Krenz v. Nichols

222 N.W. 300, 197 Wis. 394, 62 A.L.R. 466, 1928 Wisc. LEXIS 395
CourtWisconsin Supreme Court
DecidedDecember 4, 1928
StatusPublished
Cited by18 cases

This text of 222 N.W. 300 (Krenz v. Nichols) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Krenz v. Nichols, 222 N.W. 300, 197 Wis. 394, 62 A.L.R. 466, 1928 Wisc. LEXIS 395 (Wis. 1928).

Opinion

Crownhart, J.

Ch. 29 of the Statutes, entitled “Fish and Game,” deals generally with the propagation, hunting, trapping, fishing, and disposition of such fish and game in the state of Wisconsin. This chapter, comprising sixty-three sections, legislates in detail as to all the various matters connected with the subject. Its enforcement and administration is put under the jurisdiction of the Conservation Commission. The Conservation Commission was created by sec. 23.09 of the Statutes to provide an adequate and flexible system for the protection, development, and use of forests, fish and game, lakes, streams, plant life, flowers, and other outdoor resources in the state of Wisconsin, and is given very broad and comprehensive powers in regard thereto.

Sec. 29.575 provides for the licensing and regulation of muskrat farms. Sec. 29.576 provides for the regulation and operation of beaver farms, and sec. 29.577 provides for the regulation of other fur-animal farms, including mink, otter, marten, fisher, raccoon, and skunk. Sec. 29.575 is the section affecting this action, and is printed in the margin.1 [398]*398The other two sections dealing with fur-bearing animals are of very similar import. Sec. 29.02 provides:

“(1) The legal title to, and the custody and protection of, all wild animals within this state is vested in the state for the purposes of regulating the enjoyment, use, disposition, and conservation thereof.
“(2) The legal title to any such wild animal, or carcass [399]*399or part thereof, taken or reduced to possession in violation of this chapter, remains in the state; and the title to any such wild animal, or carcass or part thereof, lawfully acquired, is subject to the condition that upon the violation of any of the provisions of this chapter relating to the possession, use, giving, sale, barter, or transportation of such wild animal, or carcass or part thereof, by the holder of such title, the same [400]*400shall revert, ipso facto, to the state. In either case, any such wild animal, or carcass or part thereof, may be seized forthwith, wherever found, by the state conservation commission or its deputies.”

The plaintiff’s position is that sec. 29.575 is a valid law, and that the acts of the defendant were in violation thereof; and he claims he has title to the soil to the thread of the stream, and any interference with that soil or land adjacent thereto constitutes a trespass.

The defendant contends that sec. 29.575 is void and of no effect, and that the defendant has a right to hunt and fish, including the taking of fur-bearing animals, in the navigable streams of the state as incidental to the rights of navigation; that so long as he remains in the boat which he navigates on the waters, in any customary or usual manner, and takes wild game, including fur-bearing animals and fish, from such waters, he is within his rights, subject only to the right of the state of Wisconsin to regulate the time and manner of taking such animals.

It is a familiar and oft-quoted principle of law that the legislature, as the direct representative of the people, has all powers of legislation not limited by the federal or state constitutions. No specific provision of either constitution is pointed out by the defendant against which the act offends. All the authorities are to the effect that the state holds title to the wild animals in trust for the people. No individual has any title to any such animal until he reduces it to lawful possession. As trustee for the people, the state may conserve wild life and regulate or prohibit its taking in any reasonable way it may deem necessary for the public welfare, so long as it does not violate any organic law of the land.

There is quite a common belief prevalent that wild animals are of common right open to capture and possession by the public, and restrictions thereto must be-limited and reasonable. This belief, no doubt, comes as a heritage of pioneer [401]*401days, when no necessity existed for such restrictions, and when the people were largely dependent upon hunting and fishing, but that time has long since passed. . It is now generally recognized that valuable wild animal life would soon be exterminated if the state should fail to conserve it and aid in its reproduction. Whenever the state has done so without trenching on private rights protected by the constitution, such acts have been almost uniformly upheld. To that end legislation has been held valid regulating the taking of fish from a public lake and providing for the destruction of nets used contrary thereto, Bittenhaus v. Johnston, 92 Wis. 588, 66 N. W. 805; prohibiting the shipment or sale of more than a stated quantity of fish at one time, although the same has been legally taken, State v. Nergaard, 124 Wis. 414, 102 N. W. 899; prohibiting the possession of the skins of certain fur-bearing animals, Cohen v. State, 180 Wis. 352, 192 N. W. 992; regulating the right of planting and taking oysters or other shell fish, 26 Corp. Jur. p. 609, and cases cited; restrictions for the catching of fish, even to the extent of restricting the use of, or right of property in, the fish after they are taken, and of obliging all citizens to conform to such regulations by inflicting penalties for the violation thereof, 26 Corp. Jur. p. 623, and cases cited. Substantially the same rules apply to the conservation of game as to fish. 27 Corp. Jur. p. 945.

This court has treated fur-bearing animals in the same category as fish and game. Cohen v. State, 180 Wis. 352, 192 N. W. 992. The same principle of conservation has been applied by the federal government, by law and by treaty, to seal catching, 26 Corp. Jur. p. 616; likewise an act of Congress to carry out the treaty regulation as to migratory birds has been upheld, Missouri v. Holland, 252 U. S. 416, 40 Sup. Ct. 382; statutes regulating the taking of migratory fish..are held valid,- 26 Corp. Jur. p. 630, and cases cited. Nearly every conceivable regulation for the propagation, [402]*402conservation, taking, and disposal of ñsh and game has been upheld where no constitutional objections have stood in the way. Generally, courts have given very liberal construction to such statutes, to the end that the public welfare should be subserved.

The state, under its police power and to carry out its trust, passed the statute in question. So far as it affects the public the statute is reasonable and is not contrary to any provision of the federal or state constitutions. Nor do we think it is contrary to the decision of this court in Diana Shooting Club v. Husting, 156 Wis. 261, 145 N. W. 816. In that case the court upheld the right of a citizen of the state to hunt from a boat in the navigable inland streams of the state, notwithstanding that the boat should be on the waters over the lands of a private owner. The court there said that was a right incident to the right of navigation, and that the right of navigation was free to all the citizens of the state upon such waters, by virtue of the Ordinance of 1787, the enabling act of the state constitution, and the constitutional provision thereto.

While hunting and fishing may be an incident of navigation it does not depend on navigation, nor does navigation depend upon the privilege of hunting and fishing.

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Bluebook (online)
222 N.W. 300, 197 Wis. 394, 62 A.L.R. 466, 1928 Wisc. LEXIS 395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krenz-v-nichols-wis-1928.