This is аn appeal by defendants from a superior court order permanently enjoining them from “hunting, shooting, trapping, or entering upon” plaintiffs’ marshlands beyond the normal low water line of Charcoal Creek. We modify the order and affirm it as modified.
The material faсts in this case are undisputed. Plaintiffs and their immediate predecessors in title have owned a tract of marshland of approximately 360 acres near West Swanton, Vermont since 1933. Charcoal Creek borders the western portion of their marsh. The creek, sо-called, is actually an inlet from Lake Champlain. At its source, the creek connects through a narrow opening to the lake. It ultimately arrives at a dead end in a wooded area.
Although the level of Charcoal Creek is subject to periodic fluсtuations, the parties agree it has a definite low water line along plaintiffs’ marsh at 93.055 feet above mean sea level. At this low water line the marsh owners have since 1949 posted signs proclaiming: “No Hunting, Shooting, or Trapping.”
*209 On October 3, 1979, the water level was 95.36 feеt above sea level. Thus, it rose well above the low water line and covered a portion of plaintiffs’ land beyond the signs. An area of the marsh designated Jake Nokes Slough was inundated at that time. During drier seasons this slough was soft mud and bog and was separated frоm Charcoal Creek by a ridge of land.
Defendants entered Jake Nokes Slough from Lake Champlain by way of Charcoal Creek in a sixteen-foot flat bottom boat on October 3, 1979. They were aware of the plaintiffs’ signs and of having passed beyond the signs, as they hаd done previously. Intending to hunt ducks, defendants stopped their boat in a weed bed two hundred yards to the inland side of the signs. The bottom of the boat rested in the mud at a point where the water was approximately five or six inches deep.
A police officеr told the defendants they were hunting on private posted land. When they announced their intent to continue hunting there, the officer cited them for criminal trespass and poaching. Based on these facts, plaintiffs then sought and received the injunction which is the subject of this appeal.
As a definite low water line exists along Charcoal Creek, plaintiffs’ ownership extends to that line.
State
v.
Cain,
Essentially, defendants and amicus curiae, the Vermont Agency of Environmental Conservation, argue that the public has a navigational easement across the waters overlying plaintiffs’ land between the ordinary low and high water lines, and that this еasement permits recreational uses as well. Among the recreational uses the public enjoys as of right, according to defendants and amicus curiae, are hunting and fowling.
Marshland adjoining Charcoal Creek has been the locus in quo of trespass actions between landowners and hunters since before the turn of thе century. Hunters and marsh owners have pressed their respective claims of right with remarkable persistence.
In the late 1890’s, W.G. Payne, an earlier landowner along this same creek, commenced a trespass action against Watson Gould,
*210
a hunter.
1
Eventually, in
Payne
v.
Gould,
Subsequent landowners, including the immediate predecessor in title of plaintiffs Cabot, sought court sanction of their destruction of a hunting guide’s duck blinds which they alleged were situated in their marsh. Although the case came before this Court on a collateral matter, the primary focus of the underlying dispute was the western boundary of the privately owned marshland along Charcoal Creek. See
Cabot
v.
Hemingway,
As was earlier intimated, recent duck hunters have been more inventive: they assеrt a public right of recreational use, including hunting, on the waters of Lake Champlain and its inlet creeks all the way to the normal high water line without regard to the ownership of the underlying land. This appeal is the second time the present defendants have presеnted us with such an argument. Their appeal of conditional guilty pleas in the criminal case growing out of this same incident involved an improper vehicle for presenting their claims.
State
v.
Thomas,
The questions raised in this case and in prior Charcoal Creek controversies lie at the crosscurrents of two important concerns: the individual’s desire for private enjoyment of privately owned land and the public’s wish for sporting access to the forests, fields, and waterways of this state. These are concerns that have long beеn in conflict.
*211 In the colonial period, residents of the New Hampshire grants (what was later to be Vermont) were well aware of the history of abuses that had occurred in England under authority of fish and game laws:
They were then smarting under the oppression and inequalities of the English system under which individual development among the common people was impeded and often prevented, and the rights and enjoyments of the many were subjected to the pleasure of a favored few. Among the instrumentalities used to bring about this undesirable condition of life, were the iniquitous fish and game laws of England, enacted by the ruling class for their own enjoyment, and which led to a system under which the catching of a fish or the killing of a rabbit was deemed of more consequence than the happiness, liberty or life of а human being.
New England Trout & Salmon Club
v.
