Dennig v. Graham

• Decision Date: 25 April 1933
• Docket Number: No. 5205.,5205.
• Citation: 59 S.W.2d 699
• Parties: DENNIG v. GRAHAM.
• Court: Missouri Court of Appeals

59 S.W.2d 699

DENNIG v. GRAHAM.

No. 5205.

Springfield Court of Appeals. Missouri.

April 25, 1933.

Appeal from Circuit Court, Butler County; Robert I. Cope, Judge.

Suit by Louis E. Dennig against Ephriam Clare Graham. Decree for defendant, and plaintiff appeals.

Reversed, with directions.

Gustave A. Stamm, of St. Louis, and Henson & Woody, of Poplar Bluff, for appellant.

Phillips & Phillips, of Poplar Bluff, for respondent.

BAILEY, Judge.

This is a proceeding in equity to enjoin defendant, a resident of Butler county, Mo., from trespassing upon and fishing in the waters of Greer spring and Greer spring branch, maintained by plaintiff as a private fishing reserve. The petition, filed June 3, 1931, in the circuit court of Butler county, charges, in substance, that plaintiff is the owner of about 3,900 acres of land in Oregon county, Mo., and that a very large spring, commonly known as "Greer Spring," rises from the earth wholly within said lands owned by plaintiff, and that the waters therefrom flow through plaintiff's lands for a distance of one and three-fourths miles; that said water course is known as "Greer Spring Branch," and empties into Eleven Point river at a point within plaintiff's said lands, and that plaintiff is the owner in fee simple of all the land surrounding said Greer spring and Greer spring branch; that Greer spring branch is shallow and swift so that it cannot be navigated; that plaintiff has stocked the waters of Greer spring and Greer spring branch with rainbow trout, and has maintained the same as a private fishing reserve for the past 15 years, all of which, it is alleged, was known by defendant; that said Greer spring and Greer spring branch are entirely surrounded by a fence erected upon the lands of plaintiff; and that plaintiff has posted notices on said fence at numerous places reading: "No Trespassing. Posted Land, L. E. Dennig, owner."

It is further alleged in plaintiff's petition that defendant, Ephriam Clare Graham, has repeatedly entered upon the above-described lands and waters owned by plaintiff, and committed trespass thereon by fishing in the waters, at various times, to wit: "On the 12th day of May, 1930, the 5th day of August, 1930, the 11th day of April, 1931, and the 12th day of April, 1931"; that defendant entered upon the lands and waters of plaintiff without his knowledge or consent, and threatens to continue to fish in said waters without the knowledge or consent of plaintiff; that plaintiff has erected, at large expense, a fish hatchery for the propagation of rainbow trout adjacent to and connected with Greer spring branch, for the purpose of maintaining the supply of rainbow trout in said waters, and that he has expended large sums of money to preserve the same as private fishing waters; that plaintiff's right to fish therein, to the exclusion of defendant and the public generally, is of peculiar and exceptional value, the monetary value thereof not being capable of ascertainment, and that the value of the fish taken by defendant is unknown to plaintiff, and therefore plaintiff has no adequate remedy at law for damages; that the continuing trespass of defendant constitutes an irreparable injury to plaintiff. The prayer is for injunctive relief as heretofore stated.

Defendant's answer consisted of a general denial, and further pleaded substantially as follows: That the court was without jurisdiction of the subject-matter, for the reason that the trespasses complained of, if any, were committed upon lands in Oregon county; that said Greer spring is the largest, or second largest, spring in the world, and discharges water at the rate of 503,000,000 gallons per day; that the volume of water of the spring branch at its mouth is six or eight times that of Eleven Point river at the same point; that for more than 15 years the state of Missouri has, at intervals, stocked said waters with rainbow trout and other fish for the benefit of fishermen desiring to fish said waters; that the mouth of Greer spring branch is at all times open so that fish can and do pass from the waters of Eleven Point river into the waters of Greer spring branch and vice versa; that Greer spring branch for quite a distance is navigable for small boats, and has been made use of as such for more than 25 years; that, "defendant specifically denies that plaintiff owns the land under the banks or waters of Greer Spring, Greer Spring Branch, or Eleven Point River, or is entitled to the exclusive possession of the same, and denies that he owns or is entitled to the exclusive possession of the fish therein, or that he has the exclusive right to fish or determine who shall fish therein, or that he has the exclusive right to fish or determine who shall fish said waters—but to the contrary thereof, said fish belong to the State of Missouri, until lawfully reduced to the possession of some person.

