Summary
allowing owners of land abutting a lake access to the entire lake comports with “the immemorial usages, customs, and practices of our people”
Summary of this case from Riverboat Corp. of Miss. v. Harrison Cnty. Bd. of SupervisorsOpinion
No. 33712.
January 15, 1940.
1. FISH.
A riparian owner was not entitled to recover from the State Game and Fish Commission or its members the value of fish taken from lake by a contractor acting under contract with commission to remove non-game gross fish from that lake and other lakes (Laws 1932, chap. 123).
2. INJUNCTION.
Where the members of the Supreme Court were equally divided on question whether a decree should be reversed in so far as it awarded an injunction to a riparian owner enjoining the State Game and Fish Commission from seining or fishing in a certain lake over owner's lands or in any way trespassing on owner's waters and his submerged lands, the decree to that extent was affirmed (Laws 1932, chap. 123).
APPEAL from the chancery court of Desoto county; HON. L.A. SMITH, SR., Chancellor.
W.W. Pierce, Assistant Attorney-General, for appellant.
With a few minor exceptions the general rule is that the title to the bed of fresh water rivers, lakes and ponds, whether navigable or non-navigable, is vested in a riparian owner to the middle or thread of the stream or lake where such owner owns lands only on one side of the lake or river, and to the whole of the bed of the river or lake if the riparian owner owns title to the riparian lands on both sides. Mississippi is no exception to the general rule.
Morgan v. Reading, 3 S. M. 466; Magnolia v. Marshall, 39 Miss. 109; Archer v. Sand and Gravel Co., 58 L.Ed. 850; Richardson v. Sims, 118 Miss. 728.
Since the right of the several riparian owners to the bed of the lake has its existence and is based upon the common law with reference to fresh water streams and lakes, the right to fish or boat in the lake must of necessity depend upon the common law right of the several riparian owners and their licensees or lessees.
Scott v. Napier, Scott's Revised Reports, Court of Session, Third Series, Vol VII, page 32; Mackenzie v. Banks, Vol. III, House of Lords, Law Reports, Appeal Cases, page 1324; Hardin v. Jordan, 140 U.S. 371, 35 L.Ed. 428; Smoulter v. Boyd, 10 Kulp (Pa.) 199; Reynolds v. Commonwealth, 93 Pa. 458; Beach v. Hayner, 207 Mich. 93, 173 N.W. 487, 5 A.L.R. 1052; Sanders v. De Rose, 186 N.E. 388.
The title to the fish in South Horn Lake is in the public even though the title to the submerged land in the bed of the lake is vested in the several private riparian owners as an adjunct to their riparian ownership of a part of the shore line and bed of the lake.
Ex Parte Louis Fritz Co., 86 Miss. 210.
Fish in South Horn Lake not reduced to actual possession are not private property within the contemplation of Sections 14 and 17 of the Constitution of Mississippi 1890 or the 14th amendment of the Constitution of the United States so as to require compensation to be paid to one of the several riparian owners of the lake for fish taken by a licensee or lessee of another riparian owner of the lake.
Ex parte Louis Fritz, 86 Miss. 210.
The State Game and Fish Commission was created for the purpose of discharging a governmental function, and with a design to protect and improve an adequate supply of game and fish in the state, and as such state agent is not liable for the authorized acts of its officers and agents.
Dick v. Drainage and Levee Dist., 147 Miss. 783; Nugent v. Bd. of Levee Com'rs., 58 Miss. 197; Stewart v. State Highway Com., 166 Miss. 43; State Highway Com. v. Knight, 170 Miss. 60; Lowe v. Levee Com'rs., 19 So. 346; Raney v. Hinds County, 79 Miss. 241; Harrison County v. Marione, 110 Miss. 592; Sevier Lake Drainage Dist. v. Kinney, 153 Miss. 440.
Has the state power and right, for the purpose of preservation and conservation, to put to work such a large operation as here involved, and permit the entire expense to be paid by taking large commercial quantities of fish, even though gross or non-game, from above the boundaries of the riparian owner which commercial taking would otherwise belong exclusively to the riparian owner? Or to approach this question from another view, may non-game gross fish be considered predatories so that the state may lawfully destroy them and having that right, may, on taking them out of the lake sell them instead of destroying them?
In approaching the answer to the above question we must consider the ownership and private property right of riparian land-owners in fish in waters adjoining the riparian owners' land.
By reason of the migratory habits of fish their ownership is in the public, and no individual has any absolute property right in them until they have been subject to his control.
Ex parte Fritz, 86 Miss. 210; State v. Hill, 98 Miss. 142; 11 R.C.L., title "Fish and Fisheries," secs. 2 and 3; State v. Buckingham, 93 Miss. 846; Parker v. State, 53 Am. Rep. 643.
In People v. Truckee Lumber Company, 58 Am. St. Rep. 183, it was held that the right to protect fish for the common use and benefit is one of the recognized prerogatives of the sovereign and this recognized prerogative extended to all waters within the state, both public and private, to the extent that a riparian proprietor does not own the fish therein.
To complete a right of property in fish an actual appropriation or mancupation must be made. The possession must be complete.
Sollers v. Sollers, 77 Ind. 148; State v. Theriault, 67 Am. St. Rep. 695; Blackstone's Commentaries, Book 2, page 14.
As to whether or not the taking of fish is the taking of private property for public use for which compensation must be made the court said that it was a power vested in the Legislature to enact laws for the protection and preservation of fish in the waters of the state. This comes under the exercise of the police power, which extends to almost all kinds of property and property rights, and its exercise by the Legislature. It comes under the general power of the Legislature to enact laws for the common good of all the people. All property and all rights are held subject to the exercise of this inclusive power.
State v. Roberts, 59 N.H. 256; Moulton v. Libbey, 37 Me. 472.
It seems clear from the authorities that the state has power in the interest of the public to regulate the manner and prescribe the season for taking fish in all streams and lakes connected with other waters of the state so as to control the migration of fish. The private ownership of the soil under such waters does not preclude the state from making such regulation.
People v. Truckee Lumber Co., 116 Cal. 397, 58 Am. St. Rep. 183; Peables v. Hannford, 18 Me. 106; Commonwealth v. Look, 108 Mass. 452; Ex parte Fritz, 86 Miss. 210; In re Delaware River, 115 N.Y. Supp. 745; State v. Sutton, 139 N.C. 574.
The Legislature may regulate and restrict the fishing and taking of fish on the land of a private individual.
People v. Bridges, 142 Ill. 30; People v. Harding, 137 Mich. 406; Peters v. State, 96 Tenn., 682; California v. Monterey Fish Products Co., 195 Cal. 548, 38 A.L.R. 1186; McKinney v. Farnsworth, 121 Me. 450; Miller v. Schoene, 276 U.S. 272, 72 L.Ed. 568; Wasson v. Greenville, 123 Miss. 642; Clark v. State, 169 Miss. 369; State v. Newman Lumber Co., 103 Miss. 263.
There is a presumption that the public officers will do their duty and act in good faith under legal authority. Bad faith cannot be imputed to the State Game and Fish Commission in seining South Horn Lake.
State v. Washington Steamship Co., 76 Miss. 449; Bullock v. Sandford Cons. School Dist., 153 Miss. 476; Bousquet v. Brown, 152 Miss. 171; Bd. of Sup'rs v. Jones, 103 Miss. 602; Wood v. State, 169 Miss. 790; McLeod v. State, 154 Miss. 468; Town of Ackerman v. Choctaw County, 157 Miss. 594.
It will be argued that the Legislature was without power to delegate to the Game and Fish Commission the right to prescribe the means and method of removing fish from the lake for purposes of conservation and propagation. This is answered by specific insistence on the operation of the same principle under state statutes, such as empower the boards and commissions to regulate the taking of fish.
Ex parte Fritz, 86 Miss. 210; Payne v. Providence Gas Co., 31 R.I. 295; Commonwealth v. Sisson, 189 Miss. 247.
Has the state the right to take any more than enough to pay the actual expenses, including reasonable salaries and a reasonable overhead, to the state?
Has the state the right to make it a profit-taking enterprize, for itself and for those employed by it, although conservation be a concurrent object?
If these inquiries be answered in the affirmative, is there any limitation upon the profit-taking feature, and if so, what is that limitation?
