Lead Opinion
The General Assembly of the State enacted a statute, approved April 24, 1903, entitled “An act to protect the game and fish of the State, and provide for the appointment of game wardens,” and the prosecution in this case is based on the fourth section of that act, as follows:
“Section 4. It shall be unlawful for any person who is a nonresident of the State of Arkansas to shoot, hunt, fish or trap at any season of the year.” ■ Acts 1903, c. 162, § 4.
In other sections of the act the open and closed seasons for killing certain kinds of game are declared, and penalties for violations thereof are prescribed; the exportation of game or fish out of the. State is prohibited, and penalties therefor prescribed ; and the sheriffs of the State are made game wardens for their respective counties, with power to make arrests and prosecute offenders against the statute.
The appellee, Mallory, was tried upon the charge of hunting in the State, being a nonresident at the time, and from a finding of not guilty by the court and judgment discharging him the State has appealed.
The case was tried below7 before the court sitting as a jury, by consent of parties, and upon the following agreed statement of facts:
“x. The defendant, Mallory, is a native of the State of Virginia, and a bona fide resident and citizen of the city of Memphis-, and the State of Tennessee.
“2. That he is the owner in fee of a large body of land in the County of Crittenden, State of Arkansas, by successive deeds, the title thereto originating by a grant from the State, on which he has continuously carried on planting and farming operations for many years prior to this date; and in the prosecution of his said farming operations he has had occasion to make frequent visits to said land.
“3. That on said tract of land there is á pond, or non-meandered lake, surrounded entirely by the land of the defendant, without outlet or inlet except at times of overflow; in which body of water fish are to be found and may be taken therefrom by ordinary methods.
“4. That on said tract of land squirrels and other game are to be found.
“5. That for many years the defendant has been in the habit of hunting for game on said lands and taking fish from said waters, both by himself and those who had his permission so to do; and that the right to kill said game and to take such fish is valuable, and adds to the value of the lands.
“6. That on the 18th day of June, 1903, the defendant engaged in hunting on said lands for squirrels.
“7. That on the 18th day of June, 1903, the defendant engaged in fishing in the said waters above described, and took therefrom by means of hook and line fish found therein.”
It is contended here, on the part of the State, that the wild game and fish in this State are its absolute property, and that it may lawfully prohibit the taking of game and fish by all nonresidents, and that the act in question is a valid prohibition against nonresidents owning lands in the State hunting or fishing thereon.
The appellee insists, on the other hand, among other things, that his right to take game and fish while on his own lands is a valuable property right which inheres by reason of his ownership of the soil, and, being so, this act is an unjust discrimination against him as a property owner of the State, in violation of that portion of the Fourteenth Amendment to the Constitution of the United States, as follows:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.”
The proper solution of these questions involves an inquiry as to the ownership of game, a consideration of the nature of the property therein, whether exclusive and absolute or qualified, and the extent of the authority which the State has a lawful right to exercise in relation thereto.
It can be stated without question that, primarily, the title to game and fish are and have for all time been in the sovereign, but the nature and extent of that title and the purposes for which it is held are not altogether free from doubt. Originally, the title seems to have been regarded as vested in the sovereign as a personal prerogative, but as civilization advanced it grew to be differently regarded, not as a personal right of kings, but as a portion of the common property of subjects. It is said that by the Roman law animals ferae naturae were classified as common property, which, having no owner, were considered as belonging to all the citizens of the State; yet the right of an owner of land to forbid another from killing- game on his property was recognized as a part of the rights of ownership of the land. Inst. Just., book 2, part 1.