Mather,
One response to the sometimes conflicting concerns of the individual and the larger group of society was Chapter II, Section 39 of the Vermont Constitution of 1777. Now found at Chapter II, Section 67, this provision guarantees to the public the “liberty,” subject tо legislative regulation, to hunt and fish in certain places:
The inhabitants of this State shall have liberty in seasonable times, to hunt and fowl on the lands they hold, and on other lands not enclosed, and in like manner to fish in all boatable and other waters (not private proрerty) under proper regulations, to be made and provided by the General Assembly.
Section 67 is an accommodation of competing goals. It offers a general delineation of not only the respective rights of landowners and sportsmen but also the authority of government to regulate those rights in the context of hunting and fishing.
Understanding Section 67 requires a knowledge of the common law which it altered. English law, as we received it, treated hunting on privately owned land as a personal privilege of the landowner. Seе, e.g.,
Sterling
v.
Jackson,
Waterways overlying private property were not in every instance entirely private, however. Tidal waters could not be privately owned. See
Mather, supra,
This public right of passage did not initially include a right to fish or hunt on nontidal waterways. The right of fishery was personal to the owner of the underlying land. See 1 R. Clark, Waters and Water Rights 182 (1967). Also рersonal to the landowner was the right to hunt and fowl on those overlying waters. See, e.g.,
Schulte
v.
Warren,
Chapter II, Section 67 extended rights to citizens which the common law had not recognized. Cf.
Payne
v.
Sheets, supra,
In New England Trout & Salmon Club v. Mather, supra, this Court, focusing on the right to fish, reasoned that the constitutional provision at issue does more than just recognize a right to fish in boatable waters under appropriate legislative regulаtion; it also:
affords the test by which to determine over what waters the State has jurisdiction de jure, thus, “and in like manner to fish in all boatable and other waters (not private property) under proper regulations to be hereafter made and provided by the General Assembly.” Thus was jurisdiction expressly reserved to the State over boatable waters and waters not private property. . . . Hence, unless the waters in question are boatable, they are not public, but private, and the State has no jurisdiction over them.
*213
Mather, supra,
Mather’s reasоning in the context of fishing applies equally to Section 67’s hunting provision. By virtue of Section 67, the State has authority to permit and regulate public hunting on private property, but only when that land is not enclosed.
If landowners fail to take adequate measures to enclose their lands, then individuals who hunt there without first seeking permission would not normally be trespassers.
Payne
v.
Gould, supra,
Defendants correctly state that most states now interpret their common law to extend the navigational easement to include most water-related recreational activities, including hunting from boats. 1 Clark, supra, at 198-99. As noted previously, this was not always so. Moreover, those states do not have provisions like Chapter II, Section 67 of the Vermont Constitution to limit the evolution of their common law.
Nothing in Section 67 suggests that its framers intended that boatability would be the standard for hunting either from boats or while standing in water. Indeed, since the provision uses a single standard for “hunting and fowling,” applying a separate standard for hunting watеrfowl would comport neither with common logic nor with normal use of language. Accordingly, we conclude that the appropriate inquiry in the present case is whether the *214 private lands were enclosed. 2 Such a disparate treatment of hunters and fishers is rational since hunting is normally more dаngerous to and intrusive of the landowner’s interests.
The lower court found that plaintiffs posted their lands in compliance with 10 V.S.A. § 5201. Defendants do not dispute that the boundary along Charcoal Creek was sufficiently marked to be enclosed according to the terms of Chapter II, Section 67. In view of defendants’ stated intent to continue hunting in plaintiffs’ marsh, the superior court did not err when it “enjoined [defendants] from hunting, shooting, [or] trapping . . . upon the lands of the [p]laintiffs . . . .”
The court did not stop there, however. It also enjoined “entering upon the lands of [p]laintiffs, by boat or otherwise, at any point behind their boundary line or as marked by [plaintiffs’ posters . . . .” We cannot find support in the court’s findings for such a broad injunction. This portion of the court’s order plainly implicates the boatability aspects of the сommon law’s navigational easement and Section 67’s guarantee to those who fish. The sole basis for this part of the superior court’s injunction appears to be the nonboatability of the water at that point where defendants’ boat was resting in the mud on October 3, 1979. Water level on a single day will not normally support a finding of boatability or nonboatability for a body of water subject to seasonal fluctuations. See
Mather, supra,
We accordingly affirm the superior court’s injunction order as it pertains to hunting, shooting, or trapping, and we strike that portion of the order which prohibits entering by boat upon the waters overlying plaintiffs’ land.
Affirmed as modified.