187 S.W.2d 545 | Ark. | 1945
Appellees, commercial fishermen, obtained in the lower court decree enjoining appellants from interfering with appellees in pursuing their fishing operations in Portia Bay, in Lawrence county, Arkansas. Appellants ask us to reverse this decree.
Portia Bay is a body of water about one hundred twenty-five yards wide and three and a half miles in length. It lies in the form of an almost complete circle, and several small creeks empty into it. It has an outlet, through which water runs practically all the year, by way of a small creek, into Black River.
Appellants, who are brothers, own the east half of section 28, and a strip of land one chain wide off the east side of the east half of the west half of section 28, in township 17 north, range 1 west, in Lawrence county. The greater part of Portia Bay is situated within said section 28. In the government survey Portia Bay was not meandered and the lines of the sub-divisions were run across the stream. Appellants, under their deed, have title to the bed of that part of Portia Bay that is contained within their land lines.
Appellants urge that the evidence adduced in the lower court shows that Portia Bay is not a navigable stream, and that they, being the owners of a part of the bed of the stream, have a right to control that part of the surface of the water of said stream that lies above the bed of the stream owned by them. With both these contentions we agree. Without reviewing the evidence, we deem it sufficient to say that the proof in this case *683 clearly establishes that Portia Bay is not a navigable stream either from a technical or practical standpoint. Appellants have title to the bed of part of this stream, and they undoubtedly have the ownership and control of that part of the surface of the bay that lies above the portion of the bed of the stream that is owned by them.
We think the rule laid down by the Supreme Court of Pennsylvania, in the case of Smoulter v. Boyd,
But, since the waters of Portia Bay do not lie entirely on lands owned by appellants and are connected with Black River by a running stream, through which fish may migrate in either direction, appellants have no ownership of the fish in this stream. *684
In the case of Fritz v. State,
Appellants have not constructed any boom or fence, marking their boundary lines on the surface of Portia Bay, so that the waters here involved are uninclosed.
In the case of Barboro v. Boyle,
We do not have here the question of a trespass upon cultivated, though uninclosed fields, and, since appellants do not have ownership of the fish in Portia Bay *685 and since the portion of the surface of this water belonging to appellants was not inclosed, it follows that appellees, and the public have a right to fish there in a lawful manner, as long as these waters remain so uninclosed. The decree of the chancellor was, for that reason, correct, and it is affirmed.