The right of the state to take fish in the interest of propagation and conservation is limited by the necessity for conservation and propagation without regard to the profit or loss feature. The regulation of the State Game and Fish Commission with reference to this particular lake specifically states that it is for the purpose of clearing "Lake View" or South Horn Lake along with other lakes, "so far as possible and practicable of turtle, gar and other predatory species, and non-game gross fish of certain size for the purpose of conservation and propagation of both non-game and game fish in said lake." The contract entered into pursuit to the foregoing regulation so limits its contents. The profit feature arises only incidental to the main purpose and is permissible only to the extent of accomplishing conservation and propagation. In the preservation of fish for the benefit of the people the state has the power to use appropriate means to accomplish that purpose.
State v. Mallory, 73 Ark. 236; Parker v. State, 111 Ill. 581; State v. Lewis, 134 Ind. 250; State v. Meek, 112 Iowa 338; Commonwealth v. Manchester, 152 Mass. 230, 139 U.S. 240, 35 L.Ed. 159; Lawton v. Steele, 119 N.Y. 226, 152 U.S. 133, 38 L.Ed. 385; State v. Hanlon, 77 Ohio St. Rep. 19; Payne v. Providence Gas Co., 31 R.I. 295; Ex parte Fritz, 86 Miss. 210; Phelps v. Racey, 60 N.Y. 10, 19 Am. Rep. 140; State v. Snover, 42 N.J.L. 341; Williams v. Blackwell, 2 Hurlst C. 33; Smith v. Levinus, 8 N.Y. 472; Wynehamer v. People, 13 N.Y. 378; Holyoke Water Power Co. v. Lyman, 82 U.S. (15 Wall) 500, 21 L.Ed. 133; Com. v. Chapin, 5 Pick, 199, 16 Am. Dec. 386; Com. v. Essex Co., 13 Gray 247; Inland Fisheries Com'rs v. Holyoke Water Power Co., 104 Mass. 446; Hart v. Albany, 9 Wend. 590, 24 Am. Dec. 165; Thurlow v. Massachusetts, 46 U.S. (5 How.) 504, 12 L.Ed. 256; Rockwell v. Nearing, 35 N.Y. 308; Van Wormer v. Albany, 15 Wend. 263; Meeker v. Van Rensselaer, 15 Wend. 397; Lodie v. Arnold, 2 Salk 458; Am. Rapid Teleg. Co. v. Hess, 13 L.R.A. 454, 125 N.Y. 641; Newark S.O.H.C.R. Co. v. Hunt, 50 N.J.L. 308; Stockton v. Baltimore N YR. Co., 32 Fed. 9; Griffith v. McCullum, 46 Barb. 561; Harrower v. Ritson, 37 Barb. 301; Hart v. Albany, 3 Paige 216; People v. Cipperly, 37 Hun 319, 101 N.Y. 634; Hinckley v. Emmerson, 4 Cow. 351, 15 Am. Dec. 383.
The state having the right to rid fisheries of such devices as are destructive of them, it would seem to logically follow that the state has the right to rid the waters and fisheries of the state of those kinds of fish that would improve the quality of fish therein in the interest of conservation and propagation even though on private premises. This right grows out of the state's power to regulate not only the taking of fish but also its regulatory powers over waters inhabited by fish.
People v. Truckee Lumber Co., 116 Cal. 397; Commonwealth v. Sisson, 189 Mass. 247.
We do not find any authorities directly in point upon the right of the state to take more fish than to pay the actual expenses incident to the propagation and conservation project in the interest of fish as a food supply, nor do we find any authority with reference to the right of the state to make it a profit taking enterprise. However, a logical method of reasoning with reference to this question in the light of the authorities heretofore cited, it seems that the profit taking feature would be limited only by the taking of a sufficient quantity of fish to improve the fishery as a source of food supply.
Has the state or its agent in such operations the right to tie its equipment to the trees or moor to the banks or anchor to or drag the bottoms of the riparian owner without his consent or without compensation therefor first paid?
Is there any right in the state in this respect analagous to the right of navigators in the navigable waters of the state?
The right of the state to make reasonable use of trees for tying equipment, and to moor to the banks and drag the seines along the bottom of the lake over appellee's submerged land is analagous to the right of navigators in the navigable waters of the state in that a riparian owner's ownership of the land is subservient to the assertion of the paramount right of the state itself, and the incidental circumstances of the proper exercise of its governmental powers to supervise, conserve and propagate fish in the waters of the state for the public good.
All property in fish and all rights thereto are held in subjection to the exercise of the police power of the state.
People v. Wagner, 86 Mich. 594; People v. Ewer, 141 N.Y. 129; Baker v. Boston, 22 Am. Dec. 421; Commonwealth v. Kimball, 35 Am. Dec. 326; People v. Arensberg, 103 N.Y. 388.
A riparian owner is subject to the obligation to suffer the consequences of whatever is reasonably necessary in the exercise of the paramount right of the state to regulate, manage and supervise, in its governmental capacity, for the purpose of preservation, conservation and propagation of fish.
Gibson v. U.S., 166 U.S. 269, 41 L.Ed. 996; Meyer v. Richmond, 172 U.S. 96; Lane v. Harbor Commissioners, 70 Conn. 695.
Has the State Legislature sufficiently conferred upon or delegated to the State Game and Fish Commission the power and authority to conduct the seining operation in Lake View in the manner as was done in this case; and, if so, by what statutes or parts of statutes has this been done, and why is it that such statutes or parts of statutes are sufficient to authorize the State Game and Fish Commission to conduct said operation.
All power and authority which has been conferred upon the State Game and Fish Commission may be found expressly or impliedly provided for in Chapter 123 of the Laws of 1932.
From the specific provisions of the statute, there can be no doubt of the authority of the Commission to enter into a cooperative agreement so long as the agreement is for a purpose consistent with the provisions of the act. Neither can there be any doubt about the specific authority of the Commission to regulate the taking of non-game gross fish, and to prescribe the manner of taking the same. By reference to the powers conferred by the act as a whole, it is fairly clear that the intent of the Legislature was to establish such service as is necessary to carry out the provisions and purposes of the act.
Sec. 71, Const. of 1890; Lewis v. Simpson, 176 Miss. 123; Ex parte Jackson, 177 Miss. 509, 59 C.J. 1005-1006; Brogan v. Hosey, 172 Miss. 869.
We respectfully submit that the State Legislature sufficiently conferred upon and delegated to the State Game and Fish Commission the power and authority to conduct the seining operations in Lake View in the manner as was done in this case; that this power is found in Section 4 of Chapter 123 of the Laws of 1932; when considered in the light of all of the other provisions of the act.
Herbert Holmes, of Senatobia, and Frazer Clifton, of Memphis, Tenn., for appellee.
Mississippi authorities have adopted common-law rule of riparian ownership in bed of all non-navigable bodies of water as a "rule of property."
Morgan v. Reading, 3 S. M. 366; Commissioner v. Withers, 29 Miss. 1; Steamboat Magnolia v. Marshall, 39 Miss. 109; Ex parte Fritz, 86 Miss. 210; Archer v. Greenville Sand Gravel Co., 58 L.Ed. 850.
Common-law rule of private ownership in beds of non-navigable waters applies to riparian owner on lake in Mississippi.
Sims v. Richardson, 118 Miss. 728; Hardin v. Jordan, 35 L.Ed. 428; Johnson v. Elder (Ark.), 121 S.W. 1066; State v. Mallory (Ark.), 83 S.W. 955; Lamprey v. State (Minn.), 53 N.W. 1139; Cleete v. Fisher (Mich.), 31 N.W. 614; Providence v. Miller (Va.), 83 S.E. 1047; Lembeck v. Nye (Ohio), 24 N.E. 686; Cobb v. Davenport, 32 N.J.L. 369; Stoner v. Rice (Ind.), 22 N.E. 968; Kirkpatrick v. Yates, 45 Mo. App. 335.
Cases opposed to the common law rule adopted in Mississippi that a riparian owner on a lake or any other body of water above tide ebb and flow are rejected by the Mississippi court or can be differentiated and are discussed in Magnolia v. Marshall, 39 Miss. 109.
Riparian owners are entitled to the exclusive right of fishing in Horn Lake over their respective lands.
Sims v. Richardson, 118 Miss. 728; Hardin v. Jordan, 35 L.Ed. 428; Cobb v. Davenport, 32 N.J.L. 369; Morgan v. Reading, 3 S. M. 366; Steamboat Magnolia v. Marshall, 39 Miss. 109; Archer v. Greenville Sand Gravel Co., 58 L.Ed. 850.
