Out There: Whose game is it?

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    A friend of mine killed the buck of a lifetime recently — a big-bodied whitetail with a huge rack.

    He killed the deer on private property. Each year for several years he has paid the landowner a fee for the privilege of pursuing whitetails there.

    It was 9 a.m. My friend had been hunting since dawn. His vigilance paid off. He saw the big buck approaching him on a logging road.

    He noticed immediately the deer was limping. One front leg was injured, but the buck was standing and walking. It showed no ill effects other than the slight lameness.

    My friend aimed and shot. The deer dropped dead in its tracks.

    What happened next astounded my hunting buddy. Thirty minutes had passed when the landowner and his son walked up. Even before he spoke to my friend, the landowner began tying a deer tag to the buck's horns.

    "I shot him a couple of hours ago," the man said, "and we've been tracking him since then. We heard your shot."

    The man and his son rolled the deer and showed my friend where the landowner's bullet had passed through the buck's shoulder. It was this wound that caused the deer's hobbling, but it was not a killing shot.

    Nevertheless, the man took possession of the deer without discussion and a short time later, he and the deer were gone.

    "I was flabbergasted," my friend said. "He acted as if there was no doubt whatsoever that the deer was his. I felt differently, of course.

    "The landowner had wounded the deer, but I believe the animal would still be alive if I hadn't killed it. I felt strongly the deer should be mine, but I didn't want to cause a scene. So I just bit my tongue and didn't argue."

    There was an understandable bitterness in my friend's voice.

    "It was the biggest buck I've ever killed," he said cheerlessly. "And every time he looks at its head hanging on his wall, I hope he thinks about that."

    Situations such as this are nothing new.

    They happened even in ancient times, for people cannot be relied upon to follow the golden rule. Sometimes the hunters settle the matter to the satisfaction of both parties, but some parties wind up in court with a judge deciding the case.

    Each case involves different circumstances, so no hard-and-fast rule can be said to govern situations of this sort.

    Nevertheless, enough decisions have been handed down through the centuries to establish a large body of legal precedent with which all sportsmen should be familiar.

    One of the earliest records comes down to us from Gaius, a second-century Roman patriarch of modern lawgivers.

    "One does not become the proprietor of a wild beast which he has wounded, but which he has not effectually taken," Gaius wrote.

    "Pursuit alone vests in the sportsman no property in the animal pursued; and even pursuit accompanied by wounding is equally ineffectual for the purpose, unless the animal is actually taken."

    The English later adopted this Roman law as their own and, in time, the law of the chase spread to America, as well. One of the first cases in which it figured prominently reached the New York judiciary for decision.

    Caleb Haines was following his dogs, which had jumped a fox. A trapper named Nord Munger heard the hounds as the chase drew near his cabin. Rushing out with a gun in his hand, Munger saw the exhausted fox slink into some bushes. He shot the animal and took it just before Haines and his hounds arrived.

    Haines sued Munger for the value of the carcass and pelt. But the New York court ruled that because Haines merely was pursuing the fox when Munger shot it, he had acquired no property in it. The fox belonged to Munger.

    The judge, however, also made a backhanded remark about Munger's unsportsmanlike conduct:

    "However uncourteous or unkind the conduct of Munger toward Haines may have been, and that his conduct was of that nature appears undoubted, his act was nevertheless productive of no injury or damage for which a legal remedy can be applied."

    This decision established a precedent for other U.S. courts. Where there were conflicting claims to game, the hunter was entitled to the bag if he deprived the animal of its natural liberty, by wounding or otherwise, to an extent that it was brought within his power.

    A later New York case emphasizing this requirement of practical possession came about as the result of a dispute between two deer hunters, one Mr. Fenning and a Mr. Fargo.

    Fenning shot a buck being chased by his dogs. The deer fell but quickly rallied and disappeared from Fenning's sight with the dogs in pursuit. Darkness was falling, so Fenning abandoned the chase and returned to camp.

    Six miles from the place where Fenning wounded it, the buck appeared before a second hunter, Mr. Fargo, who shot the animal and finished it off.

    Back on the deer's trail the next morning, Fenning came upon Fargo and his kill and argued his right to the buck because he had wounded it with a shot he believed would have proved fatal.

    Fargo believed the deer was his property because he had fired the killing shot.

    Fenning took the case to court — and lost.

    "It is sufficient to give the hunter legal ownership," the decision read, "if the animal has been deprived of his natural liberty so that it is brought within the power and control of the pursuer. But this deer, though wounded, ran six miles.

    "Fenning abandoned the pursuit that day. When he resumed it next morning, he found that Fargo had killed the buck the afternoon before.

    "The animal was not deprived of his natural liberty so as to be within Fenning's control when Fargo gave the finishing shot. The prize must go to Fargo for that shot."

    A 1940s case involved a similar controversy. Cy Hanson wounded a deer that fell but bounded up again and raced away. Another hunter, Cal Sutter, saw the wounded deer and killed it.

    "Hanson claims ownership on the ground that he was pursuing and had wounded the deer," the court explained, "and was therefore entitled to possession of it, even if the mortal wound was given by Sutter.

    "The controlling principle of the common law is that a huntsman acquires no title to any wild animal by pursuit alone, even though there is wounding, unless the animal is followed and reduced to actual possession. Sutter 'beat him to it,' and Hanson must accordingly endure his loss."

    In more recent years, some judges, without actually departing from the established rule giving the game to the person who inflicted the killing shot, have recognized the possibility that the first hunter's shot, itself, was mortal.

    And in cases where this was proved, the game was declared to be owned by the first hunter rather than the person who put the last bullet into it.

    A Wisconsin court, for example, ruled, "The instant a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property in it accrues to him which cannot be divested by another's interfering and killing it."

    Happily, such disputes between hunters don't often wind up in court. Usually, as was the case with my friend, one hunter or the other will pull in his horns and back out. But hunters, being human, naturally resent their quarry being taken by an unsportsmanlike interloper.

    How today's courts might rule on such a case, I cannot say with certainty. But the precedents described above lead me to believe a common sense approach is likely to be taken.

    If a hunter kills an animal that was previously wounded by another person, and if he can prove he had that animal in such a situation that its escape was impossible, the hunter whose act finished off the game will be determined to own that game.

    In the end, however, the best course of action is such situations is the one taken by my friend: follow the golden rule. If we all emulated his example, everyone would be a winner.

    To contact Keith Sutton, email him at catfishdude@sbcglobal.net. His new book, "Out There Fishing" (Stoeger Publishing; $19.95), is available at www.catfishsutton.com.