193 So. 9 | Miss. | 1940
Lead Opinion
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. *560
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 *561 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. *562 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 *563 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.
Addendum
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,
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,
And appellee as riparian owner does not own any of the fish in the lake. This was settled in Ex parte Louis Fritz,
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,
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 *565 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,
All the foregoing rights are subject, however, to the superior authority of the State in its governmental capacity *566 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 *567 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.
Addendum
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 *568 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,
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? *569
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,
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. *570
Addendum
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,
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 *571 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.
"(f) To enter into cooperative agreements with persons, firms, or corporations or governmental agencies for purposes consistent with the purpose of this act.
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. *573
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 *574 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,
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,
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,
In the case of Keel et al. v. Harrison County Supervisors,
Another interesting case upon the subject here involved is Barataria Canning Co. v. Jos. Ott et al.,
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 *578 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 *579 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, *580 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 *581
of the government in the case of Barataria Canning Co. v. Ott,
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.