dissenting:
Respondent Gissel trespassed upon land owned by the State of Idaho and land owned by the United States Forest Service and harvested wild rice off this land. The land in question was “jointly” managed by the Idaho Fish & Game Department and the United States Forest Service for wildlife management purposes. The rice was raised as cover habitat and feed for migratory water fowl. The defendant was a former employee of the Fish & Game Department who knew the purpose that the wild rice served. Defendant trespassed on the land and harvested the rice without any claim to or interest in the rice. The state, upon discovering the taking, had the rice seized pursuant to a valid search warrant. The respondent was charged with trespass and taking produce and was convicted in the magistrate court. On appeal, the district court set aside the jury verdict against the respondent upon the grounds of insufficient evidence. However, the district court’s reversal was itself reversed on appeal by the Idaho Court of Appeals. State v. Gissel, 105 Idaho 287, 668 P.2d 1108 (Ct.App.1983). Nevertheless, on remand *730the prosecutor apparently did not desire to pursue the case further, and the charges against the respondent were dropped. Because the rice was perishable, it had been sold soon after it was seized.
Gissel now brings an action for the tort of conversion for one-half the value of the sold rice, claiming status as a prior possessor of the rice and asserting superior rights against the State of Idaho in that portion of the rice harvested from the U.S. Forest Service land. Accepting the fact that 50% of the crop was grown on United States Forest Service land, the issue in this case is whether one who has admittedly trespassed and taken wild rice which does not belong to him can maintain an action for conversion based on an alleged status as a prior possessor. The wild rice was not abandoned, lost or mislaid property, which would implicate certain rules of law.1 Rather, it was wrongfully taken from the owners.
As the majority opinion correctly points out, conversion is “any distinct act of dominion wrongfully exerted over another’s personal property in denial or inconsistent with his rights therein, such as the tortious taking of another’s chattels, or any wrongful exercise ... over another’s goods, depriving him of possession, permanently or for an indefinite time.” Klam v. Koppel, 63 Idaho 171, 118 P.2d 729 (1941) (emphasis added). In order to constitute conversion, the “act of dominion” exerted over another’s property must be “wrongful,” and it must be "inconsistent with his [the claimant’s] rights.” In this case the state’s taking of possession was not “wrongful”; rather, it was legally taken pursuant to a valid search warrant. Furthermore, the taking pursuant to the valid search warrant was not “inconsistent with his rights therein,” because, as the following authorities demonstrate, Gissel has no “rights” in the wild rice.
Gissel claims the proceeds to the rice based solely on a prior possession theory. As the majority opinion correctly notes, Gissel was a trespasser who had no title or claim to title. The district court, characterizing Gissel’s conduct as analogous to a “thief” at common law, erroneously accepted Gissel’s argument by ruling that “[t]he possessory title of the thief is good against all the world except the true owner or somebody acting on behalf of the true owner as their agent or assignee.” This assertion is not supported by any legal citation. Prosser, in discussing a “thief’s” interest in allegedly converted property, states: “[N]o court has ever allowed an admitted ... thief without claim of right to recover and it seems improbable that one ever will.” Prosser & Keeton, Law of Torts, § 15, p. 103 (1984).
Keeping in mind that Gissel’s claim, as the trial court described it, rests solely on a claim of prior possession by a “thief,”
“[T]he essence of an action for convex sion is the wrongful deprivation of property from the person entitled to possession. A party claiming a conversion must show (1) an unauthorized and wrongful assumption of control, dominion, or ownership by a person over the personalty of another; (2) his right in the property; (3) his right to the immediate possession of the property, absolute and unconditional; and (4) a demand for possession thereof.” Kunde v. Biddle, 41 Ill.App.3d 223, 353 N.E.2d 410, 412 (1976). (Citation omitted.)
Gissel cannot meet these elements.
First, the state legally came into possession of the rice pursuant to a valid search warrant. Accordingly, there was no “un*731authorized and wrongful assumption of control, dominion, or ownership [by the state] over the personalty of another.” (Emphasis added.)
