touching the ownership and right of possession in this property is that given by the consignor and consignee, and is as follows: The consignor, J. W. Pratt, testified: "I was sending this money to my brother for payment on some money I owed him." The consignee, the plaintiff in this case, testified on cross-examination as follows: "Q. Do you know why any money was being sent you at that time by your brother? A. Why, it was sent to me? Q. Yes. A. He owed me this money. Q. What money is that? A. The money he was to send me. Q. If I understand you, any money that was being sent, if he sent any, was being sent in payment of an indebtedness he owed you? A. Yes, sir." At the trial plaintiff produced the receipt issued by defendant's agent at Culdesac, proved a demand made on the company for the money after they had been given a reasonable time for the delivery of the same, and produced the consignor as a witness on his behalf. It was also shown that the agent at Culdesac had stated to plaintiff's attorney that the office had been robbed and this money had been stolen; that the agent at Lewiston refused to pay the money, and also stated to plaintiff's attorney that he understood the office at Culdesac had been robbed and this money stolen. Under this state of facts the question arises as to whether the plaintiff can maintain this action or it should have been prosecuted in the name of the shipper. This question seems to have disturbed the Judicial mind in England at a very early date, even before transportation by land had become very general.

In Griffith v. Ingledew, 6 Serg. & R. 429, 9 Am. Dec. 444, the Supreme Court of Pennsylvania divided over the application of this principle of law, and in the majority and dissenting opinions will be found an interesting review of the early English authorities on the subject. The majority of the court held that, although the title to the goods remained in the consignor, still the contract was made for the benefit of the consignee and that he might sue upon it, and that the carrier, having received the goods under agreement to deliver them to the consignee, could not be heard to question the latter's right to maintain an action for their recovery. In later years the English courts seem to have held that the action can only be maintained by the owner of the goods, property, or money intrusted to the carrier. In support of this view, the case of Coombs v. Bristol & Exeter Ry. Co., 3 Hurl & Norman, 510, determined in the court of Exchequer in 1858, will be found very interesting and instructive. In this country the point has been variously determined, though perhaps there is not such a great conflict when the facts of the cases are taken into consideration as would at first appear. Where the consignor has sued, the courts have generally held that he was a proper party and could maintain his action, and where the consignee

has sued, they have generally sustained him. In Ogden v. Coddington, 2 E. D. Smith, 317, the Court of Common Pleas of New York, in 1854, said: "I think the plaintiffs are right in saying that a mere consignee cannot maintain an action for the negligence of the carrier, or the breach of the carrier's contract. Such right of action belongs to the owner of the goods. The contract of the carrier, as evidenced by the bill of lading, is made with the shipper. If the shipper is owner, or has a special property in the goods, he may sue thereon. If the consignee is owner, then the shipper is regarded as his agent, and, the contract being made for the owner's benefit, he may sue thereon, in virtue of his property in the goods and his exclusive beneficial interest in the contract." In 1873 the same question arose in Alabama, in the case of Southern Express Co. v. Armstead, 50 Ala. 350, and the court there said: "The consignee of goods has the right to sue for their loss by the carrier, notwithstanding another party may be the owner of them. The obligation is to deliver to him. Generally the property vests in him by the mere delivery to the carrier. Although the absolute or general owner of personal property may support an action for any injury thereto if he have the right of immediate possession, this does not necessarily divest the right of the consignee to sue, notwithstanding he has never had the actual possession." The case nearest in point with the one at bar as to the facts involved is that of Bernstine v. Express Co., 40 Ohio St. 451, determined by the Supreme Court of Ohio in 1884. The point there determined is stated in the syllabus as follows: "Where a creditor, living at a distance from his debtor, requests the payment of the debt without giving specific instructions as to how the money shall be sent, and the debtor sends it by an express company, and it is lost in transitu, the debtor may maintain an action against the company for its recovery." In the latest edition of Hutchinson on Carriers (volume 3, § 1317) the author in discussing the subject, "When a consignee may sue," says: "And it may be stated as a well-settled rule that if the goods are delivered to the carrier on behalf of the consignee, and at his request or by his direction, either express or implied, and no other fact appears, the legal presumption will be that the property in the goods immediately on such delivery becomes vested in him, and that he is the proper party to bring an action against the carrier either in assumpsit in his own name upon the contract with the consignor as his agent, or in case for the breach of duty on the part of the carrier, or in the name of the agent for his use upon the special contract of affreightment. But. after all, the question whether the property in the goods has passed to the consignee by a delivery to the carrier will depend upon the intention of the transaction, and this may always be shown. And if the consignee,

