p. 102George Pashley, Respondent, v. Charles Bennett, Appellant.Headnote
Bale of confiscated logs l>y a fish and game protector—it is unauthorized —¡apurchaser from him cannot maintain a.suit against one.who talces possession of them without right.Neither a fish and game protector and forester, nor the Chief Game Protector of the State of New York, has any authority to sell confiscated timber and logs cut upon lands within the forest preserve.
If they assume to make .such a sale, the purchaser will not acquire even such a title as will enable him to maintain an action for conversion' against a person who takes possession of the logs and timber without right or authority.
Appeal by the defendant, Charles Bennett, from a judgment of the County Court of Hamilton county in favor of the plaintiff,' entered in the office of the clerk of the county of Hamilton on the 13th day of April, 1905,. affirming a judgment of a justice of the peace of the town of Indian Lake entered on the 27th day of April, 1904.
Andrew J. Nellis, for the appellant.
M. S. Bevins, for the respondent.
The plaintiff in his complaint alleges “ that he was the owner. and lawfully entitled to the possession of about forty cords of wood,” and he further alleges that the defendant unlawfully took the same and has retained possession thereof. He demands judgment for the return of the wood, and in casé the same cannot be returned, for the value thereof. It does not appear that the plaintiff was ever in the possession of the wood. The wood was cut upon lands owned by the State of New York within tlm forest preserve. The plaintiff, t'o establish his case, testified that he purchased the wood of one N. in the summer of 1902. N.' testified that he was a fish and game protector and forester, and that as such- officer he seized aquantity of logs and wood and sold them to the plaintiff under the authority of the chief game protector of the State of - New York.
It does not seem necessary to construe section 7 of article 7 of the - Constitution of the State of New York relating to keeping the lands owned by the State in the forest preserve as wild forest lands
p. 103forever, and prohibiting the sale, removal or destruction of the timber thereon for the reason that we are not aware of any statute or resolution which even assumes to authorize a fish and game protector and forester or the chief game protector of the State of Hew York to sell as agent for the State any wood cut from lands owned by the State in the forest preserve. The authority of the officers named to sell wood cut from the forest preserve, will not be presumed. The action is based wholly upon the plaintiff’s ownership of the wood, and notwithstanding that the defendant, appears to have taken the wood without right or authority, as the plaintiff did not show that he was the owner of the wood and entitled to the possession thereof, the complaint should have been dismissed.
The judgment of the County Court and of the Justice’s Court should be reversed, with costs in this court and in the court below.
All concurred.
Judgment of the County Court and Justice’s Court reversed, with costs in this court and in the court below.