"Defendant, further answering, states that said waters aforesaid flow through wild, rocky and uncultivated land, and that by the fishing of said waters, no injury will be done either to the water or land over and through which the same flows, and that the fish that might be caught as a result thereof are not the property of the plaintiff, and defendant specifically denies this plaintiff will sustain any injury or damage as a result of the fishing of said waters by defendant."

Estoppel is also pleaded.

Trial of the issues thus made was had in the circuit court of Butler county on the 25th day of August, 1931. The trial court took the matter under advisement, rendering a judgment on February 8, 1932, finding the issues in favor of defendant and decreeing that plaintiff take nothing by reason of his petition. From this decree, after an unsuccessful motion for new trial, plaintiff has appealed.

There is very little conflict in the evidence. While there was some objection to plaintiff's offer of proof of ownership of the land in question, that fact now appears to be conceded, and plaintiff's ownership is no longer an issue in the case. The evidence stands uncontradicted that Greer spring and Greer spring branch are wholly within the confines of plaintiff's said lands. The opinion on the part of all parties concerned (being loyal Missourians) is unanimous in upholding the reputation of Greer spring as one of the largest springs in the world. But, even though it be the eighth wonder of the world, this beauty spot of the Ozarks is now and was owned by a private individual, the plaintiff in this case. The evidence shows that he has stocked it with rainbow trout, obtained either from the state of Missouri or the federal government, from time to time during the period of his ownership, or since 1915, and for a number of years, since his erection of a fish hatchery on the land, plaintiff has turned 100,000 to 150,000 trout per year into the spring; that plaintiff paid the express charges for all fish eggs obtained from the United States government and all expenses in connection with the hatchery; that plaintiff, a resident of St. Louis, employed a caretaker to look after the hatchery and the premises during his absence; that plaintiff has built a cabin near Greer spring branch and made various other improvements in order to preserve the wild state of the premises; that the public was formerly permitted to fish in the spring branch until a fence was built around the same 2 years prior to the institution of this suit, at which time the land was posted by placing signs on the fence in various places reading, "No trespassing. Posted Land. L. E. Dennig, owner." The evidence also shows that defendant (after the erection of said fence) entered upon plaintiff's premises on May 12, 1930, at which time he was found "fly fishing" in the spring; at that time the caretaker told him not to fish there, that "Mr. Dennig did not allow it," whereupon defendant quit fishing, but maintained he had a right to do so; he was again discovered fishing in Greer spring branch in August, 1930, and on April 11 and 12, 1931. The evidence further shows that on the latter occasion defendant said that he thought he had a right to fish in Greer spring because his license gave him that right; that "he wanted him (plaintiff) to have him arrested"; that Mr. Dennig had no right to prevent him from going on the property and fishing.

Defendant admitted he had fished in the spring branch after having been notified that fishing therein was prohibited, but denied having fished therein after the land was "posted." He also testified he had no intention of fishing in said waters in the future. He had built a clubhouse some distance down the river from the spring, and claimed it was built contemplating the right to fish in Greer spring and Greer spring branch. Plaintiff testified that on one occasion he told the caretaker, "I felt I had a right to fish there since I owned my own property there, and if he permitted the people in a radius of eight miles to fish that I was entitled to fish too." There is no other evidence that plaintiff did permit those who lived within a radius of eight miles to fish in the waters of Greer spring after the land was inclosed, but, even so, defendant lived and had his home in Poplar Bluff, and claimed no residence in Oregon county other than the little clubhouse and about an acre of ground.

The issues in this case have become quite simple on appeal. It will be noted from defendant's answer, from which we have quoted rather fully, that at the time this petition was filed defendant claimed the right to fish in Greer spring and Greer spring branch. By his answer defendant based his right to fish therein on the theory that plaintiff was not the owner of the land under the waters of Greer spring, that plaintiff did not have the right to the exclusive possession of the fish therein, and that plaintiff did not have the exclusive right to fish in said spring and that plaintiff was estopped from preventing defendant from fishing...