Ex parte Fritz

Decision Date03 July 1905
Citation86 Miss. 210,38 So. 722
CourtMississippi Supreme Court
PartiesEX PARTE LOUIS FRITZ

FROM the circuit court of DeSoto county, HON. JAMES B. BOOTHE Judge.

Habeas corpus by Louis Fritz to obtain his release flora custody on a charge of unlawfully taking fish, and from a judgment denying the writ he appealed to the supreme court.

The facts are stated in the opinion of the court.

Reversed.

Farley & Lauderdale, for appellant.

First--The board of supervisors of DeSoto county had no constitutional power to pass or enact the ordinance involved.

Second The legislature of the state had no constitutional power or authority to delegate, as attempted in Code 1892, ch. 54, to the board of supervisors of DeSoto county the power or authority to pass or enact said ordinance.

Third--Horn Lake is a water course, not navigable, not a channel of commerce, the bed or bottom of which is owned by the riparian owner or owners, and it is therefore private property, and the same cannot be so interfered with as to deprive the owner or owners of the legitimate use of same for purposes of emolument or profit without due course of law and compensation.

Fourth--The legislature could not give the board the power to enact any criminal law and grant it the power to give justices of the peace and mayors territorial jurisdiction over the crime committed outside of said territorial district.

Randolph & Randolph, on the same side.

Fritz has acquired the title to the lands he now owns, under persons claiming through patents or grants made by the United States or the state of Mississippi, and his position is that the grant or patent of the land by the United States or the state of Mississippi passed to the patentees or the grantees and from them to him, the title to the bed of Horn Lake to the center, where he owns the land only on one side of the lake, and the whole lake, where he owns the land on both sides.

Horn Lake is a pond or lake, not navigable technically and not navigable as a matter of fact, except for the purpose of floating small boats or skiffs or rafts, and the like, in an ordinary stage of water. It is valuable only for the purpose of fishing, and Fritz was engaged in fishing and in interstate commerce in sending the fish out of Mississippi and selling them in Tennessee and elsewhere.

The grant of the United States of land fronting on a stream of water, according to the rule adopted in disposing of the public lands, passed all the United States owned in the land and the water to the center of the stream of water. Railroad Co. v. Schurmier, 7 Wall., 272; Hardin v. Jordan, 140 U.S. 371; Mitchell v. Smale, 140 U.S. 406; Kean v. Calumet Canal & Improvement Co., 190 U.S. 452; Jeffries v. East Omaha Land Co., 134 U.S. 178; 2 Farnham on Waters & Water Rights, sec. 418; Hardin v. Shedd, 190 U.S. 519; Firwan v Murphy, 109 F. 275, 279; Pere Marquette Boom Co. v. Adams, 44 Mich. 403; Moore v. Robbins, 96 U.S. 530; Lamprey v. State, 52 Minn. 181 (53 N.W. 1139, and 18 L. R. A., 670).

The grants by the United States and the subsequent vendors of the fractional sections or pans of sections fronting on Horn Lake passed title, as we have stated, to the center of the lake, under the ordinary rule, or, according to the rule adopted in Indiana, to enough land covered by water, when added to the dry land, to make up the full area of the designated legal subdivision. Tolleston v. State, 141 Ind. 197; Kean v. Robey, 145 Ind. 221; Kean v. Calumet Canal & Improvement Co., 190 U.S. 452; Clute v. Fisher, 65 Mich. 46; Towell v. Etter, 69 Ark. 34; Jeffries v. East Omaha Land Co., 134 U.S. 176; Cragin v. Powell, 128 U.S. 691.

The rule was recognized and applied by Chief Justice Sharkey in Morgan v. Reading, 3 Smed. & M., 399, to the Mississippi river, and is supported by the authorities. 2 Farnham on Waters & Water Rights, sec. 413, p. 1415, and 3 Ib., sec. 852, p. 2509, sec. 861, p. 2524, and sec. 866, p. 2528; Lembeck v. Nye, 47 Ohio St. 336; Smith v. City of Rochester, 92 N.Y. 463; Lamprey v. State, 52 Minn. 181 (53 N.W. 1139, and 18 L. R. A., 670); Cobb v. Davenport, 32 N. J. Law Rep., 369; Rice v. Ruddiman, 10 Mich. 125; Ridgeway v. Ludlow, 58 Ind. 248; Governeuer v. National Ice Co., 134 N.Y. 355 (31 N. E. Rep., 365); Kirwan v. Murphy, 109 F. 275.

The common law of England was adopted as a part of the law of Mississippi, and where not unsuited to the condition of the people, or repugnant to the constitution or the spirit of the government, or changed by statute, remains in force. Noonan v. Mississippi, 1 Smed. & M., 562; Hemingway v. Scales, 42 Miss. 1; Holman v. Bennett, 44 Miss. 322.

