3 Conn. Cir. Ct. 413 | Conn. App. Ct. | 1965
The accused was found guilty, after a trial to the court, of violation of the Westport hunting ordinance, which provides as follows: “No firearm shall be discharged within five hundred (500) feet of any building in the hunting district.”
By Special Act No. 254 in 1933, the General Assembly empowered the town of Westport to “prescribe, lay out, alter or extend the boundaries of a district within the limits of said town within which hunting and trapping shall be prohibited.” In addition, the town was empowered to, “within the limits of said district, regulate, limit or prohibit hunting and trapping either in whole or in part.” Pursuant thereto, the town of Westport enacted a hunting ordinance establishing the entire town as a hunting district and further provided that “[n]o firearm shall be discharged within five hundred (500) feet of any building in the hunting district.”
In addition to the hunting ordinance, hunting and trapping is also regulated, throughout the state, by the state board of fisheries and game. This agency, pursuant to the authority vested in it under General Statutes § 26-66, has adopted rules and regulations;
The only question before us is whether the defendant was in violation of the hunting ordinance of Westport when he discharged a firearm in hunting waterfowl in tidal waters of this state under a license duly issued by the Connecticut board of fisheries and game. It is the contention of the state that the ordinance not only is effective within the territorial, unsubmerged, limits of the town of Westport but includes, as well, the Saugatuck River, where the defendant was hunting at the time of his arrest, and extends southerly to a line between Seymour Point and Cedar Point, both in Westport and marking the extremities of the east and west shores of the Saugatuck River at its confluence with Long Island Sound. This, if true, would make the Saugatuck River, north of the southerly line between the two mentioned points, a part of the town of Westport.
The defendant maintains, in effect, that the special act, under the authority of which the town ordinance was passed, conferred no power on the town to regulate or prohibit hunting on tidal waters over which the state, as parens patriae, holds a possessory right, subject to the right of navigation, in trust for the benefit of the people of Connecticut.
In its finding of facts, the court concluded that the Saugatuck River was within the limits of the town of Westport and hence the ordinance against hunting was applicable and the defendant was guilty as charged. The motion to correct, by striking this finding as being without evidential support, was denied. This ruling is assigned as error, and in our opinion the determination of this question is dis-positive of the appeal before us.
It appears conceded that the Saugatuck River is a navigable waterway in which the tide ebbs and flows. It is an estuary of Long Island Sound and an arm of the sea. Rowe v. Smith, 48 Conn. 444, 447; Church v. Meeker, 34 Conn. 421, 424; Middletown v. Sage, 8 Conn. 221, 222; East-Haven v. Hemingway, 7 Conn. 186, 198. “The state, representing the public, owns the land between the high- and low-water marks of . . . [this river], and that land and the waters of the . . . [river] are public. See Rowe v. Smith, 48 Conn. 444, 446; Rochester v. Barney, 117 Conn. 462, 468 . . . ; State v. Knowles-Lombard Co., 122 Conn. 263, 265 . . . .” Delinks v. McGowan, 148 Conn. 614, 617. It is settled in Connecticut that the public has the right to boat, hunt and fish on the navigable waters of the state, subject only to the paramount right of navigation and to the lawfully acquired privileges or franchises of littoral or riparian owners, such as wharfing out, erecting piers and reclamation, in the exercise, principally, of the
A municipality, however, being a creature of the state and deriving its governmental powers from the sovereign, cannot prohibit what the state permits. There is nothing in Special Act No. 254 (1933) which confers upon the town of Westport the power to regulate or prohibit the hunting of waterfowl in the tidal waters of Saugatuck River. Under chapter 490 of the General Statutes, and more particularly under part IV thereof, the state has preempted the field of regulating and encouraging the hunting of wildlife on public and private lands and waters (§26-65) and has delegated to the state board of fisheries and game the duty of regulating hunting ■within this state. We do not go so far as to say that this duty could not be conferred by the legislature on the town of Westport within the limits of said town, as the special act expressly provides. There is nothing in this act, however, that extends the authority of the town over navigable waters adjacent to it, and insofar as the hunting ordinance of West-port attempts so to extend that authority it is in conflict with the pertinent statutes of Connecticut and must yield to them. See Shelton v. City of Shelton, 111 Conn. 433, 437-39, 447; Bredice v. Norwalk, 152 Conn. 287, 292. Although the state intimates in its argument that the town of Westport has a proprietary interest (as distinguished from a jurisdic
There is error, the judgment is set aside and the case is remanded with direction to render judgment that the defendant is not guilty and ordering that he be discharged.
In this opinion Dearington and Jacobs, Js., concurred.