Opinion
October, 1905.
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 case 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 the forest preserve. The plaintiff, to 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 a quantity 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 forever, 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 New 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.