The ownership of such animals seems to have been assumed by British sovereigns up to and including King John I, as a personal prerogative of the crown until Magna Charta and the Charter of the Forest, by which the assertion and exercise of those rights were distinctly limited. Since then the ownership of wild animals, so far as vested in the sovereign, has been uniformly regarded as a trust for the benefit of. the people, and we think that clearly, in effect, the title and ownership of the sovereign has been held to be only for the purpose of protection, control and regulation. Mr. Justice White, speaking for the court, in Geer v. Connecting,
“The practice of the government of England from the earliest time to the present has put into execution the authority to control and regulate the taking of game. Undoubtedly, this attribute of government to control the taking of animals ferae naturae, which was thus recognized and enforced by the common law of England, was vested in the colonial governments, where not denied by their charters, or in conflict with grants of the royal prerogative.”
But nowhere do we find in modern times that the absolute and unqualified ownership of such animals by government has been asserted and exercised further than for the purpose of controlling and regulating the taking of the same. On the other hand, we find frequent denial of the right of government to do more.
In Bristow v. Cormican, 24 Moak, 431, it was decided that the crown has no de jure right to the soil or fisheries of an inland nontidal lake, and that a general grant by the crown of a right of fishing in a nontidal lake is not, without more, sufficient to establish the title thereto.
In Venning v. Steadman, 9 Canada Sup. Ct. R. 210, the right of riparian owners of land on a nonnavigable river to fish for salmon was involved, in the face of a statute providing that “fishing for salmon in the Dominion of Canada, except under authority of leases or licenses from the Department of Marine Fisheries, is hereby prohibited,” and it was there held that the prohibition of this statute did not extend to such riparian owners. In the State of Wisconsin a statute was passed prohibiting the cutting of ice from aiiy meandered lake for shipment out of the State, except by those permitted to do so by a license issued by the Secretary of State, and the Supreme Court, in the case of Rossmiller v. State,
We assume, therefore, as firmly established by authority, that the State’s ownership of fish and game is not such a proprietary interest as will authorize a sale thereof, or the granting of special interests therein, or license to enjoy, but is solely for the. purposes of regulation and preservation for the common use, and is not inconsistent with a claim of individual or special ownership by the owner of the soil, if it be found that there can be any such individual or special ownership. We next inquire whether the owner of lands in the State has any title to or property rights in the fish or game thereon?
By the common law of England the owner of land had no absolute property in animals ferae naturae, while at liberty in the wild state, but had a qualified interest or property in such as ■were found, so long as they remained on his territory, and when killed or captured thereon they became his absolute property. Blackstone’s treatment of this subject is not 'altogether clear, though he seems to have considered the complete ownership of game, in the strictest proprietary sense, to have been in the crown as a personal prerogative, even since Magna Charta. Yet he recognized the right or privilege of one to take game or fish on his own premises without restraint as a substantial and valuable one. 2 Blackst. Com. 418, 419.
Mr. Christian in his learned notes combats, with the approval of Mr. Justice Coleridge, the doctrine apparently laid down by Blackstone to the effect that the sole right to take game rests primarily with the king, and maintains that at common law every person, ratione soli, had a right to take game on his own land. 2 Blackst. Com., p. 418, note 8.
In Blades v. Higgs, 11 House of Lords Cases, p. 621, Lord Westbury says: “Property ratione soli is the common law right which every owner of land has to kill and take all such animals ferae naturae as may from time to time be found on his land, and as soon as this right is exercised the animal so killed or caught becomes the absolute property of the owner of the soil.” And Lord Cransworth in the same case said: “Wild animals, while living, though they are, according to Lord Plolt, the property of the owner of the soil on which they are living, are not his personal property, so as to be the subject of larceny. They partake, while living, of the quality of the soil, and are, as growing fruit was, considered as part of the realty.”
In the Falkland, Islands Co. v. Reg., 10 Jur. (N. S.) p. 807, where there arose the question of the construction of the grant of land made by the crown without reservation except the right to re-enter for the purpose of making roads, canals, and other works of public utility, and the right to cut timber and take stone for keeping such works in repair, it was held that “the grant of land in fee, and the devise of the ten thousand acres for the term, conferred on the appellant the exclusive right of killing and taking game, beasts of the chase, and animals which are properly ferae naturae, which might at any time be upon the land during the time such land was granted.”