Certainly, if a property owner of submerged lands has a right to charge for the use of the waters or has such property that she might resist a trespasser upon the water above her submerged lands, then certainly no one, not even the state, has a right to fish over the privately owned submerged lands without permission from the owner. Since it is established beyond doubt that the title of a riparian owner on a non-navigable lake extends to the center of that lake where he owns on one shore and including the whole lake bed opposite his short lines where he owns on opposite shores, then the water of a lake such as Horn Lake is privately owned.
Sec. 4705.59, Miss Code 1933 Supplement; Secs. 1166 and 4706, Miss. Code.
We do not contend that the Fritz Company owns absolutely the fish swimming in the waters of South Horn Lake over its lands.
We do contend that the state has no proprietary interest in these fish by which it can seine for them and sell them. We believe the state's title is at most a trustee.
Ex parte Fritz, 86 So. 210, 217; 26 C.J., "Fish", Secs. 42 and 43; Missouri v. Holland, 252 U.S. 416; Const. of Miss., Sec. 14, Art. 3, and Sec. 17, Art. 3; Albright v. Sussex County, etc., 71 N.J.L. 303, 59 A. 146, 69 L. R.A. 768; Const. of Miss, Sec. 90; II Farnham, Waters and Water Rights, Chap. 14; State v. Mallory (Ark.), 83 S.W. 955; Ark. Game and Fish Com. v. Storthz, 29 S.W.2d 294; Rossmiller v. State (Wis.), 89 N.W. 839; Bowles v. Kinney, State Game Supervisor, etc. (Wash.), 292 Fed. 419; Queen v. Robertson, 6 Can. Sup. Ct. 52; Venning, Inspector of Fisheries, etc. v. Steadman, 9 Can. Sup. Ct. 206.
We do not believe there can be any doubt but that the right of the Fritz Company to recover against the trespasser for the value of the fish taken from off its lands is positively recognized; and since the value of the fish taken off the Fritz Company's land is the measure of the violation of the Fritz Company's property right, then the Fritz Company is entitled to the protection of the provisions of the Constitution of the United States and of the State of Mississippi, which provides that no person or citizen may be deprived of his property without due compensation.
Ex parte Fritz, 86 Miss. 210; Missouri v. Holland, 252 U.S. 416; State v. Rossmiller (Wis.), 89 N.W. 839; State v. Mallory (Ark.), 83 S.W. 995; Coney's case, 78 Eng. Rep. 75; Bellew v. Langdon, 78 Eng. Rep. 1100; Hadesden v. Gryssel, 79 Eng. Rep. 170.
It may be the state, in its capacity of trustee of the game and fish might have a right of passage over the Fritz Company's lands, but it has no right, power or authority to exercise any property right on Fritz Company lands nor to take any profit from the same.
Child v. Greenhill, 79 Eng. Rep. 1077; Peers v. Lucy, Lilly's Entries, Vol. 2, page 448; Viners General Abridgement of English Law in Equity, published in 1743; Keeble v. Hickeringill, 103 Eng. Rep. 1127; Carrington v. Taylor, 103 Eng. Rep. 1126; Reed v. Edwards, 144 Eng. Rep. 99; Blades v. Higgs, 11 Eng. Rep. 1474; Vol. 25, Eng. and Empire Digest, page 348; 1 Chitty on Pleading (14th Am. Ed.), page 167, and Vol. 2, page 874; Cobb v. Davenport, 33 N.J.L. 223; Rexroth v. Coon, 23 A. 37; Palmer v. Dredging Co., 47 A. 125; Payne v. Sheets, 75 Vt. 335; Shulte v. Warren, 218 Ill. 108; Gratz v. McKee, 270 Fed. 713; State v. Mallory (Ark.), 83 S.W. 955; Stortz v. Ark. Game Fish Co., 29 S.W.2d 294.
We do not find any case in Mississippi which decides the question now under consideration. However, a study of the cases in Mississippi which declare the right to hunt and fish is a property right clearly demonstrates that the cases above cited are in accord with the law of Mississippi.
Morgan v. Reading, 3 S. M. 366; Magnolia v. Marshall, 39 Miss. 109; Railroad v. Frederick, 46 Miss. 1; Archer v. Sand Gravel Co., 58 L.Ed. 850, 853; 2 Farnham on Waters, Sec. 368; Hardin v. Jordan, 140 U.S. 371.
As a fishery or a right to fish is an incident and part of the soil and is not separated from it, then any violation of this right is a violation of property and any wrongful taking away of the fish from off the lands of a private owner is a removal of a part of that owner's property and a removal of a part of the incident of the soil just as completely as if the trespasser removed apples, peaches or any other growing fruit from off the trees on the owner's property. And such taking without due compensation is expressly forbidden by the constitution of Mississippi.
Rossmiller v. State (Wis.), 89 N.W. 839.
If the State Game and Fish Commission has no proprietary ownership in fish so as to deal with the fish which it took from off the Louis Fritz Company's lands as their own, then it seems clear that the state cannot sell these fish and that both the Commission and the Carrigans, as employees of the Commission, cannot appropriate and sell these fish as proprietor without violating the property rights of the Louis Fritz Company.
Even public right of access to non-navigable waters and entry thereon does not give hunting and fishing rights to a stranger or to the sovereign or its employee.
27 Harvard Law Review, pages 751-2; State v. Shannon (Ohio), 38 Am. Rep. 599; Queen v. Roberts, 6 Can. Sup. Ct. 52; Sterling v. Jackson (Mich.), 37 N.W. 845.
The Mississippi court has expressly held that the lands under streams navigable in fact are subject to private ownership. If this is true, then clearly the Louis Fritz Company on this admittedly non-navigable lake has a right to protect its property right to the exclusive fishing over its lands.
2 Farnham, Waters and Water Rights, Chapter 14.
The court asks: "Has the state the power and right, for the purposes of preservation and conservation, to put to work such a large operation as here involved and permit the entire expense thereof to be paid by taking large commercial quantities of fish, even though gross or non-game, from above the boundaries of the riparian owner, which commercial taking would otherwise belong exclusively to the riparian owner? Or to approach this question from another view, may non-game gross fish be considered predators, so that the state may lawfully destroy them, and having that right may on taking them out of the lake sell them instead of destroying them?"
The action of the Commission in the matters involved in the present case was a mere pretense at promoting the public welfare, and the Commission's actions had no real or reasonable relation to any pretended objects and such action of the Commission was in violation and in abuse of the Commission's powers. Non-game gross fish are not predators, and that they are not is expressly recognized by the Fish Commission.
It is our sincere opinion that the State Game and Fish Commission prior to this suit was never advised as to the source or extent of its property in and authority over fish. The Commission has been misled by its assumed opinion that it owned the fish of the state "in fee simple," and that it could do as it pleased with the firsh. The Commission has also been misled, we believe, by its belief that its duty was to protect or propagate so-called game fish for the benefit of sportsmen and for their pleasure and without realizing that it must act as a trustee for all of the people of the state.
Ex parte Fritz, 86 Miss. 210.
We do not believe that by an arbitrary classification edible fish can be labelled predators, so that such fish may be taken from the waters of the lake by the state and sold and the proceeds of the sale appropriated into the State Treasury. Such an act is clearly a violation of the state trusteeship, and is admittedly an act of destroying a valuable food supply which should be made more available to all of the people.
The Commission cannot exercise authority over fish under the police power if its actions are to benefit a portion of the people who want to fish for so-called game fish. The Commission cannot give to Carrigan or any other individual or assume to itself the right to appropriate part of the food supply of all the people of the state and violate the property and property rights of the Fritz Company in order that more pleasure or sport may result to a small portion of the people of the state when they angle for these so-called game fish.
State v. J.J. Newman Lbr. Co., 102 Miss. 802; State v. Armstead, 103 Miss. 790.
By the same reasoning which prohibits the state from parting with a portion of its police power to the benefit of a part or class of the whole people, the state cannot invoke the police power to propagate the game fish for the benefit of sportsmen and deprive all of the people of the state of a valuable food supply.
6 R.C.L., Constitutional Law, Sec. 194.
The police power inherent in each state does not give to the state the right to take property for public use. This right of a state to take property for public use is given to the state, but it is under the power of eminent domain, and when property is so taken the constitution of the State of Mississippi requires the state to compensate the owner therefor.
