Alford v. Finch, R-J
| Decision Date | 28 June 1963 |
| Docket Number | No. 31753,R-J,31753 |
| Citation | 155 So.2d 790 |
| Parties | Julian ALFORD, as Chairman, T. Payne Kelly, Jr., Charles L. Hoffman, Thomas W. McBroom and Don Southwell, as Members of and constituting the Game and Fresh Water Fish Commission of the State of Florida; A. D. Aldrich, as Director of said Commission; Mack Hodges and Joe Shepard, Appellants, v. K. O. FINCH, Howard P. Rives, Charles A. Johnson, Jr.,Farms, Inc., a Florida corporation, Levy Land Co., Inc., a Florida corporation, Appellees. |
| Court | Florida Supreme Court |
Richard W. Ervin, Atty. Gen., Joseph C. Jacobs, Tallahassee, and Sam Spector, Miami, for appellants.
Howard P. Rives (of Cooper, Rives & Baskin), A. D. Finch of Finch & Mosley, Clearwater, for appellees.
This cause is before us on appeal from a decree of the Circuit Court for Leon County holding invalid certain orders of the Game and Fresh Water Fish Commission. The jurisdiction of the Court has been properly invoked under Fla.Const., Art. V, § 4(2), F.S.A.
The appellees, plaintiffs below, the owners of 700 acres of land, brought suit seeking a declaratory decree and supplemental relief, contending that the defendant, appellant here, had deprived them of their constitutional right to equal protection of the laws and, without due process of law, had taken their private property for public use without just compensation.
The facts are that certain third person owners had agreed with the Commission that their lands, not here in question, could, for a period of 25 years, be designated a 'game management area,' within which such owners and the public could take game, provided the Commission 'set aside as a breeding ground throughout the term of this agreement' certain other lands, including the land of the appellees, upon which neither the appellees nor the public could shoot.
The record indicates that, pursuant to the agreement with the aforesaid third person owners, the Commission promulgated an order creating the game refuge but the text does not appear and, othet than the conclusion that the other did incorporate the land of the appellees in said refuge and did prohibit hunting thereon for an indefinite period, perhaps 25 years, we have no information. It seems clear, however, that the Commission, without the consent of or compensation to the appellee owners of the 700 acre tract now involved, ordered that land closed to all hunting and trapping. The trial judge found, inter alia, that the orders closing the property of the appellees were invalid because 'they deny to the plaintiffs the equal protection of the laws, deprive plaintiffs of property without due process of law and have the effect of taking property of plaintiffs for public use without just compensation, all contrary to the provisions of both state and federal constitutions; the property rights which have been unconstitutionally affected are those of the landowner to hunt game on his land, subject to lawful regulation, which accrues as an incident of ownership of the soil.'
Recognizing the power of the Commission to fix open and closed seasons and otherwise regulate the taking of game, the trial judge found that regulations which impose burdens on some but not upon other citizens like situated, with no just basis for the classification, constitute a denial of equal protection of the law; that the orders complained of here denied the plaintiffs (appellees) privileges which neighbors in the area enjoy, and held:
The court further held that the indefinite prohibition of hunting on the lands of the plaintiffs (appellees), under the facts of the case, constituted 'a taking of private property for public use and since no compensation has been paid is itself a violation of Sec. 12, Declaration of Rights, and Sec. 29, Art. XVI, Fla.Const., which prohibits deprivation of property without due process of law and taking of private property without just compensation.'
This cause necessitates the determination of whether, under Sec. 30 Art. IV, of the Florida Constitution, 1 the Commission has the power to close to hunting for a period of years, without consent or compensation, the private property of one owner, leaving unaffected in the same vicinity the private property of others. The Court can take judicial notice of the fact that vast acreages are maintained in Florida by owners for the principal, if not the sole, purpose of preserving, protecting and shooting game thereon.