Mr. Sergeant Stephens, after discussing the various distinctions in claims to this character of property, after being reduced to possession, by reason of the difference of place where the game was found or started and was killed, says: “These distinctions seem to show that in general the property is acquired by the seizure or occupancy, though that can not prevail against the better claim of him in whose ground the animal is both killed and started (and who therefore may be said to be entitled ratione soli), or of him who has already a qualified property in it ratione privilegii. 2 Steph. Com. 83.
The American cases not only generally treat the right of the owner of land to take game thereon as a property right inhering from the ownership of the soil, but recognize the establishment of that right at common law.
In Venning v. Steadman, 9 Can. S. C., supra, the learned Chief Justice, in discussing the right of government to prohibit salmon fishing except under license from the Department of Marines, says: “Such an absolute prohibition of the enjoyment of their property by riparian proprietors, or what might be still worse by granting a license to one proprietor and withholding it from another, thereby destroying the value of the property of the one and enchancing the value of the property of the other, would simply be. an arbitrar)'' interference with the rights of property, pure and simple.” Mr. Justice Strong, in this same ■case, speaking of the right of riparian landowners to fish in a stream, says: “Then nothing can be better settled than the proposition that no restraint iipon the ordinary rights of property, no derogation from the fidlest enjoyment of these rights, can be imposed by the State, except in express words.”
The same court held that the right of riparian proprietors upon streams above tide water (unnavigable waters), and whose titles were such as to give them, according to the common law principles, the ownership of the beds of the streams to the middle line, to fish therein within the limits of their own lands was a private and exclusive right of property, a proprietary right of the same character as that to herbage of trees growing on the land or the minerals or game to be found upon it. Queen v. Robertson, 6 Can. S. C. 52.
The right of private ownership in game, so far as recognized as such at all, is of two kinds, denominated as the right or interest ratione soli (meaning, as the term implies, a right by reason of and growing out of the ownership of the soil), and the right or interest held by grant from the owner of the soil, called profits a pendre; the latter being defined to be “a right to take something out of the soil of another — is a right of common, and also some minor rights, as a right to take drifted sand, or a liberty to fish, fowl, hunt and hawk.” 1 Crabb, Real Prop. 125; Phear on Waters, 57. The latter right is not a mere easement, but is held to be a right in the soil. Black, Law Dict.; Post v. Pearsall,
In Bingham v. Salene, supra, a grant of the right to hunt and kill wild fowls upon lakes within the boundaries of the owner of the soil is held to be a right of profit in the soil, and not a mere revocable license.
Payne v. Sheets, 55 Atl. (Vt.) 656, which is an exceedingly well considered and instructive opinion, holds that one not the owner of the land, who has a right to shoot game, fish, etc., has not a mere easement, but an interest in the soil, within the meaning of the term “owner” used in a statute authorizing an action of trespass quare clausum fre git against one entering upon lands without permission of the owner or occupant for the purpose of shooting. Mr. Justice Watson, who delivered the opinion of the court, clearly distinguished, with express approval, the former decision of that court in the case of State v. Theriault,
The basis of the decision of the Supreme Court of the United States in McCready v. Virginia,
It is insisted that these questions generally rise in suits between individuals involving only individual rights, and that the recognized right to take game on one’s own land and to prevent others from so doing is merely a right to prevent a trespass on the land, and not a right of property growing out of the soil. But this is not.a correct estimate of the force of these authorities, for the cases all hold that it is a right inhering in the soil, and not a mere right to prevent an invasion of the possession of the owner.