12 C.J., Constitutional Law, Sec. 413; 6 R.C.L., Constitutional Law, Sec. 197; Sec. 14, Art. III, Const. of Miss.; Sec. 17, Art. III, Const. of Miss.; 14th Amendment to the Const. of the U.S.; Ex Parte Fritz, 86 Miss. 210; 20 C.J., Sec. 6; 12 C.J., Secs. 442 and 459; Hollingsworth v. Tensas Parish, 17 Fed. 109.
The ownership of the riparian lands by the Louis Fritz Company along the shores of Lake View gave that company title to the lands under the water to the center of the lake where it owns on one side and to the entire lake bed between its opposite shore lines. In other words, by virtue of riparian ownership the Louis Fritz Company owns the lands under Lake View and by virtue of the ownership of the land under the water it has the exclusive right to fish in the water over its lands and all fish captured on its lands by a trespasser belong to the Louis Fritz Company.
Yates v. Milwaukee, 10 Wall. 497; 2 Cooley's Constitutional Limitations (8 Ed.), p. 1235.
The distinction between the power of eminent domain and police power and the limitation of the police power to the sphere in regulating private property for the public good is well recognized.
Belleville v. Turnpike Co. (Ill.), 84 N.E. 1049; Com. v. Coal Co. (Pa.), 81 A. 148.
We assert that the actions of the Game and Fish Commission in the matter involved herein were not for preservation and conservation. The regulation of the Commission and the contract pursuant thereto was nothing more or less than a commercial transaction, and with the Commission capturing property it supposedly held in trust for all the people, and thereby converting to its own use the fish which it captured on the Louis Fritz Company lands these fish became the absolute property of the Louis Fritz Company.
The court asks: "If the foregoing question is to be answered in the affirmative, has the state the right to take any more than enough to pay the actual expenses, including reasonable salaries and a reasonable overhead, to the state? Has the state the right to make it a profit-taking enterprise, for itself and for those employed by it, although conservation be a concurent object? If these inquiries be answered in the affirmative, is there any limitation upon the profit-taking feature, and if so, what is that limitation?"
We submit that this question cannot be answered in the affirmative.
We respectfully submit that the authorities in our original brief show conclusively that the fish became the absolute property of the Louis Fritz Company when taken by a trespasser and our answer to Question 1 shows the state cannot take property for its own use except under eminent domain and paying for property taken.
The state has no right to trespass on the property of the Louis Fritz Company, and seine thereon for marketable fish, for this right was vested absolutely and exclusively in the Louis Fritz Company by virtue of its ownership of the soil — ratione soli —.
The state cannot take any property of a citizen and use it except under the power of eminent domain and then such taking can be done only upon compensation being paid the owner. By the language and reasoning in Ex parte Fritz, 86 Miss. 210, the fish when captured became private property, and all right and title of the state as trustee vanished and it had none as a trespasser, and the fish were the absolute property of the Fritz Company. This being so, the state has no right to take the private property of the Louis Fritz Company to pay any expenses, or any salaries or any overhead.
The state can make no profit-taking enterprise as in this case. The absence of authority recognizing the right of the state to appropriate part of the food supply of the state to improve the quality of fish while diminishing the quantity is strong evidence of the unsoundness of the state's claim.
If we assume or hold that the state has the right to make a profit taking enterprise of its commercial seining operation, then we admit the state has an absolute title or interest in the fish taken herein, and that such interest is as proprietor. Such a conclusion is diametrically opposed to the express holding of this court in Ex parte Fritz, 86 Miss. 210.
The court asked: "Has the state or its agent in such operations the right to tie its equipment to the trees or moor to the banks or anchor to or drag the bottoms of the riparian owner without his consent or without compensation therefor first paid? Is there any right in the state in this respect analagous to the right of navigators in the navigable waters of the state?"
We respectfully submit that our answer to Question No. 1 propounded by the court also answers this question. This question assumes that the state or its agent had a right to engage in commercial fishing operations for edible fish and if this right is denied, then the question of the right of the state or its agents to tie its equipment to the trees or moor to the banks or to drag the bottom of the lake along the company's property becomes immaterial.
27 Harvard Law Review, page 751 et seq.; Queen v. Roberts, 6 Can. Sup. Ct. 52; Morgan v. Reading, 3 S. M. 366; Steamboat Magnolia v. Marshall, 39 Miss. 109.
The fact that the uncaptured fish had no owner, or at most the state had an imperfect ownership as trustee for the purpose of regulation gives the state no right to employ Carrigan in this commercial enterprise, for the state had no proprietary interest in the fish, and it had no right to be on the Louise Fritz lands in the assertion of any proprietary interest.
The court asked: "If the state has the right and power to conduct the operations in the manner and to pay therefor, as was done in this case, has the Legislature sufficiently conferred that authority upon or delegated it to the State Game and Fish Commission by or under Chapter 123, Laws 1932, or any amendments thereto; and, if so, by what particular sections or parts of sections has this been done? And why is it said that such sections or parts of sections are sufficient?"
We submit that we have conclusively shown that under the police power the Fish Commission as a state agency had no right to take the fish off the Fritz lands and use the fish for its own profit and benefit. This being true, such authority if it be expressed or implied would be void and of no effect as violative of the rights protected and guaranteed to the Fritz Company by the Constitutions of Mississippi and the United States.
There is no authority given by the Legislature to the Commission to condemn any of the fish of the state and appropriate to its own use.
Const. of Miss., Sec. 90; Albright v. Sussex County, 71 N.J.L., 303, 59 A. 146, 69 L.R.A. 768.
The court asked: "If no such authority was sufficiently delegated to or conferred upon the State Game and Fish Commission, so that the operations conducted in this case by their ostensible authority would be as individuals and not as officers, could any monetary decree be rendered against the members of the Commission or the Director of Conservation either as officers or as individuals? If so, what kind of a decree, and for what amount in this case."
We observe that this is one question propounded by the court which counsel for the state did not attempt to answer. There are some fundamentals which we feel it is well to point out here in trying to answer this question. We submit that we have shown in our original brief and in this memorandum that the captured fish belong to the Louis Fritz Company. We also submit that the State Game and Fish Commission through its agent, Raymond Carrigan, was a trespasser on the lands of the Louis Fritz Company in its seining operations.
We further submit that the State Game and Fish Commission violated its trust and its duty to the people of the state when it appropriated the private property of the Louis Fritz Company and sold edible fish, which it was its duty to preserve for the benefit of all the people.
Article 17 of Section III of the Constitution of Mississippi forbids the taking of private property without due compensation being made therefor.
Keeping the foregoing principles in mind and recognizing the constitutional prohibition against the state's right to appropriate private property without compensation, then we submit that the constitutional provision referred to would be meaningless and the prohibition futile if a court should hold that an agency of the state could exceed its statutory authority and appropriate private property for the use of the state and simply because the statutory authority had been exceeded then there could be no recovery by the individual whose property was taken. It is stipulated in this case that the property which was taken was appropriated by the state and converted into the State Game and Fish Commission fund, and we respectfully submit that there exists in the courts of the State of Mississippi the power to compel the state to restore to the private owner the property which the state has converted to its own use or to pay the value therefor if the property has been consumed in use by the state.
Stortz v. Ark. Game and Fish Com., 29 S.W.2d 294; Secs. 4702-5, and 5997, Code of 1930; Chap. 221, Acts of 1936; Sec. 22, Chap. 123, Acts of 1932.
We call to the court's attention that it is stipulated in the record that the fish taken by the State Game and Fish Commission were of the market value of $2196.50. The record reflects that the last fish were taken from Lake-view about January 1, 1938. We respectfully submit that the Louis Fritz Company is entitled to have a judgment for the stipulated value of the fish with interest from January 1, 1938.
In cases of conversion where there is neither fraud, oppression, or willful wrong, the measure of damages is the value of the property at the time of conversion and interest thereon.
Black v. Robinson, 61 Miss. 54, 59; Robinson v. Goings, 63 Miss. 500; Hines v. Imperial Naval Stores Co., 58 So. 650; 38 Cyc. 2089, par. 4; 65 C.J., Trover Conversion, Sec. 282; Bone v. Griffin, 22 So. 187; Fernwood Lumber Co. v. Rowley, 71 So. 3; Dougherty v. Chestnutt, 86 Tenn. 1; Holt v. Hayes, 110 Tenn. 42.
There is no proof in this record as to what the expenses of operation were in this case and for this additional reason the Louis Fritz Company is entitled to recover the stipulated market value of its fish with interest thereon.