The exclusive common law right of a landowner to take game on his land, known as property ratione soli, 2 was defined by Lord Westberry in an early English case 3 as 'the common law right which every owner of land has to kill and take such animals ferae nature as may from time to time be found on his land.' This right has been recognized throughout the history of common law, with one exception: Following the Norman Conquest the King contended that he was lord paramount of the field, possessed of the right to the universal soil and of the exclusive right to take the game, but the irate landowners, vehemently objecting, quickly and decisively recaptured their rights and re-established the common law. 4
American cases are in harmony with the common law rule. 5 In Hanson v. Fergus Falls National Bank & Trust Co., 6 the Minnesota court said:
'Summarized, the right of hunting on premises is an incorporeal right growing out of the soil, referred to in law as a profit a prendre, and may be segregated from the fee of the land and conveyed in gross to one having no interest or ownership in the fee, and when so conveyed it is assignable and inheritable.'
In Hamilton v. Williams 7 this Court said:
Wild game is vested in the State as trustee for all its citizens with full power and authority in the State to regulate and protect. * * *
'The owner of the soil, however, has special and qualified interest in the wild game while it is thereon. Such special and qualified interest is a property right incident to his ownership of the soil. That property right is the right to exclusively hunt such wild game upon the soil, subject to any lawful regulation by the State. * * *
'While it is true this court held as contended by petitioner in the case of State [ex rel. Spencer] v. Bryan, 87 Fla. 56, 99 So. 327, 329, 'The power and discretion of the Legislature to control * * * the subject of hunting game is not limited by the organic law, and the subject regulated may be as restricted in the manner and extent as the Legislature deems advisable,' nevertheless such holding in no sense of the word meant that the Legislature or any citizen could deprive another citizen of a vested property right such as defined above except by due process of law.' (Emphasis added)
In a later case, 8 this Court said the Legislature could provide by law for the conservation of game, 'where such laws do not deny to any one having rights in the premises the due process of law or the equal protection of the laws that are guaranteed to all persons by the state and federal Constitutions.'
The appellant has confused the ownership of the game in its wild state with the ownership of the right to pursue the game. The landowner is not the owner of the game, ferae naturae, but he does own, as private property, the right to pursue game upon his own lands. That right is property, just as are the trees on the land and the ore in the ground, and is subject to lease, purchase and sale in like manner. The right to hunt on another's premises, the right of venery, 9 is an interest in real estate in the nature of an incorporeal hereditament and as such is within the statute of frauds and requires a writing for its creation. 10
The predominant feature in the instant case is the taking, with neither consent nor compensation, by the appellant from the appellees, of a property right--the right to pursue the game on their land. It is our view that the Commission is empowered to regulate the taking of game and to acquire property, by purchase and gift, for its use but that under the authority delineated in the Constitution, it is not, under the guise of regulation or otherwise, empowered to take private property for public purpose without just compensation. There is no Florida precedent for a contary view and such federal precedent as there may be is less than persuasive. We are not yet ready in this State to embrace the 'managed economy' theory of government.
If it be urged that any doubt touching the validity of the order involved should be resolved in its favor we suggest that, conversely, all doubt should be resolved in favor of the Constitutional interdiction against the taking of private property without compensation. Recognizing the laudable purpose of the Game Commission and its regulatory powers in an increasingly complex society we must conclude that the adjective advantage of game preservation cannot overshadow the mischief to be achieved by the circumvention of the Bill of Rights.
It should be noted that the authority of the Commission to establish refuges is defined by Article IV, Section 30 (1), Florida Constitution, 11 which prescribes that such refuges may be established on property 'now or hereafter owned or used for such purposes by the State of Florida.' Paragraph (4) of the same section authorizes the Commission to acquire property by purchase or gift but not otherwise. 12 The amendment, the source of the Commission's power, does not authorize the Commission, without consent to the owner, to establish refuges on private property, either by virtue of police power or the exercise of eminent domain. 13
The Commission has full...
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