In Morgan v. Reading, 3 Smed. & M., 366, where the Mississippi river was in question, it was held that by the common law and the law of Mississippi the owners of the soil on the banks of fresh-water rivers, whatever their magnitude, have the exclusive proprietary right therein to the middle of the stream, subject only to the right of passage thereon as a highway, where the stream admits of it, and that the acts of congress making the river a common highway, and forever free to the citizens of the United States, gave an easement over the river only, and did not alter the rule of the common law as to the banks of the river or the rights of the owners of the soil therein.

It was held further that the banks of a stream not technically navigable are private property subject to the exclusive appropriation of the owner, and are not subject to the use of the public, although the river itself be a public highway, the use of which may not be interrupted, even by the owner. Whether the exclusive right of use by the owner of the soil extends beyond low water mark on the Mississippi river, the court left undecided.

In the Steamboat Magnolia v. Marshall, 39 Miss. 110, that question was decided. It was held that the Mississippi river is not, above tide water, a navigable stream in the technical sense of that term, and is in all respects subject to the rules of the common law regulating the rights of the public and of riparian proprietors in fresh-water streams capable of being navigated.

The authority of Morgan v. Reading and the Steamboat Magnolia v. Marshall was recognized in N. O., M. & C. R. R. Co. v. Frederick, 46 Miss. 9, 10, and the first case was cited in Boom Co. v. Dixon, 77 Miss. 593, as authority.

The law being thus established, Fritz claims he has title to the bed of Horn Lake, and the fight to take fish from it as his private property, and that the state or the public has no interest in the land or the water, and no right to direct or control him in the use of either. The lake is not navigable in any sense. Gaston v. Mace, 33 W.Va. 14 (10 S. E. Rep., 60; 25 Am. St. Rep., 862); Burke Co. Commissioners v. Catawba Land CO., 116 N.C. 731 (21 S. E. Rep., 941).

Chief Justice Sharkey, in his opinion in Morgan v. Reading, stated that the riparian owner owned the fish in nontidal rivers, or rivers not navigable, and that such right extended to the middle of the river, where he owned on one side, and referred to Adams v. Pease, 2 Conn. 481; Ingraham v. Wilkinson, 4 Pick. (Mass.), 968; Commonwealth v. Chapin, 5 Pick., 199, as authority.

In determining Fritz's title to the soil of Horn Lake, and his right to take the fish from it, the court is not concerned 'with the question of the navigability in fast of the lake, or the right of floating in the public, or any adjacent proprietor or other portions of the lake. These rights have nothing to do with the title to the soft or the right to take the fish. They exist independently of each other. 1 Farnham on Waters & Water Rights, secs. 231 and 28g, p. 119; Gould on Waters, sees. 55m, 63, 110, and 196; Magnolia v. Marshall, 39 Miss. 110.

It has been frequently decided that the right to navigate a nontidal water does not include the right to take fish from such water, and that such right belongs to the owner of the. soil under the water. 2 Farnham on Waters & Water Rights, sec. 368b, pp. 1364, 1365; Smith v. Andrews Law Rep., 9 Chy., 693; Leconfield v. Lonsdale, Law Rep., 5 Common Pleas., 665.

William Williams, and R. L. Dabney, contra.

Horn Lake has a pass into the Mississippi river, both in Tennessee and in Mississippi, through which fish can freely pass, and even steamboats in high water. As to whether this state of facts makes it a public water, see 13 Am. & Eng. Ency. Law (2d ed.), 568 et seq. Now if this is not a private pool, Fritz cannot take fish on his own land in violation of the game and fish laws. On this proposition, see the authority above cited and 14 Am. & Eng. Ency. Law (2d ed.), beginning on p. 661.

Do the ordinances under consideration, and the act of the legislature authorizing the board to pass them, violate that clause of both state and federal constitutions which forbids the taking of private property without due process of law?

A complete answer to this question is found in the case of Lawton v. State, 159 U.S. 136.

The case of Greer v. Connecticut, 161 U.S. 519, is on the constitutionality of a law prohibiting the shipping d game out of the state. And while our ordinance does not deal with this subject, the case goes so fully into the question of the right of the state to protect its fish and game that many parts of the opinion are in point, especially as the petition in this case charges that the interstate commerce law is violated by our ordinances.

OPINION

COX, J.

Louis Fritz was arrested on a charge of violating an ordinance of the board of supervisors of DeSoto county which prohibited the catching of fish in any lake or stream in said county with any seine or net more than seventy-five feet in length or more than six feet in depth or that has smaller meshes than one inch....

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