent, land, indicates a different owner when it stream, borders lake takes to edge of the lake or at mark; low-water when it borders *8 upon water, other takes owner to the middle of (And lake or Kelly, stream.” see Gibson v. 15 [2] 417, Pac. 517.) Perforce, then, the waters above the or channel of a stream at low-water mark bed are public right public fish, waters and this the have a ex- ’25T. v. Herein Prop- (Tiffany Real general law. tbe cept restrained upon the river rowing boat 309.) In Ms erty, sec. rights. also He Ms was well within defendant
therein the upon the surface wild ducks right to shoot had the trespass upon the not if he did flying thereover, or adjacent property. plaintiff’s use of the control position that he
“While [3] channel any purposes is untenable, still he may main went for the defendant action, first cause of tain his mark and ordinary low-water plaintiff “above land of said and between mark ordinary high-water above the destroyed native upon and tramped marks,” water upon plaintiff’s going In land. said grasses planted trespasser. was a defendаnt described, in the fashion River Hudson 325; Gould v. (Del.) 5 Harr. Polk, (Bickel v. Co., 6 N. T. R. R. 81 Am. Albright Cortright, 330, N. J. L. court, country “In L. R. A. 45 Atl. observed: Rep. 504, 48
St. habitually tech committed that are multitude of acts are a life walk, fish, pick catch nically trespasses. Persons berries land], another’s gather nuts in alieno solo without strict [on practices they right. tolerate these until Good-natured owners annoying injurious, put stop and then become them.” trespassed defendant 2. The also when he up^ waded [4] down Fall Creek fishing. The channel creek be longed plaintiff (1 Tiffany Property, on Real 302), sеc. fish, did own naturae, and while the ferae right they the exclusive to fish for them had were in the (26 598.). Creek land. of Fall within his C. J. It waters has clear that man no to fish would seem where he uniformly public no to be. So is held has non-navigable body fish water, have (16 privately. Review, 37; is owned Mich. Law bed of which Baylor Decker, 133 Pa. 19 Atl. State v. Theriault, L, Rep. 67 Am. R. A. 70 Vt. St. Atl. *9 Herrin Mont. [74 587.] 1030.) That defendant entered Fall Creek from the importance. (Knudson Missouri of is Hull, course of no Utah, 114, 148 Pac. plaintiff the trespassed
Likewise tramped upon when he destroyed hay the growing upon broke аnd cut the willows the banks of the stream.
3. It must be held that although when the defendant, stand- [5] ing upon the land of another, fired a shotgun over plain tiff’s premises, dwelling cattle, he interfered with “the quiet, peaceful undisturbed, enjoyment” plaintiff, of the thus committed a trespass technical plaintiff at least. The was the owner of the says land. Land, Blackstone, legal in its signification extent, upwards has an indefinite as well down wards:'whoever owns the possesses land all space upwards to an indefinite extent; such is the maxim of the law. (Cooley’s Book II, 445; Blаckstone, 18; vol. Kent’s Com mentaries, 401.) appeals
The court of York, New in Butler v. Frontier Telephone Co., 186 N. Y. Rep. 116 Am. St. 563, 9 Ann. Cas. 11 L. A. (n. s.) 920, R. 79 N. E. had before it ejectment an case wire, unsupported any structure resting upon plaintiff’s strung was over the surface land, ground height twenty thirty at a of from feet across plaintiff’s premises. width speaking entire In operation extent of the quoted of the ancient maxim above ground guide, court said: surface “The is a but not measure, for within full reasonable limitations includes only space part the surface but also the above and the (Co. beneath. 24a; Com., Litt. Blackstone’s Com. Kent’s *401.) ed., ‘Usque upper boundary, 14th ad coelum’ is the may literally, while this taken too no limi not be there is any yet within erected man. tation bounds structure concerned, far as before as the So the case us upward soil owned owner of the to an indefinite extent.” Pollock, Sir Frederick in the tenth edition of his valuable Torts, page 363, it has doubted work on observes been ’25T. v. touching trespass pass whether over land without soil, balloon, object, as one or to a mаterial gun, pass a shot from fired over “Lord it. EUens borough thought trespass it was not in itself a to ‘interfere superincumbent upon close,’ with column of air remedy would actual the case though *10 damage: holding difficulty he in had that a man is trespasser gun a who a fires on his own land so that the shot neighbor’s citing Camp. Pickering fall on his 4 Rudd, v. land” — 16 219-221, R. R. 777.