The second element also is not met by Gissel. The only claim that Gissel can demonstrate in the rice is that of one who “knowingly” and “wrongfully” took property which did not belong to him. Gissel’s tenuous claim to the rice rests only on the status of prior possession by a “thief.” When the rice was taken from Gissel pursuant to the valid search warrant, Gissel lawfully lost possession, which was his only claim to the property. Neither Gissel, the district court, nor the majority opinion herein point out at what point in time the state’s alleged act of conversion took place. No conversion could have occurred when possession was taken from Gissel because that taking was pursuant to a valid search warrant, and therefore was not “an unauthorized and wrongful assumption of control, dominion or ownership____” Klam v. Koppel, 63 Idaho 171, 118 P.2d 729 (1941). The subsequent disposition of the perishable property to prevent spoiling could not have been a conversion against Gissel because, at that time, he had neither possession nor any legal claim to the rice. Accordingly, Gissel cannot meet the second requirement.2
Third, Gissel cannot demonstrate any right to immediate possession of the rice. One must be entitled to immediate possession of a chattel before he can successfully contend that the actor’s failure to yield possession constitutes “conversion.” Artman v. Ray, 263 Or. 529, 501 P.2d 63 (1972). Gissel has not demonstrated a right to immediate possession of the rice.
A “thief” is not entitled to bring an action for conversion. “It is elementary that one who steals or converts property to his own use does not thereby acquire title thereto.” Stewart v. People, 193 Colo. 399, 566 P.2d 1069, 1070 (1977). The California case of Suttori v. Peckham, 48 Cal.App. 88, 191 P. 960 (1917), is on point. In that case, the plaintiff Suttori was captain of a fishing boat operating off the California coast. The plaintiff was arrested at sea by a deputy sheriff for fishing with a net within three miles of the coastline, in contravention of a California statute which prohibited this. The defendant Peckham was the magistrate who charged Suttori and who ordered the fish seized during the arrest and distributed to the poor. When the charges were later dropped, Suttori brought suit claiming conversion. At the subsequent civil trial, Suttori lost and an appeal followed.
The appeals court affirmed the district court, holding that during the trial there was sufficient evidence produced to prove that Suttori had taken the fish within the three mile limit. The court stated:
“This fact was sufficient to justify the court in finding that the plaintiff was not the owner nor entitled to the possession of the fish, if the taking of the fish with a net and within three miles of that island was prohibited by law and was a criminal act.” 191 P. at 961-.
The court went on to conclude that:
“It should need no citation of authorities to establish the proposition that no person can acquire title or right of possession to property of the state by the act of taking possession thereof illegally. But the plaintiff cannot maintain this action if at the time of the alleged conversion he had neither ownership nor right of possession in the goods alleged to have been converted. Hilmer v. Hills, 138 Cal. 134, 70 P. 1080.” 191 P. at 961.
*732It is clear that neither theft nor illegal taking of property can give rise to the type of “property right” required to maintain an action for the tort of conversion. See also Covington v. Lewis et al., 83 Cal.App. 8, 256 P. 277, 278 (1927) (citing Suttori and holding that a plaintiff cannot maintain an action for conversion unless he is entitled to possession). The rule adopted by Suttori extends back through the years when, in 1859, a Georgia court held that a plaintiff cannot maintain a conversion action on the strength of a fraudulent or void title. Mulligan v. Baily, 28 Ga. 507, 510 (1859).
Finally, Gissel did not make out any claim of right to the rice, but only a claim of a “thief.” The rule of law is that Gissel must recover on the strength of his own title, without regard to the weakness of that of his adversary. Denver Livestock Com. Co. v. Lee, 18 F.2d 11 (8th Cir.1927), rehearing denied 20 F.2d 531 (8th Cir. 1927); Union Stock Yard & Transit Co. v. Mallory, Son & Zimmerman Co., 157 Ill. 554, 41 N.E. 888 (1895); Baker v. Seavey, 163 Mass. 522, 40 N.E. 863 (Mass.1895); Dorrell v. Clark, 90 Mont. 585, 4 P.2d 712 (1931); Sussman v. Mentzer, 76 P.2d 595 (Wash.1938); Lee On v. Long, 37 Cal.2d 499, 234 P.2d 9 (1951); Malchow v. Boise Cascade Corp., 20 Wash.App. 258, 578 P.2d 1337 (Wash.App.1978). The majority opinion comes to its conclusion based on what it sees as a weakness in the state’s claim to the rice, not based on Gissel’s ability to bring a prima fade case of conversion. Gissel has no claim of right,3 and as discussed above cannot meet the elements required of a plaintiff in a conversion action.
Since Gissel’s claim of prior possession rests solely on the asportation of the wild rice, neither policy nor concepts of justice support such a claim under these facts. First, the policy behind protecting prior possessors is to ensure the ultimate protection of the true owner’s interest. Waugh v. University of Hawaii, supra.4 Protection of Gissel does not protect the U.S. Forest Service interest in wildlife management, but only protects the interest of Gissel.