Argued orally by W.W. Pierce, for appellant, and by C.E. Clifton, for appellee.
South Horn Lake is an inland, fresh-water, non-tidal natural lake in DeSoto county, crescent shaped, about five miles long, of the average width of about four or five hundred yards, and of varying depths, from shallow water to that which is as much as thirty feet deep. It is fed by small streams at its eastern end, and from the western end there is an outlet or pass into the Mississippi River, this pass being about twenty to forty feet wide and from four to ten feet deep. Through this pass small rowboats may navigate at all seasons of the year, and fish may migrate from the lake to the river or from the river to the lake. In this lake there are gar and other species of predatory fish, and turtles. There are also numerous species of gross and non-game fish, as well as many of the classes denominated as game fish. Appellee is the owner of more than nine-tenths of the lake's shore line and submerged lands, but there are also five other riparian owners, including the Horn Lake Outing Club.
On July 7, 1937, the State Game and Fish Commission adopted an order, called in its minutes a regulation, by which it resolved to make contracts for the clearing of this lake, and other lakes, "so far as possible and practicable of turtle, gar and other predatory species, and non-game gross fish of certain size, for the purpose of conserving and propagating both non-game and game fish in said lakes," these contracts to provide that the contractors should be paid for their work by allowing them not to exceed 77 1/2 per cent of all non-game gross fish taken from the lakes in the progress of the work, the remainder of 22 1/2 per cent to be retained by the Commission.
In pursuance of this order the Commission made a cooperative contract on October 22, 1937, with the Carrigan Company, by which the contractor agreed, "to clear said lake so far as possible and practicable of all turtle, gar, etc," and as compensation the Commission agreed to pay the contractor 77 1/2 per cent of all non-game gross fish taken from the lake in performance of the contract, all the work to be done under the direct supervision of the game warden.
Under this contract the Carrigan Company entered upon the lake about November 24, 1937, and operated until about December 31, 1937, during which time there were taken and sold about 20,000 pounds of non-game gross fish, including buffalo, carp, drum and spoon-bill, the value of which, as received in the market, was $2196.50. The Carrigan Company gained access to the lake by a lease or license from the Horn Lake Outing Club, a riparian owner as aforementioned; and the equipment used was a barge, to which there was attached a long and wide apron, which by means of hinges could be let down into the water so that one end would rest upon the bottom of the lake. This barge was tied to the trees along the banks, and the other boating equipment was also from time to time moored to the banks or tied to the trees. Long seines were used, and these were pulled by outboard motor boats. The seines were dragged upon or close to the bottom of the lake, and would be so managed as to pull the seines, in closing them, upon the barge apron or platform, and there the haul would be separated, so that the turtle and gar taken from the seines would be destroyed, the game fish, and the smaller non-game fish would be returned to the water, but all the others would be retained and sold in the market, with the profitable result above stated. There is no evidence that there were any additional or supplementary operations. It may be added that during the operations the entire course thereof was adjacent to the uplands and over the submerged lands of appellee, it appearing that the most favorable locations were selected; and all the work was done over the protests of appellee.
On December 23, 1937, the appellee exhibited its bill of complaint in the court below against Raymond Carrigan, praying that he be enjoined "from seining said (South Horn) lake, or fishing therein, removing fish therefrom, or in any way trespassing upon the waters of the complainant in the aforesaid lake and the submerged lands thereof." Carrigan answered the bill, admitting the seining of the lake, but averred that he had the right so to do under the contract of the Carrigan Company, of which firm he was a member, with the State Game and Fish Commission. A temporary injunction against Carrigan was granted, and leave was given to the Game and Fish Commission, and Si Corley, director thereof, to intervene, and become parties defendant to the bill of complaint. An answer was then filed by the State Game and Fish Commission, Si Corley, its director, and the State of Mississippi, on relation of Greek L. Rice, Attorney-General, in which Chapter 123, Laws of 1932, is invoked as authority for what was here done by the State Game and Fish Commission. The appellee, by leave of court, then amended its bill by making the Game and Fish Commission of the State of Mississippi, and W.E. McIntyre, Ben M. Stevens, Reuben R. Banks, Edgar W. Wright, George C. Withers, members of and composing said Game and Fish Commission, and Si Corley, Director of Conservation of said Game and Fish Commission, parties defendant thereto, and praying for an injunction against the added defendants, and for damages, actual and punitive, against the original and added defendants.
On final hearing (1) the Carrigan injunctive was made perpetual; (2) a judgment for $2000, attorneys' fees, and $500 punitive damages, was rendered against the Carrigan Company; (3) the value of the fish taken by the Carrigans from the lake was adjudged to be $2,196.50, which the members of the Game and Fish Commission were directed to pay to the appellee; and (4) "the State Game and Fish Commission of Mississippi, and W.E. McIntyre, Ben M. Stevens, Reuben R. Banks, Edgar W. Wright, and George C. Withers, members of and composing the said State Game and Fish Commission, and Si Corley, Director of Conservation of the State of Mississippi, and the State of Mississippi, and they and each of them jointly and severally, their agents or employes are hereby perpetually enjoined and restrained from seining or fishing in South Horn Lake or Lake View in DeSoto County, Mississippi, in the waters thereof, over the lands of the complainant, the Louis Fritz Company, or in any way trespassing upon the waters of the complainant and the submerged lands of the complainant in said Lake."
The appeal is by the State Game and Fish Commission only; consequently the decree will not be reviewed or disturbed in so far as it affects Carrigan Company.
The decree of the court below in so far as it directs the State Game and Fish Commission, or its members, to pay appellee the sum of $2196.50, the value of the fish here taken from the lake, will be reversed; and the bill of complaint in so far as it seeks a recovery therefor will be dismissed. In this all of the members of the Court concur, but are not agreed on the reasons therefor.
The members of the Court are equally divided as to whether the decree should also be reversed in so far as it awards an injunction against the State Game and Fish Commission; consequently the decree to that extent will remain in full force and effect.
So ordered.
The initial contention of appellee that it owns the soil or bed of the lake opposite its riparian lands and to the center or middle of the lake is well taken, and is established as correct by Richardson v. Sims, 118 Miss. 728, 80 So. 4. It owns the minerals thereunder, Archer v. Levee Com'rs, 158 Miss. 57, 130 So. 55; Archer v. Greenville Sand Gravel Co., 233 U.S. 60, 34 S.Ct. 567, 58 L.Ed. 850, and by the same reason anything which becomes in the process of nature permanently attached thereto. Wineman v. Withers, 143 Miss. 537, 108 So. 708.
But appellee, as riparian owner and as owner of the bed of the lake opposite its riparian lands, is not the owner of the water resting for the time being upon its submerged lands or lake bed. 27 R.C.L., pp. 1070, 1071. In its ordinary or natural state, water is neither land, nor tenement, nor susceptible of absolute ownership. It is a movable, wandering thing and admits only of a transient, usufructuary property. 67 C.J., p. 675. The Magnolia v. Marshall, 39 Miss. 109, 124. The riparian owner may not say that he has any sole ownership in that part of the water which rests upon his lake bed, for the unity of a lake is preserved not only by all parts of its entire bottom but also by all its banks, as to which other riparian owners contribute an essential part to the maintenance of the whole; so that without the entire presence of the entire boundaries of the banks there would be no lake at all.
And appellee as riparian owner does not own any of the fish in the lake. This was settled in Ex parte Louis Fritz, 86 Miss. 210, 38 So. 722, 723, 109 Am. St. Rep. 700, wherein it was said "fish are ferae naturae. They are incapable, until actually taken, of absolute ownership, except in artificial lakes or in small ponds that are entirely land locked." And the Court said that since the fish in such a lake are not the subject of private ownership until reduced to actual possession, their ownership in the meantime so far as capable of ownership is in the state, not as proprietor, but in its sovereign capacity, as the representative, and for the benefit, of all its people in common.
Inasmuch as there is no private ownership in the water or in the fish it follows that where, as here, there are several riparian owners of an inland lake, each owner, their licensees, and every other inhabitant who can gain access thereto without trespass, may use the surface of the whole lake for boating and fishing so far and so long as they do not interfere with the reasonable like use by others similarly entitled to that right. 26 C.J., pp. 599, 603; Beach v. Hayner, 207 Mich. 93, 173 N.W. 487, 5 A.L.R. 1052; Percy Summer Club v. Astle, 1 Cir., 163 F. 1. The foregoing statement of the rule is supported not only by reason and by respectable authority on the point, but is in accordance with what has been the generally observed custom and rule of conduct among the people in this state for time out of mind — an acquired custom or usage which is within the limits of the further reasons which we shall later point out.