Fifty years later, says (page 364), Pollock Black- “Lord differently (Kenyon Hart, inclined to think burn 6 & S. v. B. Times, opinion 34 L. M. 11 C87, 733), J. Law and his Continuing regards seems the better.” observes: “As shoot- ing strange object if it would be being we could to shots fired point only blank our land in injury across the event actual being foreign object caused, passage and the of the in the air being soil thus a mere incident above our and a distinct tres- person pass property.” or But he concludes that when one flight projectiles into account the extreme takes fired from artillery may pass thousands of modern feet above the subject difficulty. shortly not without That land, the is it importance considerable by will become one of is indicated airplane rapid approach instrumentality оf the as an the suggested in in commerce, is a valuable note found 32 as Har- However, it Review, Law seems to be the consensus vard holdings country in that courts this space, air ground, is almost as inviolable near the as the soil at least itself. McCarthy, 169 Mass. 61 Am. Harrington Rep. St. (Id.; 278.) knowledge 48 N. It a matter common E. is that range. shotgun subjected is short be a firearm of To reasonably anticipated danger incident to and from flight weapon firing at in of this water fowl over one’s dwelling-house far from and cattle would seem to be inconse- allegatiоns very general are quential, and, in character, cannot is not stated it be said a cause damages at for nominal least.
4. The fourth and fifth causes of action be considered [6, together, they practically same involve state of 7] facts, except the latter the fence which the defendant is alleged warning posted upon signs to have tom down had persons against hunting trespassing premises. on the or
Beyond question, person whenever is inclosed, who hunts person or fishes thereon without consent of en titled possession trespasser. thereof exclusive by or private land owned in dividual the owner land, or those who have a permission, guests, be there his his grant. (27 C. J. Warren, Shulte v. 218 Ill. (n. s.) 745,
L. R. A.
E.N.
The fact that all have
game
to hunt and take such
as is allowed
statute
public
domain
entering upon
warrant
does
one
privately
lands
purpose.
inclosed.
for that
Said Mr. Justice
Champlin
Sterling
Jackson,
It follows that damages the has a owner to recover from trespass. provisions those who And under the of section 11482, Revised of 1921, posts Codes when the owner his land persons warning they may trespass that hunt not or thereon, they trespass hunt or within prohibitions do the of that subject they are section, prosecution. to criminal So much any pertinent provides section is here person of that that ’25 T. v. any where upon premises who land or shall hunt inclosed warning read- sign there or posted conspicuous place sign or ing, or a premises,” “No these allowed on premises,” warning on these reading, trespassing “No allowed misde- guilty of a owner, consent of the shall be without the meanor, etc. alley by the
5. of action be sustained sixth cause [8] gation that defendant broke the fence surrounding defendant upon the Rock ranch. That entered the Sentinel easterly lying upon public domain had to hunt If it be con Rock ranch must be conceded. Sentinel way of had that of the fact that he ceded also reason except going reaching public across way by provided him neces ranch and the law therefore Sieben, 46 Mont. sity down in Herrin v. under the doctrine laid shown that he availed 127 Pac. the defendant has not privilege remedy. If he himself of his were entitled to plaintiff designate the track he should first asked the have land, plaintiff way pursued then if or across designatе way the the track or defendant failed or refused might have made own with restriction selection, plaintiff lawfully upon fur the land of could encroach (Herrin necessary. Sieben, than circumstances rendered ther supra,.) respect with the second cause of Much that said
[9] action is applicable to the seventh. In this cause appears the defendant entered the land pond entirely surrounded a small and a small flowing flowing and a small stream from therein said being pond; frequented and inhabited these native mountain gаme fish, protected by plaintiff. other fed and trout and plain did The defendant not have to enter pond or streams, lands fish from the for the *12 tiff’s take right belonged exclusively to fish for them to the owner of (26 privity or in 597; the soil those him. C. Lembeck with J. 601 74 Mont.] R. A. Rep. 828, 578, 8 L. St. Nye, 336, 47 21 Am. St. Ohio 686.) go need further. 24 N. E. We Eighth game this state be- wild in action. The [10] longs to people in their sovereign capacity and it greater than subject private any to dominion extent prescribe. through legislature people have fit to seen (Ex Rep. 129, Am. 37 Pac. parte 476, 103 42 St. Maier, Cal. Sup. 16 519, 793, 40 L. Ed. Connecticut, Geer v. S.U. Rep. 600.) Ct.