*733The district court and the majority sidestep defendant’s Exhibit “B”, which is a memorandum of understanding between the Fish & Game Department and the Forest Service, and Stipulation No. 2, which states:
“2. The U.S. Forest Service, claiming an interest in approximately one-half of the wild rice, refuses to release its interest to other than the Idaho Department of Fish and Game.” (Emphasis added.)
These documents demonstrate, if nothing else, where the interests of the true owner, the Forest Service, lie, and that is with the state and not with Gissel. To protect Gissel is to condone the actions of a “thief.” The law should not reward theft.
. Even if the concept of prior possessor, as borrowed from "abandoned and lost property" law, could be logically applied to theft situations where the property owner is known, the law imposes an obligation upon the finder (Gissel) of lost goods who takes goods into possession to use due care in keeping the goods and requires the finder to deliver the goods to the owner upon demand. Waugh v. University of Hawaii, 63 Hawaii 117, 621 P.2d 957, 969 (Hawaii 1980); 36A CJ.S. Finding Lost Goods § 7 (1961) (duties and liabilities of finder to owner). If the state owes $10,500 to Gissel, Gissel then owes that money to the United States Forest Service and is under an immediate duty to deliver. However, as the record reflects, the U.S. Forest Service has released its interest to the State of Idaho, as discussed hereinafter.
. The case law overwhelmingly holds that, in order to successfully prosecute a conversion action, the plaintiff must establish his title or right of immediate possession to the property allegedly converted. McKibben v. Mohawk Oil Co., Ltd., 667 P.2d 1223 (Alaska 1983); Pierce v. Ackerman, 488 P.2d 1118 (Colo.App.1971); Artman v. Ray, 263 Or. 529, 501 P.2d 63, rehearing den., clarified 263 Or. 529, 502 P.2d 1376 (1972); Bloedel Timberlands Development, Inc. v. Timber Industries, Inc., 28 Wash.App. 669, 626 P.2d 30 (1981); Champion Ventures, Inc. v. Dunn, 567 P.2d 724, appeal after remand 593 P.2d 832 (Wyo.1977). Creating a property interest in Gissel, in effect, would create a property interest in a thief valid against all but the true owner.
. Alternatively, along this line of argument, several cases support the proposition that "in an action for conversion, proof of title or right of possession of the property in a third person is a good defense." Reynolds v. Fitzpatrick, 72 P. 510 (Mont.1903). See also Glen Arms Associates v. Century Mortgage & Investment Corp., 680 P.2d 1315 (Colo.App. 1984); Krewson v. Purdom, 11 P. 281 (Or.1886), holding that a defendant may refuse to return property to a plaintiff claiming conversion if refusal is made in good faith and in recognition of the rights of the party to whom the property lawfully belongs. The record in this case demonstrates that the wild rice belongs to the U.S. Forest Service and that it was stipulated (as discussed hereinafter) that the Forest Service agreed to release the rice only to the State of Idaho. Under such circumstances, the state has a valid defense to Gissel's claim if the district court’s assertion — that a "thief’ has good title against all the world except the true owners — is upheld. If the state had given the rice to Gissel on demand, it would have done so in contravention of the U.S. Forest Service’s rights in the rice.
. According to Prosser, the policy behind protecting a prior possessor is wavering and should be limited. Prosser states:
“The original justification for this lay in the convenience of treating the possessor as the owner, and the encouragement to peace and security expected to result from the protection of any possession against a wrongdoer with no rights at all. Modern law has discovered new reasons of business convenience for permitting the possessor to maintain the action, and recover the full value of the chattel. It is said that the possession is a sufficient title against the wrongdoer, because the man in possession is, of the two, the proper party to account to the true owner for the amount recovered, and to adjust with him any question as to their respective rights. But, since a full recovery by one in possession will bar any subsequent action by the true owner, the disadvantages are obvious. Such a rule may result in considerable hardship where the possessor mishandles the suit, or is not to be trusted with the proceeds. For these reasons it has been suggested that the possessor’s right to recover more than the value of his own interest in the chattel should be limited to cases where he has the express or implied consent of the owner to bring the action, or the owner cannot be found; and that the proper procedure when the question of the jus tertii raises is for the court, of its own motion, to stay proceedings until the owner can be notified, and permitted to decide whether he wishes to intervene in the action, or take other measures of his own.” Prosser & Keeton, Law of Torts, at 103-104 (1984). (Emphasis added, citations omitted.)