What has been said in the foregoing paragraph has reference to the rule in this state, and to the immemorial usages, customs, and practices of our people, as regards boating and fishing in the usual and ordinary modes and manners for sport, pleasure and recreation; and the rule will include the right in those named to boat and fish for commercial purposes so long as conducted in a small way by the use of boats not too large to be freely capable of being propelled by oars, even though not so propelled, and when the fishing is done solely by the traditional and ancient means of the pole and line, or the rod and reel, or with small nets and the like which do not disturb the bottom, or the upland, or anything permanently belonging to the upland or the bottom.
By the uses aforesaid there is no appreciable burden placed upon the bottoms of the riparian owner; there is no interference with his free access to and from his riparian lands; there is no presence of the noise and clamor of workmen; no disturbance of his bottoms or his banks; and if a small boat should occasionally drop its insignificant anchor or the hook or line should sometimes reach the bottom, this would be a trifle too small for the law to notice — de minimis non curat lex.
But a different question is presented when the fishing is for commercial purposes on a comparatively large scale, and by the use of the means and implements beyond those heretofore herein mentioned — keeping in mind all the while that we are here concerned with non-tidal waters only. As to such waters and as to those larger operations therein for commercial purposes, there are apparent reasons why, and the fact is that, there has been no such immemorial, uniform and general state-wide customs and usages in this state as would work a modification of the ancient common law as inherited by us from the mother country; and thus the rule in regard to the right of commercial fishery, when conducted on the larger scale as mentioned in this paragraph, is that of the ancestral common law, which is, that this right belongs exclusively to the riparian owner and is co-extensive with the boundaries of his soil under the bed of the lake, this right to be exercised at the same time in such manner as not unreasonably to interfere with or exclude those who are mentioned in previous paragraphs herein. Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 35 L.Ed. 428, 435; Notes 3 Ann. Cas., p. 860; 3 Kent's Commentaries (13th Ed.), p. 579, original Sec. 418, and see the cases collected in Gratz v. McKee, 8 Cir., 270 F. 713, at page 718, 23 A.L.R., 1393.
All the foregoing rights are subject, however, to the superior authority of the State in its governmental capacity to regulate the time, manner and the extent to which the fish may be taken. And, as said in Ex parte Louis Fritz, supra: "It is not only the right of the state, but also its duty, to preserve for the benefit of the general public the fish in its waters, in their migrations and in their breeding places, from destruction or undue reduction in numbers through the caprice, improvidence, or greed of the riparian proprietors as well as of trespassers." And the Court said that the State may not only regulate and restrict the taking, but may absolutely prohibit it, if deemed necessary for the preservation of the fish or for the public good. But this must be for real reason, and not as purely arbitrary action.
Thus it follows that the State has the power, under adequate statutory enactment, as well as the reasonable duty, to take all necessary or proper steps for the extermination of all species of predatory fish, and having that power may avail of any and every reasonable means or agency for the accomplishment of that purpose, so long as the state maintains control and supervision of the means and agencies put at work. 11 R.C.L., p. 1041, and cases cited under note 20. But inasmuch as the State does not own the fish as proprietor or absolute owner (Ex parte Louis Fritz, supra), it has no right to take the fish and sell them solely, and for no other purpose than, as a proprietary business of the state; nor may it conduct its conservation or preservation operations in such manner or to such an extent as unreasonably or unnecessarily to intrude upon or invade the stated right of fishery of the riparian owner.
And inasmuch as the State has the dominant right of regulation, preservation, and conservation aforementioned, it would have the right in the pursuit of reasonable and proper means to that end and as an incident thereof to gain access to the waters by ingress over the lands of a riparian owner, and temporarily to tie or moor its equipment to the banks, or to the trees there standing or standing in the water, so long as no substantial injury is thereby done to the property of the riparian owner, or could anchor the equipment to the bottoms of the lake or allow any part of its equipment to rest upon the bottoms, so long as all this is temporarily done, and only to the extent and for the sufficient time necessary for the proper performance of the work.
As to the common law, as stated in the foregoing paragraphs, it is my understanding that the majority of the members of the Court are in substantial agreement, and are agreed also that the legislature by a sufficiently explicit enactment may exercise the powers mentioned. The difference of opinion has arisen over what the legislature has done, rather than upon what it may do. In my judgment everything done herein, by the State Game and Fish Commission, and by its contractor acting under it, insofar as anything to the contrary is disclosed by the present record, was fully authorized by Chapter 123, Laws 1932, and that the decree should be reversed not only, but that the bill should be dismissed.
McGehee, J., concurs in the foregoing opinion, and as to the common law McGowen and Anderson, JJ., also concur; but as regards the statute, Chapter 123, Laws 1932, and its effect, McGowen and Anderson, JJ., concur in the opinion of Smith, C.J.
I am of the opinion that the court below was correct in holding that Chapter 123, Laws 1932, does not confer on the State Game and Fish Commission authority to remove gross non-game fish from lakes and streams. No section of the statute expressly confers such authority, and no such authority can be inferred from any section when construed either separately, in connection with others, or with the purpose for the accomplishment of which the statute was enacted. We have no occasion, therefore, to determined what authority, in this connection, the State through its legislature could have constitutionally granted the State Game and Fish Commission, nor have we any occasion to hold that Commission or its members accountable for unlawful acts committed by it, if any, except in so far as injury was thereby inflicted on the appellee. There being no governing statute, what rights of the appellee, if any, that here were invaded by the appellant must be determined by the common law.
The appellee owns that portion of the bed of the lake to the center thereof, lying opposite the shore of the lake owned by it, and where it owns the shore on opposite sides of the land, it owns the entire intervening bed of the lake. This is well established by former decisions of this Court. It does not own the water above its land nor the fish that may be therein. "Fish are ferae naturae. They are incapable, until actually taken, of absolute ownership, except in artificial lakes or in small ponds that are entirely land locked. . . . It is held with practical unanimity in all jurisdictions that animals ferae naturae are not the subject of private ownership until reduced to actual possession; that the ownership of such animals, so far as they are capable of ownership, is in the state, not as proprietor, but in its sovereign capacity, as the representative and for the benefit of all its people in common." Ex parte Louis Fritz, 86 Miss. 210, 38 So. 722, 723, 109 Am. St. Rep. 700; State v. Buckingham, 93 Miss. 846, 47 So. 501; State v. Hill, 98 Miss. 142, 53 So. 411, 31 L.R.A. (N.S.) 490. It follows from this, and was so held in State v. Buckingham, supra, that all of the people have an equal right to take and appropriate fish in their wild state. This right is necessarily affected and qualified by the fact that, in taking fish, one must not trespass on the land of another.
The Carrigans, employees of the appellee, obtained access to the lake over the land of a riparian owner with his consent. Did that fact give them the right to take fish from that part of the like which was over the appellee's submerged land?
The existence of this lake is made possible by the fact that its waters are supported and confined by the land belonging to the several riparian owners. Without this support and confinement of its waters, there would be no lake for any riparian owner to fish in. While there is authority to the contrary, there is respectable authority, with which I concur, holding that each of several riparian owners, is licensees, and members of the general public who can gain access thereto without committing a trespass in so doing, may use the entire surface of the lake for fishing so far as he does not interfere with a similar reasonable use thereof by others, except such fishing as requires the use of the shore or bottom of the lake, the right to which is in the owner of the shore or bottom. 22 Am. Jur., Fish Fisheries, Sec. 21; 26 C.J. 599; Beach v. Hayner, 207 Mich. 93, 173 N.W. 487, 5 A.L.R. 1052.
The Carrigan Company being licensed by a riparian owner so to do committed no trespass in gaining access to the lake; consequently it had the right to take and appropriate fish therefrom but did not have the right to make use of the appellee's portion of the shore and submerged land of the lake in so doing.
It follows from the foregoing views that I concur in holding that the judgment against the State Game and Fish Commission for the value of the fish taken by Carrigan Company, its employee, should be reversed and the bill dismissed in so far as it prays therefor, but that the injunction granted should be modified and limited to restraining the State Game and Fish Commission, its members, and employees from using appellee's portion of the shore and submerged land of the lake for fishing purposes.
