113 Va. 80 | Va. | 1912
delivered the opinion of the court.
The Triple Island Gunning Club filed its bill in the Circuit Court of Princess Anne county, in which it states that it is a corporation organized under the laws of the State of Virginia, and, in pursuance of the power granted, it acquired title to Half Moon Island, situated in the waters of Back Bay, within the county of Princess Anne; that this island is chiefly marsh land and land covered by water, and valuable only for fishing and shooting; that Meredith, Fearing, and Whitehurst, who are afterwards named as-defendants, had purchased a parcel of land containing 10-1089 of an acre, for which a grant from the Commonwealth appears to have-been issued by the Governor of the Commonwealth to George W. Whitehurst; that it consists only of a few stakes driven into the bed of the bay, connected by boards and filled in with earth and other, material, thereby making an artificial island, distant between two and three hundred yards from complainant's property; that the purpose of the defendants in constructing this artificial island is to shoot ducks and other game therefrom, all of which is in violation of the statute laws of-the State, and will result in, great injury to complainant; that, owing to the location of the island, directly in the channel, and almost equi-distant between complainant's island and certain other islands used for shooting and hunting purposes, known as Dudley's Island and Horse Island, it will be in a position to intercept the files of ducks and other game as they fly over the waters of the said bay; that these acts constitute a trespass, nuisance, or ouster, as the case may be, involving oppressive.litigation and a multiplicity of suits on the part of complainant in order to protect its rights; and that, if respondents are allowed to continue the construction of the said island, it will result in ruining the value of complainant’s property for the
The defendants filed their demurrer and answer, in which they deny that the property owned by them is an artificial island, or that they or their predecessors formed, or attempted to form, an island at said place, or that it is an obstruction to navigation, or that it is within the legal bounds of complainant’s land, or that It is land covered entirely by water, or that the public has a right to pass and re-pass over the same; but they admit that the waters •of Back Bay are navigable and /surround the property of complainant. They claim that the property granted to them is a natural island, and was not formed by boards and stakes and by filling in with earth or other materials between said boards, as alleged by complainant. Respondents admit that it is their purpose to shoot ducks and other game from their island, but they deny that shooting therefrom is in violation of the laws of this State, and that shooting therefrom will injure complainant, or its property. They say that, under the laws of the State of Virginia, the waters of Back Bay are open to all persons for hunting and •shooting purposes, except in certain ways, and that the excepted ways in which shooting is forbidden are punishable as a crime, .and equity has no jurisdiction to enjoin the commission of such .acts. They deny that complainant has any exclusive right of hunting in the waters of Back Bay adjacent to or surrounding the property owned by complainant, but claim that the same is open to all the people of the Commonwealth, and even if respondents did disturb complainant or its members, in shooting from its own land over the w-aters of Back Bay, by preventing ducks from coming into said waters at said point, that would not have injured •complainant, or its members, in any rights which they had, except .as individual citizens of the State. .They deny that they have done any act constituting a trespass, nuisance, or ouster of or to ■the complainant, or were the cause of litigation or a multiplicity of suits, and they deny that any act of theirs will result in ruining the value of complainant’s property, either for hunting or fishing-purposes.
Upon the issues thus made evidence was taken, and a decree was entered by the circuit court perpetually enjoining the defendants,
Counsel for appellee, in their brief, state “that no evidence concerning the title to the property was introduced, other than that showing the island’s non-existence. * * * The complainant in the court below confined itself to proving the sole and single fact that Duck Island is an artificial structure, and the respondents to disproving that fact. ’ ’ All questions of title, therefore, are eliminated.
On the part of appellee it is claimed that the parcel of occupied by the appellants is an artificiaJMolijid, erected and maintained in violation of law, and that while a court of equity has no criminal jurisdiction, and cannot interfere to prevent the commission of criminal or illegal acts, yet that the act complained of constitutes a criminal offense does not defeat the jurisdiction of a court of equity, if it also constitutes an invasion of rights of property of a pecuniary nature; but that when there is such interference, and there is no adequate remedy at law, the criminality of the act will not divest the jurisdiction of equity to prevent it. Citing 16 Am. & Eng. Enc., p. 363; Attorney-General v. Utica, 2 Johns. Chy. 370.