In Sterling v. Jackson, supra, the court says: “The defendant claims that he had the right to shoot the wild fowl from his boat, because, as the waters were navigable where he was, he had the right to be there; that, there being no property in wild fowl until captured, if he committed no trespass in being where he was, no action will lie against him for being there and shooting the wild duck. There is a plausibility in the position which, considered in the abstract, is quite forcible, and, if applied to waters where there is no private ownership of the soil thereunder, would be unanswerable. But, so far as the plaintiff is concerned, defendant had no right to be where he was, except for the purpose of pursuing the implied license held out to the public of navigating the waters over his land. So long as that license continued, he could navigate the water with his vessel, and do all things incidental to such navigation. He could seek the shelter of the bay in a storm, and cast an anchor therein; but he had no right to construct a 'hide/ nor to anchor his decoys for the purpose of attracting ducks within reach of his shotgun/’
In State v. Shannon,
So it is held that a license to shoot or fish for a term amounts to a demise of an incorporeal hereditament, and comes within ■the statute of frauds, and can only be granted by deed. Wood on Stat. Frauds, § 5.
We therefore conceive it to be settled by authority and by long recognition in the law that the owner of land has a right to take fish and wild game upon his own land, which inheres to him by reason of his ownership of the soil. It is a property right, as much as any other distinct right incident to his ownership of the soil. It is not, however, an unqualified and absolute right, but is bounded by this limitation, that it must always yield to the State’s ownership and title, held for the purposes of regulation and preservation for the public use. These two ownerships or rights, that is to say, the general ownership of the State for one purpose, and the qualified or limited ownership of the individual growing out of his ownership of the soil, are entirely consistent with each other, and in no wise conflict.
The transitory nature of the property renders the benefit so diffusive that all may join in the enjoyment thereof, and for that reason the sovereign holds as the representative of the public, so as to regulate and protect the common use. Still, the right of the landowner to hunt and fish on his own lands is to that extent a special property right, though subordinate to the other.
The cases of Geer v. Conn.,
Does the curtailment of this right fall within the prohibition of the Fourteenth Amendment? A complete answer to the inquiry is made in the affirmative when the conclusion is reached that the right denied is a property right. Nonresident landowners may be called upon to share the public burdens, and property rights in some instances must yield to the public demands, but the burden must rest equally upon all, and no discrimination in that respect be made against the nonresidents as such. Eldridge v. Trezevant,
In so far as the statute under consideration prevents the same enjoyment by appellee of the propert3>- right afforded the more fortunate resident landowner, it is a denial of “equal protection of the law,” within the meaning of the constitutional guaranty, and can not be enforced, and the taking away of this right because of his nonresidence is “without due process of law.”
Affirmed.
Dissenting Opinion
(dissenting.) The act of April 24, 1903, and the agreed statement of facts, present broadly this question:
Has the State the power to make it unlawful for nonresident owners of' real estate to shoot and hunt game and to fish on their own or the State’s property at any season while permitting- residents to shoot and hunt and fish on their own and the State’s property during seasons not prohibited by general and special game laws, known as the “open season?”
This question must be answered in the affirmative, unless there is a property interest in fish and game found on, over or under the surface of the real estate owned by such nonresidents, for the manifest intention of the General Assembly, as evidenced by the fourth section of said act, and the object and purpose of the act as a whole, are to make unlawful hunting and fishing by nonresidents.
No exception is made in favor of nonresidents on their own land, and hence it must be concluded that the General Assembly intended to exclude nonresidents from the privilege, or property interest — as it may be construed — of hunting and fishing on their own lands, while granting the right to residents, within certain seasons, of hunting and fishing on their own lands and the lands and waters of the State. To restrict the plain language' of the act to hunting and fishing on the public lands and waters would simply be judicial legislation. Therefore, the question must be met, has the State power to do this?
If the right to hunt and fish on one’s own land is a property right inhering to the ownership of the soil, then this act is offensive to the clause in the Fourteenth Amendment to the Constitution of the United States, and the same clause in section 8, article II, Constitution of Arkansas, providing that no person shall be deprived of “life, liberty or property without due process of law.”
