Buras v. Salinovich

• Decision Date: 02 October 1923
• Docket Number: 25980
• Citation: 97 So. 748,154 La. 495
• Court: Louisiana Supreme Court
• Parties: BURAS v. SALINOVICH et al

97 So. 748

154 La. 495

BURAS v. SALINOVICH et al

No. 25980

Supreme Court of Louisiana

October 2, 1923

Appeal from Twenty-Ninth Judicial District Court, Parish of Plaquemine; Leander H. Perez, Judge.

Suit by Manuel Oscar Buras against Anthony Salinovich and others for an injunction. Judgment for defendants, and plaintiff appeals.

Annulled, and judgment rendered.

John Dymond, Jr., A. Giffen Levy, and R. J. Weinmann, all of New Orleans, for appellant.

John Dymond, Jr., of New Orleans, for Delta Duck Club, amicus curiae.

Walker B. Spencer, of New Orleans, and Allen J. Ellender, of Houma amici curiae.

John R Perez, of New Orleans, Numa F. Montet, of Thibodaux, Fred A Middleton, of New Orleans, Conzelmann & Gaudet, of Gretna, Walter J. Suthon, Jr., of New Orleans, Harris Gagne, of Houma, and Delvaille H. Theard, of New Orleans, for appellees.

OPINION

O'NIELL, C. J.

The question in this case is whether the conservation laws of the state give to the holder of a license to hunt and trap wild game and fur-bearing animals; the right to hunt and trap on any and all marsh land, even against the protest of the owner of such land, if the land be subject to tidal overflow, unfenced, not in cultivation or used as a pasture, and not set apart as a game preserve.

Plaintiff here owns a tract of marsh land, exceeding 5, 000 acres in area, fronting nearly 4 miles on the east bank of the Mississippi river, about 85 miles below New Orleans. The land is not fenced, or cultivated, or used for a pasture; and, excepting the ridge that extends back only a few acres from the river, and the ridges forming the banks of several bayous in the land, it is subject to tidal overflow, and not fit for cultivation.

Each of the six defendants holds a state license, declaring that he "has paid the license fee required by law, and is entitled to hunt such game birds and game animals, and to catch or trap such animals as are defined under the laws of the state of Louisiana, during the open season, and in such manner and at such times and places as permitted by law." The defendants, pursuing a custom which had prevailed among the local hunters and trappers from time immemorial, went upon plaintiff's land, without his consent and, for their own profit, engaged in hunting the wild game and in trapping the fur-bearing animals on the land.

The plaintiff had posted notices, printed in bold letters, on boards measuring 18 inches square, along the boundaries of the land and along the banks of the bayous running through the land, forbidding trespassing within the line of stakes, under penalty of the law. The notices and intervening stakes were spaced close enough together to serve their purpose.

Similar notices, describing the land, were published in the two newspapers published in the parish where the land is situated.

Plaintiff also had a man employed patrolling the land, making the rounds regularly through the bayous, warning hunters and trappers against trespassing upon the land. He delivered to each of the defendants personally a written demand that they should quit hunting and trapping on the land. The defendants refused to quit.Thereupon plaintiff brought this suit, alleging the facts which we have stated, and praying for a preliminary injunction, to be eventually made perpetual, forbidding the defendants to go upon the land for the purpose of hunting or trapping.

The district judge issued a rule, ordering the defendants to show cause why the preliminary injunction should not issue.

Answering the petition, and the rule to show cause, the defendants denied that plaintiff was entitled to any relief, on the facts stated, and they set up a reconventional demand for a judgment in their favor, declaring that they had the right to go upon any part of the land described in plaintiff's petition "for the purpose of trapping, taking, capturing, killing, or removing from the land, any animal, fowl, bird, or quadruped, without the consent or permission of the plaintiff or of any other person, and further condemning the said Manuel Oscar Buras to pay to respondents, as plaintiffs in reconvention, the sum of $ 3, 250, as damages, with legal interest, " etc. The damages claimed were said to be $ 2, 500 for the alleged or approximated value of the fur- bearing animals which, defendants alleged, this suit had prevented their trapping, and $ 750 for attorneys fees alleged to have been incurred in defending the suit.

Having heard argument on the rule, the district judge refused to issue a temporary injunction. The case was then heard on its merits, resulting in a judgment for the defendants, rejecting the plaintiff's demand for an injunction "and recognizing the defendants' right to enter upon the premises described in the petition herein, for the purpose of trapping and removing therefrom such wild life and fur-bearing animals as are permitted by state license." The plaintiff has appealed.

The Civil Code, in article 3415, after declaring that the wild beasts and birds have no owner while they are at large, and that when captured they become immediately the property of their captor, whether he takes them from his own land or from the land of another, says:

"But the proprietor of a tract of land may forbid any person from entering it for the purpose of hunting thereon."

The argument of the defendants is two-fold. It is contended, first, that this provision of the Code, recognizing the right of any and every landowner to forbid hunting on his land, was repealed by implication, or superseded, by section 20 of the Conservation Law (Act 204 of 1912), as to marsh land, subject to tidal overflow, and not fenced, or in cultivation, or used as a pasture, or set apart as a game preserve. In the alternative, the defendants contend that plaintiff's land, being subject to overflow regularly from the gulf tides, is "seashore, " according to the definition in the Civil Code, and is therefore not subject to private ownership. They refer to articles 450, 451, 452 of the Civil Code, viz:

Art. 450 (441). "Things which are common are those the ownership of which belongs to nobody in particular, and which all men may freely use, conformably with the use for which nature has intended them; such as air, running water, the sea and its shores.

Art. 451 (442). "Seashore is that space of land, over which the waters of the sea spread in the highest water, during the winter season.

Art. 452. (443). "From the public use of the seashores, it follows that every one has a right to build cabins thereon for shelter, and likewise to land there, either to fish or shelter himself from the storm, to moor ships, to dry nets, and the like, provided no damage arise from the same tothe buildings and erections made by the owners of the adjoining property."

The district judge, in his written opinion, maintained the defendants' contention that the provision in article 3415 of the Civil Code, recognizing the right of every landowner to forbid hunting on his land, was repealed by implication, or superseded, by section 20 of Act 204 of 1912, in so far at it had applied to marsh land, subject to tidal overflow, and unfenced, and not cultivated or used for a pasture, or set apart as a game preserve. The judge did not maintain that the land was "seashore, " not subject to private ownership. He must have concluded or assumed that the land was not "seashore"; otherwise there would have been no occasion for pronouncing judgment upon the repealing effect of section 20 of Act 204 of 1912, as to marsh land that is subject to private ownership.

We concur in the opinion that plaintiff's land should not be classed as "seashore, " or public property. The fact that it is subject to tidal overflow does not characterize the land as "seashore, " under the provisions of the Code. The statutes providing...