after the goods have been destroyed in transit, purchases them from the owner, it has been held that such consignee may maintain an action in his own name against the carrier for damages. And the fact that the goods were destroyed before the consignee's purchase was held to make no difference." In 6 Cyc. p. 468, Justice McClain, the author of the text, in considering the question as to whom delivery may be made by the carrier, says: "Where the carrier receives the goods under a contract, either express or implied, from the marks on the goods, to deliver them to a person named, without any reservation of power of disposal by the consignor, then the delivery to such person completes the contract and relieves the carrier from further liability. This rests on the assumption which the carrier is authorized to entertain, that the title to the goods passes to the consignee on delivery to the carrier." See, also, 7 A. & E. Ency. 220, and 12 A. & E. Ency. 558. It will be seen that the authorities quite generally agree that where the shipper delivers his property to the carrier, marked and addressed to another person as consignee, and gives the carrier no other or further notice than that to be presumed and inferred from the act of consignment, the law will presume the contract for transportation to have been made for and on behalf of the consignee, and that the consignee is the owner of the property and entitled to its possession and to sue therefor. It should also be remembered that, where the shipper delivers the property over to the carrier without any special instructions as to its ownership or its delivery on any condition, the consignee becomes immediately entitled to the possession of the property and may demand and lawfully receive it forthwith from the carrier, and that the carrier will be justified in delivering it to the consignee at any point on its line of transportation. 2 Hutchinson on Carriers, § 735; Express Company v. Williams, 99 Ga. 482, 27 S. E. 743. In the case at bar the plaintiff might have lawfully demanded this sack of money from the express agent immediately after its delivery by the consignor, and the express company would have been legally justified in delivering it to the plaintiff then and there or at any point along its line of transportation thereafter, provided, however, that the consignor had not in the meanwhile given different or contrary directions to the express company. In Bernstine v. Express Company, supra, the creditors had written their debtor to "send them some money," but did not direct him as to the means he should employ in sending it. The court held that it was the duty of the debtor to pay his creditor in person, and that the money while in the hands of the express company was there at the risk of the debtor, and that the loss primarily fell upon the debtor; that the deposit of the money with the express company did not pay the debt, and did not relieve the consignor of

his liability to his creditors; and that, therefore, the debtor was a proper party to sue for its recovery. It should be borne in mind, however, that the Ohio court did not hold that under the facts of that case the creditor could not have maintained an action against the carrier. It is true it did hold that the consignor could maintain the action. Had the debtor made no demand of the carrier and the creditors had sued, we are inclined to the opinion that the court would have sustained them in their action. In the case at bar the consignor was indebted to his brother and was sending him this money in payment thereof. The consignor said this was "the money he [the debtor] was to send me." It is therefore apparent from the evidence that J. W. Pratt was to send $660 from Culdesac to J. M. Pratt, the plaintiff, at Lewiston. Now, then, the record is silent as to the manner of the sending or the means he was to employ in sending that money. If the law presumes in the first instance that the consignee was the owner of this money, and the carrier was authorized and directed to deliver it to the consignee, and this was money it had been agreed between debtor and creditor should be sent to the creditor, then, it seems to us, that the fact of the consignee appearing in an action prosecuted against the express company and producing the company's receipt for the money and the consignor as a witness in his behalf will justify the further conclusion and presumption that the manner of shipment and means employed were also such as had been agreed upon between them. In other words, with the evidence before us as produced in this case, showing that this property was to be sent by the consignor to the consignee, and that the consignment was general in terms, and such as would lead the carrier to the legal conclusion that both the title and right of possession was thereby vested in the plaintiff, and there being no evidence as to the instructions by the consignee as to the means of transmission of the fund, it appears to us more reasonable to infer that the means employed was as agreed upon or as directed than otherwise.

The express company is liable to some person for this money, and it can make no difference to the company whether it pay the consignee or the consignor. The only concern it has is to see that it is protected from payment a second time. This judgment in favor of the plaintiff is clearly a bar to the consignor ever maintaining an action against the company for a recovery on the same contract. When he delivered the property to the express company, he directed them to deliver it to the plaintiff. He thereby vested in the plaintiff an immediate right to the possession of the property. He never thereafter changed his directions or instructions to the company, and has never demanded of the company that they surrender the property to him or pay damages for a failure

cases we have examined as the same presents itself to our minds.