In Beveridge v. Lacey, 3 Rand. (24 Va.) 63, it was said by Judge Cabell: “It is not the province of a court of equity to correct abuses merely public. It interferes on the ground of private injury only. ’ ’
The principle, however, is well settled, and does not need authorities to support it.
Section 2070-a of the Code of Virginia, and the private acts governing hunting in the several counties, including the act in force in the county of Princess Anne (Acts 1901-’2, p. 107), are designed to regulate and control the killing and capture of game of all sorts for the benefit, not of any individual, but for the good of all of the citizens of the Commonwealth; and it is declared by section 1338 that “ all the beds of the bays, rivers, creeks, and the shores of the sea within the jurisdiction of this Commonwealth, and not conveyed by special grant or compact according to law, shall continue and
' The right of fowling in these waters being common to all of the citizens of the Commonwealth, and those rights being protected by laws which denounce the offenses and prescribe penalties, for their violation, it is certain-that those facts alone do not confer upon a court of equity jurisdiction to prevent their violation by injunction. The only inquiry, therefore, which it is necessary make is to ascertain whether or nor the acts of appellants violate any of appellee’s rights of property.
The Triple Island Gunning Club was organized and acquired the property which it holds for fishing and hunting thereon, and it alleges that the acts of appellants done and threatened upon the blind or artificial island which “they have constructed will result in great injury to complainant, because, owing to the location of the said island directly in the channel way, almost equi-distant between complainant’s island and other islands used for hunting and shooting purposes, the artificial island of appellants will be in a position to intercept the files of ducks and other game as they fly over the waters of said bay. The appellee leaves out of view the fact that appellants have rights equal to its own with respect to the waters of Back Bay for the purpose of fishing and fowling; that the Virginia statutes for the protection of game in force with respect to those waters were not intended for its peculiar behoof and benefit, but for that of all the citizens of the Commonwealth. then, appellants, in the exercise of their rights of shooting game kupon the waters of Back Bay, not with a malicious motive, but (in the enjoyment of a privilege common to them with all other citi/zens, by the firing of guns, frighten or intercept the files of ducks or other game as they fly over the waters of the bay, and prevent '^heir coming within range of the premises of the Triple Island Gunning Club, it is damnum absque injuria.
This question was long ago examined by Lord Chief Justice
Justices Powys and Gould said: “A man may lawfully shoot in his own ground, as to kill venison, but not to destroy maliciously the property of another.”
In the case before us we have neither charge nor proof that the acts complained of were done maliciously. On the contrary, it appears that they were done in an honest belief by appellants that they were doing what they had a right to do as citizens of the Commonwealth, and, on the authority of the case just quoted, their conduct was not actionable.
To show that there has been such an invasion of its rights as a court of equity will enjoin, appellee relies upon certain Minnesota cases, among them Lambrey v. Danz, 86 Minn. 317, 90 N. W. 578. There it appeared that the United States surveyed, selected, and by its patent conveyed to the State of Minnesota, as swamp and overflowed land, the real estate in controversy, without meandering any of the waters thereon; that the plaintiff had acquired the title of the State thereto, and that in fact the land was covered by the waters of a lake, which it was impossible to use for the purpose of travel or commerce, or for pleasure other than hunting. It was held “ that such acts of the United States are conclusive as to the character and title of such land, and that the plaintiff is the absolute owner thereof, and that the public have no right to fowl on the waters thereon.” It is further said that “the facts found by the trial court justify its conclusion of law, to the effect that the
It is hardly necessary to point out the broad line of distinction between that case and the one under judgment. It was there held that the plaintiff was the absolute owner of the land, and that the public had no right to fowl on the waters thereon, while with us just the contrary appears.
In Realty Company v. Johnson, 92 Minn. 363, 100 N. W. 94, 104 Am. St. Rep. 677, 66 L. R. A. 439, the action was brought to enjoin the appellant from shooting wild fowl in their passage over and across a highway on respondent’s premises. It was held that ‘' the owner of the soil has exclusive dominion over it, and the exclusive privilege of hunting, including the unqualified right to control and protect the wild game thereon; that in granting an easement across his premises for the purpose of a public highway, the owner does not surrender to the public his right to foster and protect wild game on the land, and the public does not acquire any right to pursue and kill the same while it is temporarily passing to and fro across the highway.”
