96 Vt. 327 | Vt. | 1923
The plaintiff had judgment in the court below on the verdict of a jury. The defendant brings the case here on exceptions saved to the exclusion of certain evidence and to certain portions of the court’s charge. The exceptions all grow out of a single question relating to the right of a county fish and game warden to seize and detain for evidentiary purposes a trap illegally set and a wild animal caught therein. In the circumstances the exceptions do not require separate treatment.
In October, 1919, the plaintiff set a bear trap in the “Sherwin pasture” in the town of Stratton, to which a chain and clog were attached. At some time before the 14th of October, the bear in question got into this trap but had succeeded in getting away from the place where it was set, taking the trap, chain and clog along with it. At some distance from the place where the trap was set the chain became entangled so that the bear had been unable to make any further escape when discovered by members of the defendant’s party. The defendant was then the fish and game warden for Windham County. Having information that there were bear traps set in the vicinity of Stratton in violation of law, he set out in company with two deputy wardens and a guide to make an investigation. Their search brought them to the Sherwin pasture in the afternoon of October 14.
They discovered the place where the trap had been set and indication on the ground that some animal had gotten into it and dragged it away. Continuing the search, one of the party,
The court practically directed the jury to find for the plaintiff so far as taking of the trap was concerned, the only disputed question left to the jury being whether the return of the trap was accepted in full satisfaction of damages. Respecting the taking of the bear, the ease was submitted on the theory that the plaintiff could recover damages therefor if the jury found that the bear was entrapped in such a manner as to deprive it of the power to escape and go at large, and also found that the plaintiff had not abandoned the pursuit before the taking — questions concerning which the evidence was conflicting. The defendant •offered to show what was discovered at the place where the trap was set indicating that it was not set in the manner required by law — that it was not guarded as required by the statute — which was excluded as being immaterial. The court instructed the jury that if they found from the evidence that the plaintiff was
It will be seen that the case presents two separate though interrelated questions: (1) The right of property in a wild animal captured in a manner forbidden by law as against a fish and game warden who, acting in his official capacity, has taken it into his possession with a view of securing evidence for a prosecution of the offender. (2) The right of such game warden to seize without a warrant property of the offender employed in the unlawful capture and retained for a like purpose. The statute, the violation of which is relied upon as a defense to this action, provides: “A person who sets or causes to be set a bear trap shall build in a substantial manner and maintain three-fourths around the same a railing or guard not less than three feet high, and shall protect the entrance of such enclosure against domestic animals by placing a pole horizontally across such entrance at a distance of three feet from the ground. A person who violates a provision of this section shall be fined twenty dollars.” G-. L. 6431. In considering the questions presented we are to assume that the plaintiff had not complied with the requirements of this statute. What effect would such failure have upon the respective rights of the parties?
The State fish and game commissioner is authorized to appoint county fish and game wardens (G. L. 6358) who are required to enforce all provisions of Title 38 of the General Laws,
The plaintiff’s right to maintain an action for damage on account of the bear stands differently than his right of action respecting the trap. His title to the trap was unquestioned and his rights were those of unqualified ownership; while, if he had any property rights in the bear, they were such as arise from having reduced the animal to possession.
The rule is everywhere recognized that animals ferae naturae at large in the State belong to the people of the State in their collective and sovereign capacity and not in their individual and private capacity, except so far as private ownership may be acquired therein under the Constitution, subject always to such proper regulations as the Legislature may make. From this common property an inhabitant of the State has the right to appropriate to his own use such as he may capture and retain in conformity with reasonable regulations established by law for the common good. In such manner, and such only, he can acquire a qualified ownership in the animal which the law recognizes as private property. Such in brief is the holding of our cases. State v. Norton, 45 Vt. 258; Payne v. Sheets, 75 Vt. 335, 55 Atl. 656; State v. Niles, 78 Vt. 266, 62 Atl. 795, 112 A. S. R. 917; Zanetta v. Bolles, 80 Vt. 345, 67 Atl. 818; Bondi v. McKay, 87 Vt. 271, 89 Atl. 228, Ann. Cas. 1916C, 130; Villa v. Thayer, 92 Vt. 81, 101 Atl. 1009, L. R. A. 1918A, 837. The same principles are announced in New England Trout Club v. Mather, 68 Vt. 338, 35 Atl. 323, 33 L. R. A. 569; State v. Theriault, 70 Vt. 617, 41 Atl. 1030, 43 L. R. A. 200, 67 A. S. R. 695, and State v. Haskell, 84 Vt. 429, 79 Atl. 852, 34 L. R. A. (N. S.) 286, cases involving the power of the Legislature to regulate fishing.
It is on the same principle that actions cannot be maintained upon contracts executed in violation of law, as for example on Sunday, or for an illegal consideration, such as notes given for articles sold in violation of law or for-money lost in gambling. On the same principle it was said by this Court in Spaulding v. Preston, 21 Vt. 9, 15, 50 A. D. 68, thát courts of justice will not sustain actions in regard to contracts, or property, which have for their object the violation of law. That was an action of trover against the sheriff of Caledonia County for the detention of pieces of German silver of the size and thickness of Mexican dollars, made in that form for the purpose of being stamped and milled into counterfeit coin, which were seized without statutory authority but were being held for the purpose of evidence. The plaintiff showed title to the property, but was denied a recovery among others on the ground now being considered.
The fact being established that the trap was not properly fenced, and so maintained in violation of law, the means taken to reduce the bear to possession would be wrongful; and, on the authority of the cases cited, the unlawful capture would give the plaintiff no title to the animal that would support this action. The unlawful means of capture would prevent its becoming his property while yet alive. It is immaterial to this case to inquire whose property it became after it was killed. If it then became the absolute property of any one, it was clearly not the plaintiff’s.
The question is unaffected by the fact that the bear was a noxious animal for the destruction of which the State offered a bounty. The distinction found in some cases between wild animals of a “base” nature and those of a “generous” nature relates to the question whether the particular animal was the subject of larceny, and was probably made in favor of human life at a time when larceny was a capital offense. While it has been held that wild animals of a base nature in contemplation of law are not a subject of larceny, it seems that the distinction has never been made when the right of the owner to be protected by a civil action is involved. Warren v. State, 1 Greene (Iowa) 106; Norton v. Ladd, 5 N. H. 203, 20 A. D. 537; 1 Hawk P. C. 33, §23; 4 Bl. Com. 234, 235. The general property in the bear when at large was in the people of the State in their sovereign
The remaining'question involves the right of a public officer charged with the duty of enforcing some provision of law to seize property being used or intended for use in violation thereof and detain the same merely for evidentiary purposes. The right of the defendant to take the trap in the circumstances shown and offered to be shown is unmistakable. It rests upon principles indispensable to the proper administration of criminal law, as is pointed out in Spaulding v. Preston, supra — principles so well recognized and of such general application that the Court was then unable to find any precedent for such an action. We need say no more than that this phase of the case is controlled by the decision of this Court in the ease cited, where the question is fully discussed. A valuable note showing possible limitations of the doctrine will be found in 11 A. L. R. 681.
It follows that the defendant’s exceptions must be sustained and that he is entitled to a new trial in accordance with the views herein expressed.
Reversed and remanded.