212 Wis. 421 | Wis. | 1933
The following opinion was filed June 29, 1933 :
Certain incidental questions which will be referred to in the disposition of this matter were dealt with in Merwin v. Houghton, 146 Wis. 398, 131 N. W.
“All provisions of subsection (4) of section 29.57 shall be applicable to such refuge and in addition no person shall take or catch any fish or spawn or fish for fish within the boundaries of such refuge; provided, however, that any person licensed to operate a muskrat farm in this area shall not be denied any of his rights pertaining to the operating of such farm and the catching and killing of muskrats.”
The defendant was brought to trial in the circuit court upon an information charging him with a violation of ch. 484 (sec. 29.572, Stats.) in that he did unlawfully take, catch, and kill fish and, by the use of a seine, fish for fish in and upon the lands described in said act. To this information the defendant pleaded not guilty. The facts were stipulated, and upon the facts so stipulated the court found the defendant guilty, but being of the opinion that important questions of law were raised under the provisions of sec. 358.08, reported the case with the following questions:
“Question number one: Is chapter 484, Laws of 1931, constitutional ?”
“Question number two : Were the acts committed by the defendant a violation of said act?”
By the stipulation the defendant admitted that on the day alleged in the information he did take, catch, and kill fish and, by the use of a seine, fish for fish upon the land described in said act as charged in the information. By the
The stipulation further recites the fact with reference to the acquirement of title to the lands owned by Farms, Inc.; that the lands owned by Farms, Inc., are now wholly disconnected from outside waters; that the waters lying within the boundaries of the lands owned by Farms, Inc., have not been stocked with fish by the state of Wisconsin or any of its agencies; that the fish and fur operations of the company are carried on on the lower two-thirds portion of its land, which portion is now on the average, by reason of the company.dam and wells, kept from a third to a half submerged, and wherein and whereon muskrat farming is carried on and fish are stored and propagated, while the upper third portion of the lands is used by the company for ordinary farming operations, including the raising of cattle and domestic animals.
It was further stipulated that that portion of the wild life refuge owned by Farms, Inc., “has contained and now contains large numbers of the following wild birds and animals, both game and predatory: prairie chicken, partridge, pheasants, quail, duck, owls, hawks, crows, rabbits, coon, squirrels, mink, skunk, weasel, gophers, fox, kingfisher, etc., said area being a natural habitat and feeding grounds for
From the cases referred to and the stipulation of facts, it appears that Farms, Inc., maintains a breeding place for fish which has no connection with any navigable waters in this state and located wholly within the lands owned by it in fee simple; that as part of its business, Farms, Inc., purchased certain fish for the purpose of propagation, and that the defendant, at the time of his arrest, was engaged in taking such fish from waters situated upon the lands of Farms, Inc., for the purpose of marketing and disposing of them in the ordinary course of its business.
We shall first consider whether what the defendant did as the president and employee of Farms, Inc., constituted a violation of the provisions of ch. 484, for, if it did not, then no question arises as to the constitutionality of that act. It would seem to require no argument upon the facts stated to show that if it is possible for a person or corporation to have title to fish, that Farms, Inc., had title to the fish in question. It is well established that the title to all wild animals within its borders is held by the state in its capacity as sovereign for the benefit of the people of the state. Krenz v. Nichols, 197 Wis. 394, 222 N. W. 300; La Coste
By the Court. — Question number one not answered. Question number two — Were the acts committed by the defendant a violation of said act? Answer: No.
A motion for a rehearing was denied, without costs, on September 12, 1933.