This “due process of law” clause is the mudsill of' constitutional government. The rough barons of England wrote it, almost with their swords, in Magna Charta, in these words: “No freeman shall be taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by the lawful judgment of his peers, or by the law of the land.” These principles have lost no force in their more concise statement in our bill of rights — State and Federal. Counsel for appellee eloquently say: “These few but pregnant lines, fortified as they are by the Federal Constitution, are all that stand between us and the abyss of despotism or the hell of anarchy.”
Therefore a court must pause and carefully consider whether legislation under review seeks to undo the work done at Runnymede. The Supreme Court of the United States is the final arbiter on all questions involving rights asserted under the Constitution of the United States; and its decision on such questions, whether in form to be reviewed by it from this court or not, should be conclusive.
In the case of Geer v. State of Connecticut,
The Connecticut court decided “that the State had power to make it an offense to have in possession, for the purpose of transportation beyond the State, birds which had been lawfully killed within the State during the open season, and that the statute, in creating this offense, did not violate the interstate commerce clause of the Constitution of the United States. The Federal Supreme Court said: “In other words, the sole issue which the case presents is, was it lawful under the Constitution of the United States (section 8, article I) for the State of Connecticut to allow the killing of birds within the State during a designated open season, to allow such birds, when so killed, to be used, to be sold, and to be bought for use within the State, and yet to ■ forbid their transportation beyond the State ? Or, to state it otherwise, had the State of Connecticut the power to regulate the killing of game within her borders so as to confine its use to the limits of the State, and forbid its transmission outside of the State?
It is true that in that case and the one at bar different clauses of the Federal Constitution were invoked against the validity of the statute; in that case the “interstate commerce clause,” and in this the “due process of law.” This was owing to the varying facts and terms of the statutes, but the solution of each of the questions depends solely upon whether there is property interest in game. If there is, then the Connecticut statute would fall because in restraint of an interstate shipment of property; in this case, because it takes the property right from the landowner without due process of law.
The Supreme Court of the United States considered the question as turning on whether there was a property right in game. Mr. Justice White, after* stating the facts and issues presented, as above quoted, then said: “In considering this inquiry we of course accept the interpretation affixed to the State statute by the court of last resort of the State. The solution of the question involves a consideration of the nature of the property in game and the authority which the State had a right lawfully to exercise in relation thereto.” Then the learned justice takes up the subject of the ownership of fish and game from the earliest times known to the laws of civilized countries. He traces it through the Grecian, Roman and Salic laws, and gives an extract from the Code Napoleon, which he says summed up an unbroken line of law and precedent, as follows: “There are things which belong to no one, and the use of which is common to all. Police regulations direct the manner in which they may be enjoyed. The faculty of hunting and fishing is also regulated by special laws.” He further says that the fundamental principle on which property in' game rests pervade the laws of Germany, Austria, Italy, and, indeed, all the countries of Europe. Then, passing to the common law of England, he says: “The common law of England also based property in game upon the principle of common ownership, and therefore treated it as subject to governmental authority.” Then follow quotations from Blackstone showing the paramount authority of the government over fish and game, while recognizing a qualified property in the privilege of hunting and fishing on his own ground to the exclusion of others; but the minute the game passes his boundary, ’ that fugitive right is also gone.
The court proceeds to declare that this attribute of the government to control animals ferae naturae was vested by inheritance in the colonies founded in America by the English people, and passed from the colonies to the several States on the formation of the Union, and remains in the States to the present day, in so far as its exercise may be not incompatible with, or restrained by, the rights granted the Federal government. Then, the court proceeds to a review of the numerous decisions of the Supreme Court of the United States and of the several States, recognizing the absolute right of the State to control and regulate the common property in game and fish. The court cites and approves many cases, not only of regulation, but of “control” of the common property in game. Among others so cited is Organ v. State,
The above excerpt, and more, from Magner v. People, is quoted by Mr. Justice White in the Geer case as expressing the correct doctrine. Therefore the case comes as authority approved by this court and approved and copied at length as part of its opinion by the Supreme Court of the United States. Coming thus accredited, it is conclusive and binding authority to the effect that there is no property right in fish and game in individuals as against the State, and the State may, as a boon or privilege, permit hunting and fishing to any one, or withhold it from any one, and affect no property interest whatever.