The judgment is affirmed, with costs in favor of the respondent.

SULLIVAN, J., concurs.

The

It appears to us that considerable fallacy and illogical reasoning has crept into some of the cases to which our attention has been called, and this seems to be due largely to the fact that in these cases the question has been treated with a view to the relation existing between the shipper and consignee in reference to the ownership and right of possession of the property rather than considering the true question of the relation the carrier sustains to each of these parties respectively. Any difference or diversity of interest that may arise between the consignor and consignee can in no respect concern the carrier so long as it is protected against responding for the property more than once. ownership may be general and unqualified or special and limited. The right of possession may be absolute or contingent. In either instance the interest would be sufficient on which to found an action in the absence of the assertion of a superior right in another. The success of the demand and claim of one apparently entitled to possession as against the carrier will relieve the carrier from further responsibility even to one having a better right. Under our statute (section 4113, Rev. St. 1887; First Nat. Bank of Hailey v. Bews, 3 Idaho, 486, 31 Pac. 816), if there is any question or doubt as to the party to whom the carrier is liable, all necessary parties may be brought in and required to set up their interests and thereby determine the respective rights and effectually protect the defendant from the possibility of the assertion of any further claim by other parties. So in the case at bar the express company might have had the consignor brought in as a party to set up any interest or claim he might have. We think the plaintiff has shown sufficient interest in the subject of the action herein to sustain the verdict and judgment in his favor.

No other assignment of error has been argued by appellant, and we take it that there is none that merits consideration. We are not unmindful of the fact that some things we have said herein are in conflict with what is perhaps the weight of authority, but of the substantial justice which our conclusions reach we have no doubt. If our reasoning should appear to any illogical, it is in no worse

(13 Idaho, 399)

SHERWOOD v. STEPHENS. (Supreme Court of Idaho. May 10, 1907.) 1. GAME-POWER TO PROTECT AND REGULATE. It is within the police power of the state to enact such general laws as may be neces sary for the protection of fish and game and to regulate and restrict the right to take game or fish, and may absolutely prohibit the taking thereof for traffic or commerce.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 24, Game, § 2; vol. 23, Fish, § 16.] 2. SAME-NATURE OF PROPERTY.

There is a fundamental distinction between the ownership which one may acquire in game and the ownership which one may acquire in chattels or lands.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 24, Game, § 1; vol. 2, Animals, §§ 1-4.] 3. FISH-PROTECTION-OFFENSES.

A party is prohibited from in any manner impeding the passage of fish up or down the streams in this state by any obstruction placed in the stream.

[Ed. Note. For cases in point, see Cent. Dig. vol. 23, Fish, §§ 22, 23.]

4. SAME-PRIVATE PONDS.

Under the provisions of section 3 of an act passed for the protection of fish and game by the Legislature in 1903 (Sess. Laws, p. 189), and as amended in 1905 (Sess. Laws, p. 258), private ponds may be constructed and maintained and stocked with fish, and the right to do so is a statutory right.

5. SAME-COMPLAINT-SUFFICIENCY.

In order to maintain an action for damages resulting from an alleged releasing of fish from an alleged private pond, the facts showing that such pond was established and stocked with fish in accordance with the provisions of said law must be alleged.

6. PLEADING COMPLAINT - STATUTORY ACTIONS.

Where a pleader wishes to avail himself of a statutory privilege or right granted on particular facts, such facts must be alleged in the complaint.

7. GAME-WRONGFUL TAKING-COMPLAINT

In order to recover in this action, the plaintiff must allege the facts showing that his private ponds were constructed in accordance with the provisions of the statute, and, in order to show that he had a property right in the fish therein, must also allege that such ponds were stocked with fish as provided by law. (Syllabus by the Court.)

Appeal from District Court, Fremont County; James M. Stevens, Judge.

Action by J. Sherwood against W. N. Stephens, state game warden. From a judgment for defendant, plaintiff appeals. Af firmed.

Caleb Jones, for appellant. Soule & Soule and Deitrich & Clark, for respondent.