It may be that the legislature has not authorized the Fish and Game Commission to be sued; but, as to that, I express no opinion as we have no occasion to consider it.
I am of the opinion that the judgment of the court below should be reversed and the bill dismissed, because in my opinion what was done in this case was authorized by law; and that Louis Fritz Company, complainants in the court below, appellees here, had no right in the fish captured and sold under the arrangement made by the State Game and Fish Commission, in its effort to protect the game fish in South Horn Lake, or Lake View, in waters over the land of the complainant, Louis Fritz Company.
Chapter 123, Laws of 1932, is quite comprehensive, and it would be difficult to set forth the many provisions bearing upon the controversy here involved. A careful reading of the whole act, I think, shows power to do all that was done. Under its police power the state and its agents may go upon any stream or lake to exercise such powers. The riparian owner takes his title subject to this easement of the state. The state can exercise its trust in behalf of all people in no other way. The right of the riparian owner is subject to an easement of the state to assert its power to use the channel in the exercise of its own rights. Steamer Magnolia v. Marshall, 39 Miss. 109; Richardson v. Sims, 118 Miss. 728, 80 So. 4.
In section 4 of the act the Commission is given power to make rules and regulations, to inaugurate studies and surveys, and to "establish such services as they may deem necessary to carry out the provisions and purposes of this Act, and any violation of any of the provisions of this Act or of any rules or regulations promulgated by the Commission shall constitute a misdemeanor."
It is further given authority:
"(a) To close or shorten the open season as prescribed by law in cases of urgent emergency on any species of gamebirds, game or fur-bearing animals, or fish, in any specified locality or localities, when it shall find after investigation and public hearing, that such action is reasonably necessary to secure the perpetuation of any species of game birds, game or fur-bearing animals, or fish and the maintenance of an adequate supply thereof. The statutes governing such subjects shall continue in full force and effect, except as further restricted and limited by the rules and regulations promulgated by the Commission.
"(b) To designate, with the consent of the owner or owners, such localities as it shall find necessary to secure perpetuation of any species of game bird, fur animal, or fish and the maintenance of an adequate supply thereof, as game, bird, fur animal, or fish refugees for the purpose of providing safe retreats in which game, birds, fur animals, or fish may rest and replenish adjacent hunting, trapping or fishing grounds or waters.
. . . . . .
"(e) To capture, propagate, transport, sell or exchange any species of game birds, game or fur-bearing animals, or fish needed for stocking or restocking any lands or waters of the State.
"(f) To enter into cooperative agreements with persons, firms, or corporations or governmental agencies for purposes consistent with the purpose of this act.
. . . . . .
"(i) To have exclusive charge and control of the propagation and distribution of wild birds, animals and fish; the conduct and control of hatcheries, biological stations and game and fur farms owned or hereafter acquired by the State; to expend for the protection, propagation or preservation of game birds, game or fur bearing animals and fish all funds of the State acquired for this purpose arising from licenses, gifts, or otherwise and shall have charge of the enforcement of all the provisions of this Act.
. . . . . .
"(k) To regulate the taking of non-game gross fish, and prescribe the manner of taking same."
It is provided that this section shall not apply to or affect any contract theretofore entered into by any board of supervisors of any county for the taking of non-game gross fish. The Commission is also given authority to cooperate with the several departments and officers in the conduct of matters in which the interests of the respective departments or officials overlap.
In section 8 of the act the Commission is given power to dispose of contraband animals, birds and fish. In section 11 the State Director is given power to appoint wardens with the approval of the Commission. By section 16 it is provided that the Director of Conservation shall have general supervision and control of all wardens, and under the supervision of the Commission, "shall enforce all the provisions of the laws and regulations of the State relating to wild animals, birds and fish, and shall exercise all necessary powers incident thereto not specifically concerned on the Commission."
It is also provided in the section that the State Director of Conservation and each of the wardens "shall have power, and it shall be the duty of said Director and of each of such warden to execute all warrants and search warrants for a violation of the laws and regulations relating to wild animals, birds and fish; to serve subpoenas issued for the examination and investigation or trial of offenses against any of the provisions of such law or regulations; to make search where such warden has cause to believe and does believe that animals, birds or fish, or any parts thereof, or the nest or eggs of birds, or spawn of eggs of fish are possessed in violation of law or regulation, and in such case to examine, without warrant, the contents of any boat, car, automobile, or other vehicle, box, locker basket, creel, crate, game bag, or other package, to ascertain whether any of the provisions of this Act or any law or regulation for the protection of animals, birds or fish have been or are being violated," etc.
By section 22 of the act a State Game and Fish Fund is created, and required to be paid into the State Game and Fish Protection Fund, to be used by the Commission and the State Director of Conservation, for the purpose of carrying out the provisions of this act, etc.
By section 27 of the act the game animals, birds and fish are named, and closed and open seasons are provided for, stating the time when birds, animals or fish may be lawfully taken; and hunting and fishing licenses are provided for in the act.
Under section 61, it is unlawful to kill or take fish of the bass family under eight inches in length, or of the sunfish family under four inches in length.
By section 62 it is made the duty of every person to return to the water any game fish taken out of reason, or those caught under legal size, by means of nets, seines or other contrivances used for the taking of fish not classified as game fish.
By section 63 it is provided that it shall be unlawful for any person to sell, offer for sale or exchange any game fish enumerated in the act, whether taken within, or coming from without the state. Providing, however, that the Commission may issue a permit to the owner of a private pond to sell fish grown or cultivated by such owner under such regulations as the Commission may deem wise.
By section 64 it is provided that a non-resident fishing license shall be issued to non-residents of the state upon application in the same manner and by the same authorities mentioned for issuance of hunting licenses, upon payment of a named fee. These and many other provisions of the act vest large power and discretion in the authorities.
There are many other provisions of the act which do not apply to fish, and are unnecessary to set forth in this case. It will be seen from the provisions set forth that it was the purpose of the legislature to vest in the Game and Fish Commission, and the officers named, comprehensive powers for the regulation and protection, propagation and conservatism, of fish and game, for the benefit of all the inhabitants of the state.
The act here involved is the contract by the Game and Fish authorities named therein, with certain persons to destroy predatory fish and water animals, such as turtles, etc., so as to preserve the edible fish for the benefit of the public. The contract gave the parties contracted with the right to sell certain non-game gross fish, and in my judgment they were authorized to do so.
Under the terms of section 4, among other powers they are authorized to establish such services as they may deem necessary to carry out the provisions of the act. The service here established under the contract comes clearly within the granting power. If fish are to be conserved, preserved and propagated as a food supply for the inhabitants of the state, such fish and animals as prey upon and destroy them must be gotten rid of, and the service in so doing comes clearly within the act. The Commission generally has power to regulate and provide conditions under which it may act, and for the carrying out of the service provided for the taking of certain gross non-game fish in seines and nets, and these may be given as compensation to the parties undertaking to destroy predatory fish, animals, etc.
There could be no dispute about the power of the Commission to destroy these predatory animals, and for that purpose to expend part of the game and fish fund. Consequently, incident to securing the services contracted for, the Game and Fish Commission may give as part or the entire compensation for the work of taking them, such non-game gross fish, prescribing the manner of taking them, as set forth in clause (k) of section 4 of the act.
In Ex parte Fritz, 86 Miss. 210, 38 So. 722, 723, 109 Am. St. Rep. 700, it was held that fish, being ferae naturae, were not the property of any person until subjected to his control; that until so reduced to possession by some person the title thereto is in the state. In the course of the opinion the Court said: "It is proper to state, however, in passing, that, conceding all the claims, it is not shown that he owns or has acquired the right to fish in the entire lake. It is perfectly clear that he does not own the fish in Horn Lake, and this would be true even if he owned the bed of the entire lake and all its waters. Fish are ferae naturae. They are incapable, until actually taken, of absolute ownership, except in artificial lakes or in small ponds that are entirely land locked. In all running streams, large lakes, small lakes with outlets into other waters, the right of the state to regulate the time, the manner, and extent of the taking of fish is unquestioned. It is part of the police powers of the state, which has never been parted with, and cannot be surrendered. By reason of the migratory habits of fish, their ownership is in the public, and no individual has any absolute property right in them until they have been objected to his control. It is not only the right of the state, but also its duty, to preserve for the benefit of the general public the fish in its waters, in their migrations and in their breeding places, from destruction or undue reduction in numbers through the caprice, improvidence, or greed of the riparian proprietors as well as of trespassers."
