State v. Mallory

67 L.R.A. 773, 83 S.W. 955, 73 Ark. 236, 1904 Ark. LEXIS 48

• Court: Supreme Court of Arkansas
• Decided: December 3, 1904
• Status: Published

Opinions

McCurloci-i, J.

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, 161 U. S. 519, says:

“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, 89 N. W. 839, a prosecution for violation of this act, held that the title to the lakes and the waters thereof were in the State for the purpose of regulating the' common use and enjoyment, yet the State had no such proprietary interest as implied the right to sell or grant special privileges for the use. The court, speaking through Mr. Justice Marshall, says: “Is ice formed naturally upon the public waters of the State State property in "a proprietary sense — property which it can deal with as a private person deals with his property rights? * .* * Obviously, there can be no difference between public water, in a liquid condition, and in the form of ice, or between water and the land covered thereby, or the fish or fowls which inhabit the same, or any of the animals ferae naturae, in respect to the sovereign authority over the same. If one may be dealt with as the absolute property of the State, the others may be.” After an exhaustive review of the authorities the learned justice continues: “It seems clear that if the State can not sell the bed of a navigable lake, it can not sell the waters thereof; or the fish therein, or the fowls that resort to its surface, or the ice, that forms thereon. The rules that limit the rights as to one of those matters limit its power as to all. The foregoing seems not only to leave no reasonable, but no possible doubt, as to the conclusion which ought to be reached in this case. It stamps the act in question indelibly as a result of a misconception of the State’s interest in navigable lakes, and-as being baseless and unconstitutional. The title to the beds of such lakes is in the State, but not for its own use as an entity. The mere naked legal title rests in the State, but the whole beneficial use thereof, including the use of the ice formed thereon, is vested in the people of the State as a class.” See also Sanborn v. People’s Ice Company, 82 Minn. 43, s. c. 84 N. W. 641; People’s Ice Co. v. Davenport, 149 Mass. 322, s. c. 14 Am. St. Rep. 425; Rowell v. Doyle, 131 Mass. 474; Brown v. Cunningham, 82 Iowa, 542; Barrows v. McDermott, 73 Me., 441; Woodman v. Pitman, 79 Me. 456; Priewe v. Improvement Co. 93 Wis. 534; McLennan v. Prentice, 85 Wis. 427; Illinois Central R. Co. v. Illinois, 146 U. S. 387.

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, 22 Wend. 425; Wash. Easements, p. 7; Pickering v. Noyes, 4 Barn. & Cress, 639; Waters v. Lilley, 4 Pick. 145; Webber v. Lee, L. R. 9 Q B. D. 315; Bingham v. Salene, 15 Or. 208; s c. 3 Am. St. Rep. 152; Tinicum Fishing Co. v. Carter, 100 Am. Dec. 597.

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, 70 Vt. 617, wherein the constitutionality of a law regulating the right of the owner of land to fish on his own premises was upheld as a proper exercise of the police power, it having been stated in the former case that “fish are ferae naturae, and the common property of the public or the State.” The learned justice says: “To state it otherwise, the general ownership is in the people in their united sovereignty, but when such animals go upon private grounds, then the qualified or special right of property in the owner of the soil attached by virtue of his exclusive right to hunt, kill or capture them while there; and this upon the principle that property which a person has a special right to acquire to the exclusion of others is private property.”

The basis of the decision of the Supreme Court of the United States in McCready v. Virginia, 94 U. S. 391, upholding the power and right of the State of Virginia to prohibit nonresidents from planting oysters in the soil covered by her tide waters, is the fact that the State owned the bed of all tidewaters or navigable streams within its jurisdiction. Chief Justice Waite, speaking for the court, says: “The right • which the, people of the State thus acquire comes not from their citizenship alone, but from their citizenship and property combined. It is, in fact, a property right, and not a mere privilege or immunity of citizenship. See also Sterling v. Jackson, 69 Mich. 488; Hall v. Alford, 38 L. R. A. 205; Cobb v. Davenport, 32 N. J. L. 369; Hickman v. Sweet, (Cal.), 33 Pac. 1099.

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, 36 Ohio St. 423, the same doctrine is well illustrated, and the court therein says: “True, navigable streams in this State are declared to be public highways; but the right to use a public highway is not abridged by protecting the owner of the fee in the exclusive right of killing game therein.”

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., 161 U. S. 519, and Organ v. State, 56 Ark. 267, are pressed upon our attention with great force and earnestness by the learned counsel for the State, as conclusive of the case at bar. In both those cases the general doctrine of State ownership of wild game and fish is declared, .but the language of the courts in those cases, when limited to the question under consideration, as must always be done when testing the soundness of a declared doctrine, is undoubtedly correct, and in no degree inconsistent with the .views herein expressed. The cases were almost identical upon the facts, being criminal prosenitions for the unlawful exportation of game out of the State in violation of a statute prohibiting' the same. We see no reason whatever in the opinion we now express for receding from the law declared by this court in Organ v. State. On the contrary, we adhere to it. The fullest latitude of power in the State to regulate and preserve the game for the common enjoyment is conceded, and no such private property right therein which we hold to exist can retard or obstruct the exercise of that undoubted power. But we have another and altogether different prohibited for the sole reason that they are nonresidents of the owners have a right to hunt and fish upon their lands which is a property right, they are entitled to equal protection in the enjoyment of that right with other landowners, or whether it be destroyed by a statute passed under the guise of a police regulation to preserve the fish and game, and the right of enjoyment prohibited for the Sole reason that they are nonresidents of the State. It is not of the fact that appellee is excluded from enjoyment of the common right of the citizen to fish and hunt, because of his nonresidence, that he may complain, but of the exclusion, by reason of his nonresidence, from such special right which he should enjoy in common with other landowners.

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, 160 U. S. 452.

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.