In Whittaker v. Stangvick, 100 Minn. 386, 111 N. W. 295, 117 Am. St. Rep. 703, 10 L. R. A. (N. S.) 921, the plaintiff and appellant sought perpetually to enjoin defendants and respondents from constructing covers or blinds on the surface of a lake in front of a strip of land to which plaintiff claimed ownership, separating two navigable lakes, and from shooting across or over the strip of land. The court entered judgment for the defendants, and this appeal was taken from the order denying a motion for a new trial. The essential question was whether the decision was justified by the evidence and was consistent with law. The court found the following facts: “ The plaintiff owned the long, narrow strip, and accretions, extending to a creek connecting the waters of the lakes, which formed what is known as a 'duck pass. ’ Although there was a public highway over the duck .pass, by virtue of an agreement with the supervisors of the township, the plaintiff had the right of fishing and hunting thereon, to the same extent as though the road had. not been laid out. The defendants and other persons, wrongfully, had previously gone on plaintiff’s land at the highway, and shot ducks and water
“ The first question is, whether the facts found show a trespass. Defendants urge that the falling of the shot and of ducks on plaintiff’s land, not having been shown to become a nuisance to her, certainly could not be sufficient to constitute a trespass on the part of the defendants. The old maxim that the law does not concern itself with trifles might well be invoked here. This contention involves a misapprehension of the law of trespass.
“The mere fact that damage from falling shot or birds would be insignificant, as has been shown, has no logical bearing at all upon the question. The record, besides, conclusively shows substantial damage to the premises. At common law, trespass on the case would have lain. The inherent danger to land-owners from guns in the hands of hunters, often irresponsible and reckless, and sometimes malicious, must be adequately guarded against, if the law is to be more than a name. As the hazard from the use, or threatened use, of dangerous instrumentalities increases, in all branches of the law, the responsibility of the person employing them becomes stricter, and may amount to insurance of safety. All remedial resources of law and equity may be exercised to prevent such peril to person or property, or conduct likely also to result in breach of peace.
“The second question is, whether or not an injunction will lie under the circumstances. It is elementary that equity will grant that relief to prevent a threatened trespass, especially where there can be no adequate pecuniary compensation, because it would be difficult or impossible to ascertain the damage resulting from such an act, and where otherwise a multiplicity of suits cannot be prevented. * * * There has been a material modification in such cases of the requirements that the injury should be irreparable and the legal remedy inadequate. The tendency of American authorities is to extend the application of the remedy, ”
In that case the injunction was issued upon the ground that the facts showed that the defendant shot over the plaintiff’s land, which constituted a trespass.
Appellee relies also upon section 2368 of the Code, which provides that “The Commonwealth or any other party desiring to repeal, in whole or in part, any grant of land, because it was obtained by fraud or issued contrary to law, or to the prejudice of such party’s equitable right, may file a bill in equity for that purpose in the circuit court of the county or the circuit or corporation court of the corporation in which the land, or some part thereof, lies, exhibiting with the bill a certified copy of the patent, and mailing all the proper parties.”
Argument is hardly necessary to show that the case of appellee does not come within the purview of this statute. Nowhere in the record does it appear that the appellee has any equitable right in the grant from the Commonwealth of the land in question to George W. Whitehurst on the 15th of February, 1909, and we take it that no private citizen could maintain a suit in equity, or otherwise, to set aside that grant, unless he could show that he had some right therein, which was prejudiced by the grant.
Upon the whole case, we are of opinion that appellee has failed to show any such interference with its rights on the part of appellants as entitles it to the protection of a court of equity; that if the acts complained of constitute a nuisance, it has only suffered with the general public; and that if the acts complained of violate the criminal law, those guilty should be proceeded against and punished in the mode which the criminal law prescribes.
It follows that the decree of the circuit court must be reversed and the bill dismissed, with costs to the appellants.
Reversed.