Platt v. Philbrick

NOURSE, P. J.

This is an appeal from a judgment of the Superior Court of Monterey County sustaining defendant’s demurrer and refusing to grant plaintiff an injunction against defendant.

Appellant is the owner and occupant of certain real property in Pacific Grove, which is within the “Monterey Peninsula Game Refuge”, and she seeks to enjoin respondent, a deputy fish and game commissioner, from enforcing the provisions of the Fish and Game Code relating to this area. She contends that the provisions of the code are unconstitutional because not uniform in operation; that it takes and damages her property without due process of law and without compensation; and that it unreasonably discriminates against her. Respondent answers that appellant has no right to at

[29]

tack the constitutionality of the code because she does not allege any act done or threatened which would injure her or her property and because the-only discrimination alleged is in her favor.

Appellant also argues that, since division III, chapter 4, of the code authorizes the purchase of land by the state for fish and game refuges, the fact that the property owners in this district have not been compensated or have not given their written consent is discriminatory. But respondent argues that the provision for compensation controls only in cases where an interest is taken in the land by the state in which case the officers have the right to occupy the property to propagate, feed and protect the fish and game.

The gravamen of appellant’s complaint is that the protection afforded wild game by the statute might result in such an increase thereof that her garden might be injured by the invasion of predatory birds and wild animals.

Section 25% of article IV of the Constitution reads: "The legislature may provide for the division of the state into fish and game districts, and may enact such laws for the protection of fish and game therein as it may deem appropriate to the respective districts.”

Acting under this authority the legislature enacted the Fish and Game Code. ' (Stats. 1933, p. 394.) Section 60 of that code provides that: “For the protection of fish and game, the State of California is divided into fish and game districts