It will be seen from this case that until reduced to actual possession, all property rights in fish exist in the state for the benefit of the whole people. In the latter case of State v. Buckingham, 93 Miss. 846, 47 So. 501, 502, in the opinion rendered by Judge Calhoon it is declared: "It is now settled that the sovereignty is the owner of wild game, on the idea that animals, birds, and fishes, wild by nature, may be preserved as a food supply for all the inhabitants. It is settled that the sovereignty may have closed seasons, in which the destruction of all [wild fish and game] may be actually forbidden, and it may delegate this power to the several boards of supervisors of the various counties."
In the case last referred to the statute expressly permitted landowners to hunt upon their own lands in season, not prohibited, and may permit non-resident relatives or friends to hunt with them.
Again, in State v. Jim Hill, 98 Miss. 142, 53 So. 411, 31 L.R.A. (N.S.) 490, it was held that the state is the owner of all wild game, such as animals, birds and fish, within its borders; and that section 2305 of the Code of 1906 conferred on the board of supervisors full jurisdiction and authority to protect and preserve all game and fish in their respective counties, and to conserve the same for the use and consumption of the inhabitants, and that the word "inhabitants" applied to the inhabitants of the entire state. In that case it was held that the action of the board of supervisors under section 2305, Code 1906, limiting the taking of fish in the streams of the county to the inhabitants of the county, violated section 2 of the Fourteenth Amendment to the Constitution of the United States, U.S.C.A.
In the case of Keel et al. v. Harrison County Supervisors, 126 Miss. 195, 88 So. 625, it was held that under the Code of 1906, section 2304, section 4699 of Hemingway's Code, conferring upon the boards of supervisors full authority for the protection and preservation of fresh-water fish in their respective counties, such boards may prohibit the use of nets and seines, etc., for the catching of fish in any of the waters of their respective counties, although such waters may be inhabited by sea fish as well as by fresh-water fish. In the Court's opinion in that case, at page 201 of 126 Miss., at page 625 of 88 So., it is said: "It is true that under section 2304, Code of 1906, section 4699, Hemingway's Code, the jurisdiction given boards of supervisors over fish in their respective counties includes only fresh-water fish; nevertheless they are given by the following section of the Code full `authority for the protection and preservation of game and fish in their respective counties,' which, ex vi termini, includes the power to do whatever is necessary for their protection and preservation." This decision follows the well-known rule of constitutional and statutory construction that whenever a power is given, either by constitution or by statute, there is given with it, by necessary implication, the right and power to exercise such powers as are necessary to the carrying out of the power expressly granted.
Another interesting case upon the subject here involved is Barataria Canning Co. v. Jos. Ott et al., 84 Miss. 737, 37 So. 121, where it was held that under the Revised Code of 1880, section 956, granting boards of supervisors of the counties bordering on the Gulf of Mexico jurisdiction in the matter of the protection and preservation of oysters growing and being grown within the limits of their respective counties and with power to grant private rights of property in oysters banked, planted or cultivated in the waters of the county, is constitutional, and a private right to bank, plant and cultivate oysters in the waters of the sea, within the limits of the county, acquired from the board of supervisors under said statute, is valid. It was also held in this case that in the absence of an express statute the owners of land bounded by the sea possess no exclusive right to the soil under the water beyond high water mark, and they have no greater right than others of fishing and gathering oysters from natural beds in front of their property
This case is peculiarly interesting because of the fact that without the statute referred to all of the inhabitants had equal rights in regard to bedding, fishing, gathering and canning oysters in the waters of the sound; but the state had a right to confer upon particular persons for a specified period of time, exclusive authority to exercise such right and use.
There is some difference, of course, in the rights of owners whose property abuts on the tide waters, and those on streams which do not abut on such tide waters. But the case is interesting from the fact that it was held to be within the power of the legislature to grant to particular persons or concerns exclusive right to such waters. The rights of all the inhabitants of the state are equal as regards the fish and game of the state. Fish and game, as well as the waters which they usually inhabit, are migratory — moving from one place to another; and the owner of the land owns neither the water which flows past, nor the fish therein, nor the migratory birds which go upon his land, until he has actually taken possession of them.
It was argued at the bar that a person going upon the land of another without his consent is a trespasser, and that any game or fish taken by a trespasser becomes the property of the owner of the land whereon they were taken. This is not correct, for the reason that every person has an equal right to take game and fish; and while a trespasser can be punished for trespassing, he is not deprived of the possession of his game which he has taken, unless the law, by competent statute, provides that they should be forfeited as a penalty for trespassing, or as accompanying the trespass.
A negro may be a trespasser upon the land of his landlord, in which case the landlord can prosecute him; but his rabbit or other game may not be taken from him, because when he took possession of it, it was not the property of the landlord.
By clause (e) of section 4, set out above, the Game Commission has authority "To capture, propagate, transport, sell or exchange any species of game birds, game or fur-bearing animals, or fish needed for stocking or restocking any lands or waters of the State."
By a provision of clause (a) of section 4, set out above, it is provided that "The statutes governing such subjects shall continue in full force and effect, except as further restricted and limited by the rules and regulations promulgated by the Commission."
Therefore, construing the provisions of this act, in the light of previously existing laws, the proprietary interest of the state remains, and its powers of supervision thereof were validly delegated to the Commission, and the other officers provided for in chapter 123, Laws of 1932.
Under clause (i) of said section 4 of said chapter the Commission has exclusive charge and control of the propagation and distribution of wild birds, animals and fish; the conduct and control of hatcheries, biological stations and game and fur farms owned or hereafter acquired by the state; to expend for the protection, propagation or preservation of game birds, game or fur-bearing animals and fish all funds of the state acquired for this purpose arising from licenses, gifts, or otherwise and shall have charge of the enforcement of all the provisions of the act.
By clause (f) the state has the power to enter into cooperative agreements with persons, firms or corporations or governmental agencies for purposes consistent with the purpose of this act. The agreement here involved is such an agreement as is embraced in and contemplated by this clause of section 4. The state being the owner of such title as exists in animals, birds or fish within the state, and being charged with the duty of capturing, propagating, selling or exchanging any species, it has, as a consequence, the right to make all contracts appropriate or necessary to carrying out the granted power. The very fact of acting to conserve and propagate carries with it the power to protect the fish, birds and animals by any appropriate means. This is a part of the police power of the state, which it was said, in Ex parte Fritz, could not be surrendered by the state; the power to govern such matters in the interest of the people. In the exercise of its police powers the state may go upon any lands, to gain access to streams and places where such game birds, animals or fish exist, in order to see that they are not destroyed either by persons or by predatory fish, birds or animals. Owners of riparian lands have only such rights as are consistent with the free and full exercise of the powers of the state; otherwise, how could the state, or its agents, preserve the game animals, birds or fish?
The common law of England does not prevail in this state in such matters. In the case of cattle running at large it was held that the law of England, requiring the owner of cattle to confine them to his own lands, did not prevail here, because not applicable to our conditions; and that consequently the cattle which strayed upon the lands of another were not trespassing. It has been the custom from the beginning in this state, so long that the memory of man runneth not to the contrary, that a person may go upon the wild lands of another, unless such lands be posted in the manner prescribed by law, or unless expressly notified and warned not to do so. It required a statute to change the law with regard to cattle; but the law with reference to hunting and fishing, even as to individuals, has not been changed, except as provided in the chapter above discussed.
The state itself is the owner of running water within its borders, and of the fish therein until they are captured; and of the game animals and birds, until they are reduced to possession; and incident to this ownership is the right to inspect, police and protect it. The rights of land owners in respect to these matters is limited — they cannot exercise unlimited ownership either above or below the surface of the land. How could supervision or transportation be carried on if the parties authorized to perform these acts were subject to prosecution for trespass? It is important here to stress this police power connected with the state's ownership of the fish and game of the state in trust for the people of the state. Taking the statute as a whole, with the common law as it exists in this state, as declared in the above decisions, it seems clear that the state has a right to make it possession and ownership of fish and game absolute, and to prohibit the taking by private persons at all. Such seems to be within the legislative power; and it seems to me this is expressly held to be within the power of the government in the case of Barataria Canning Co. v. Ott, 84 Miss. 737, 37 So. 121, supra.
I am therefore convinced that the judgment of the court below was erroneous, and that it should be reversed, and judgment rendered here dismissing the bill.