Returning to the Organ case, Mr. Justice Hemingway continued: “It (referring to the State) may prohibit catching them entirely, or for a specified season; or it may permit them to be caught for the use of the person who makes the catch, and withhold the right to sell them, or ship them for sale. When preserved for the common benefit of the people of the State, they are not articles of commerce in any sense, and we can not see that they become such simply because the Legislature permits them to be caught by individuals for use within the State only.” Counsel for appellee, to break the force of this decision as authority here, says of it that it “merely follows Geer v. Conn. The fish were taken from public waters, and the case has no resemblance to this.” It would be more accurate to say that Geer v. Conn. followed the Organ case, as it is twice cited approvingly therein. But the argument of counsel is answered in the opinion itself wherein it says: “One who catches them had originally no separate property in them, and no right to acquire it except as the Legislature might provide; as all right of property in them is derived from the State, it is subject to such terms as the Legislature imposes. * * * The restriction was imposed by right of ownership, and not in the exercise of any assumed power to regulate. the commercial use of private property.” Thus the power of regulation is placed upon its only true basis — the right of ownership of the fish and game in the State, and it matters not where it is found (except reclaimed game in parks and fish in private ponds, which have a property right impressed in them by being reduced to personal possession, and are no longer ferae naturae.) But a more complete answer than is here given to the position of counsel that the Organ case does not control as to game or private property, but only in public domain, is given in American Express Co. v. People,
Mr. Justice White, aftér fully reviewing the adjudications of many States on this subject, deduces these propositions: That the qualified property interests in game is derived from the sovereign grant of it, and it may be withheld, restricted or regulated; that a State may permit its own people to enjoy their own property, and withhold from them the right to deal with it as an article of interstate commerce; that there may be an internal commerce in the dead animals which does not conflict with the right of Congress to regulate interstate commerce; and .further: “The common ownership imparts the right to keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose.”
In speaking of cases from Kansas and Idaho contrary to the decision reached in Geer case, Justice White said: “But the reasoning which controlled the decision of these cases is, we think, inconclusive, from the fact that it did not consider the fundamental distinction between the qualified ownership in game and the perfect nature of ownership in other property, and thus overlooked the authority of the State over property in game killed w-ithin its confines, and the consequent power of the State to follow such property into whatever hands it might pass, with the conditions and restrictions deemed necessary for the public interest.” This ultimate conclusion that decisions to the contrary of this one are based on a confusion of the nature of the qualified property right in game may account for some decisions conflicting with this view, but in the main there is no serious conflict in the decisions. Take for instance Payne v. Sheets,
The argument is also made that this act discriminates unlawfully by denying equal privileges to citizens of other States. McCready v. Virginia,
This same question came up in Tennessee under a statute forbidding fishing anywhere except by rod or line and excepting private ponds, and was thus disposed of by the Supreme Court of that State: “Finally, it is insisted that this act is void because violative of the first section of the Fourteenth Amendment of the Constitution of the United States in that it unwarrantably interferes with the property rights of owners of lakes, etc. We think this contention equally unsound. It overlooks the fact that fish in streams or bodies of water have always been classed by the common law as ferae naturae, in which the riparian proprietor, or the owner of the soil covered by the water, even though he may have the sole and exclusive right of fishing in said waters, has, at best, but a qualified property, which can be rendered absolute only by their actual capture, and which is wholly divested the moment the fish escape to other waters.” Peters v. State,
In the opinion of the minority of the court in this case the act is constitutional, and the fourth clause effective against nonresidents hunting and fishing in their own premises, and therefore the judgment should be reversed.