Section 1921, Revised 6665, Codes declares: “Animals [11] wild nature are subjects ownership, living, only person claiming them, when the land or tamed, possession, when or taken or held in the disabled pursued.” immediately Considering an identical statute person right pos with reference of a entitled trespassers session had killed from which away ducks, supreme California, speak taken wild court of ing through Fleet, Justice Yan Mr. said under this statute an protected individual enjoyment as much of his rights species property this as other under the law. birds, “While wild therefore, plain these arе within the he has under statute inclosure, tiff’s this such in them protect him them from invasion entitle those not author violating any person rights ized there, to be such is as trespasser though entering much unbidden the dwelling.” (Kellogg King, 114 Rep. Cal. Am. St. 46 Pac.
In State v. Mallory, Ark. Ann. Cas. L. R. A. 83 W. it is game S. held that when wild or fowl are private grounds of an individual, qualified property in it, the individual attaches to with the exclusive hunt, capture (And kill and it. Warren, see Shulte v. supra.) pleading
Whether or not under his may assert ownership qualified question, wild ducks is clear *13 ’25 T. Bros., Bankers, Larabie Inc. Fortier capture kill оr defendant, to trespasser, that the had them land. judgment is affirmed.
'Affirmed. concur. Associate Galen, Justices Stark Matthews apparent MR. that JUSTICE' HOLLOWAY: It is so facts stated each a technical tres- of action disclose cause pass upon plaintiff’s my ap- property that, judgment, peal consideration, does merit but should dis- serious be posed summarily under Rule XVIII of of the rules this court.
FORTIER, LARABIE BROTHERS, Appellant, Respondent. INC.,
BANKERS, (No. 5,749.) (Submitted October 1925. Decided November Pac. 237.] Payments Money Application had and Received — Escrows— —Complaint—Insufficiency—Causes Action. Necessary Allegations. Complaint of Action— —Cause action, complaint state a cause must show a 1. To ‘ plaintiff and a of that violation defendant. Disregarded as Immaterial in Deter-
Same—Inconsistent Averments — Sufficiency Pleading. mining money complaint Where in an had and received money repeatedly sought paid alleged by of a contract allegation be recovered was agreement bank an eserow defendant under virtue plaintiff to person, a third his further between under payment been made a different had and inconsistent with averments contradictory to was contract first pleading disregarded determining whether must made of action. state was sufficient to Eight Apply Payments Payments Application of —Bank’s Escrows— Land; Assignor 'Contract. It from Debt Due Made to agreed agreement a bank to receive an under escrow 3. Where assignment and an thereof lands purchase state certificate assignor pay- credit for the plaintiff, receive instruments to surrender the assignee, and to by the made ments assignor completed, later payments were latter when the transferred payments made thereafter bank, the interest