SULLIVAN, J. This action was brought by the appellant to recover $7,500 damages

alleged to have resulted from the defendant, who is respondent here and who is state game warden, freeing and turning 750,000 fish out of ponds alleged to belong to the appellant. It is alleged in the complaint that the appellant is the owner of and in the possession of the S. W. of section 33, Tp. 16 N., range 43 E. B. M., in Fremont county; that the plaintiff did between the year 1892 and the year 1904 construct four artificial fish ponds on said land, and did supply said ponds with water from a certain spring situated on said land and connected said ponds with artificial waterways, and did erect and construct at the outlet of each pond certain gates, the raising of which would drain each of said ponds, and also supplied each of said ponds at the outlet and intake thereof with screens, and also placed screens in the artificial waterways constructed as aforesaid, the said screens being so placed to prevent fish in said ponds escaping therefrom; that said ponds were supplied with water taken from said springs and an outlet from said springs was constructed for the purpose of running the water into what is known as "Henry's Lake"; that, after constructing and filling said ponds with water, the plaintiff stocked them with fish; that on or about the 2d day of August, 1905, the respondent entered upon plaintiff's said land, and did with force and violence, without his consent and against his protest, raise the gates at the outlet of each of said ponds, and removed the screens placed at the outlet and intake of said ponds, thereby draining said ponds and freeing 750,000 fish, the property of plaintiff, and compelled the same to go from said ponds through said channels into the waters of Henry's Lake; that by reason of such action the plaintiff was damaged in the sum of $7,500. A general demurrer was filed to said complaint on the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was sustained by the court. Thereupon the plaintiff declined to amend his complaint or to plead further and a judgment of dismissal was entered. This appeal is from that judgment.

It will be observed from the allegations of the complaint that the appellant seeks to recover on account of the loss of 750,000 fish which he alleges the respondent freed from certain ponds which he had constructed upon his premises between the years 1892 and 1904, and had thereafter stocked with fish. It is contended by the respondent that it does not appear from the allegations of the complaint from whence the appellant procured the fish with which he stocked said ponds, nor does it appear therefrom at what time subsequent to the year 1904 said ponds were so stocked, nor does it appear that the ponds did not contain water where food fishes naturally abound; that it cannot be ascertained from the complaint whether or not the waters turned into said ponds were waters

The

It

in which food fishes naturally abound. question is presented whether the complaint should set forth any or all of those matters in order to constitute a cause of action. is contended by counsel for appellant that it is not necessary to allege any of those matters or facts; that prior to the passage of the fish and game law in Idaho the owner of land had a common-law right to construct fish ponds upon any of the natural streams of the state; that the right to construct such fish ponds is not a statutory privilege; that it is a common-law right and the fish and game laws of Idaho are mere regula tions of that right, and cites 19 Cyc. p. 988, where it is said: "As a general rule, the right of hunting or fishing on lands owned by private individuals is in the owner." And again, at page 992, it is said: "The right of hunting or fishing on public lands and waters belongs in common to all members of the public." We do not question that authority, but this is not a question of hunting and fishing. It is a question of the right to establish private ponds and stock them with fish under the provisions of our fish and game laws. The doctrine is well established that by reason of the state's control over fish and game within its limits it is within the police power of the Legislature to enact such general laws as may be necessary for the protection and regulation of the public's right in such fish and game, even to the extent of restricting the use of or right of property in the game after it is taken or killed. 19 Cyc. p. 1006; 13 Am. & Eng. Ency. of L. p. 570. In ex parte Maier, 103 Cal. 476, 37 Pac. 402, 42 Am. St. Rep. 129, the principle is clearly set forth in the following language: "The wild game and fish within a state belong to the people in their collective sovereign capacity. It is not the subject of private ownership except in so far as the people may elect to make it so, and they may, if they see fit, absolutely prohibit the taking of it or any traffic or commerce in it if deemed necessary for its protection or the preservation of the public good." In Hornbeke v. White, 76 Pac. 926, 20 Colo. App. 13, where the court had under consideration a statute making the possession of game unlawful unless permission for such possession was shown, the court held that such statute was a valid police power, and in the course of the opinion the court used the following language: "Thus it will be seen that the highest judicial authority in the land has laid down the principle that the state in its sovereign capacity has power to limit and qualify the ownership which a person may acquire in game, with such conditions and restrictions as it may deem necessary for the public interest, and that there is a fundamental distinction between the ownership which one may acquire in game and the perfect nature of ownership in other property." As bearing on the same question, see Geer v. State of Conn., 161 U. S. 519, 16