Fritz v. State

• Decision Date: 04 January 1909
• Citation: 115 S.W. 385,88 Ark. 571
• Parties: FRITZ v. STATE
• Court: Arkansas Supreme Court

115 S.W. 385

88 Ark. 571

FRITZ v. STATE

Supreme Court of Arkansas

January 4, 1909

Appeal from Crittenden Circuit Court; Frank Smith, Judge; affirmed.

Judgment affirmed.

Randolph & Randolph (of Memphis, Tenn.), and H F Roleson, for appellant.

As to the first case, Fritz, having acquired title to the lands while the common-law right of fishery was the law of the State, he thereby acquired, as a part of, and appurtenant to his grant, the right to take fish from the lands, and also the right to ship them from the State; and the act of the Legislature prohibiting the shipment of fish from the State was, as to him, unconstitutional and void.

As to the second case, the court should have declared the law to be that the owner of opposite shores of an inland unnavigable lake, who acquired title thereto while the common-law respecting the rights of fishing was in force, acquired as a part of the grant of the lands, as privileges and appurtenances thereof, the right to take fish therefrom by net, and that the act of the Legislature was unconstiutional and void as to appellant. The fish were a part of the land or the produce of the land, owned by appellant, and belonged to him absolutely as his individual property. Treaty between United States and Republic of France, April 30, 1803, art. 3 Kirby's Digest, p. 171; Kirby's Digest, p. 174 (admission of Arkansas into Union); Id. p. 177; Id. § 623; 8 Wheaton, 1; 23 Minn. 144; 44 Mich 274; 13 How. 518, 566, S. C. 18 How. 432-433; 5 Wall. 737; 95 U.S. 517; 18 How. 173; 179 U.S. 223; Rev. Stat. U.S. § 2395, et seq.; 3 How. (U.S.), 663; 7 Wall. 270; Rev. Stat. U.S. §§ 2476, 2478; 1 Lester's Land Laws, 714; 134 U.S. 178; 140 U.S. 414; 190 U.S. 452; 109 F. 354; 69 Ark. 39; 71 Ark. 390; 76 Ark. 44; Gould on Waters, § 76. The act of Congress of September 28, 1850, vested title in the State to all the swamp and overflowed lands in the State then remaining unsold, and it remained only to ascertain the particular lands included in said grant, and, when the selections were made, approved and patents issued, the State's title to the lands was perfect. Act of Congress, March 3, 1857; 11 U.S. Stat. at Large, 251; Rev. Stat. U.S. § 2484; 20 Ark. 100; Id. 237; 24 Ark. 431; 29 Ark. 56; 33 Ark. 833; 46 Ark. 17; 54 Ark. 251; 11 F. 389; 121 U.S. 488; 138 U.S. 134; 138 U.S. 573; 149 U.S. 79; 171 U.S. 93; 31 U.S. App. 731. In the absence of any reservation of title or interest by the United States in its patent or grant either directly to Fritz or his grantors, or by way of the Swamp Land Act of 1850 to the State and thence to Fritz or his grantors, the whole of the Government's title in the lands, whether in the lake or abutting thereto, passed absolutely by the patent, grant or act of Congress. Kirby's Digest, § 733; 128 U.S. 691; 44 Mich. 403; 52 Minn. 181; 190 U.S. 519; 96 U.S. 530; 109 F. 354; 209 U.S. 447. If the State acquired title under the Swamp Land Act, then its grant to Fritz or his grantors conveyed all the title to the land and lake that either the State or the United States ever had therein. 141 Ind. 197; 145 Ind. 221; 69 Ark. 341; 190 U.S. 518; 209 U.S. 447; 24 How. 41; 4 Mo. 342; 17 Johns. (N. Y.), 195; 134 N.Y. 355; 10 Mich. 125; 58 Ind. 248; 7 Wall. 272; 140 U.S. 406; Id. 371; 159 U.S. 87. The lands under the lake are therefore held and owned by Fritz as incidents of the grants of the lands outside of the lake or its meander lines. 128 U.S. 691; 17 Johns. 195. See also 20 Johns. 90; 32 N. Y. L. 369; 2 Conn. 481; Angell on Watercourses, §§ 11, 61-2, 65, 545-547; 5 Mason (U.S.), 191; 5 Paige Ch. (N. Y.), 137; Gould on Waters, § 79 et seq., and 182. As to what is included in the term "land," see Coke's Littleton, 19-20; 2 Blackstone's Com. ch. 2, *17, 18. And as to how rivers, lakes and ponds are considered in this country as to navigability and non-navigability, etc., see Angell on Watercourses, §§ 1-5, and 535-541; Gould on Waters, §§ 42, et. seq., 86 et seq., 110 et seq.; 3 Cates (Tenn.), 668; 69 S.W. 782; 53 Ark. 314, 33 W.Va. 14; 10 S.E. 60; 25 Am. St. Rep. 862; 116 N. Car. 731; 21 S.E. 941.

2. A fishery at common law was always regarded as a part of the landed estate. The State, as representative of the public, has no title to the fish in waters belonging to private individuals, and no right to regulate the taking or use of such fish. Where they are in a pond or stream of water which does not connect with any public water, the individual owner has the right to the fishing, without regulation by the public as to the manner in which he does the same. 2 Farnham on Waters and Water Rights, §§ 368c, 371, 373, 375, 378, 380, 382, 396, 397a, 398-9; 26 Wend. (N. Y.), 404; 33 N.Y. 472; 35 N.Y. 454; Gould on Waters (3 Ed.), § 46; 19 Cyc. 999, and cases cited. Where the title to small lakes and ponds has been retained by the State, the right of fishery is also retained; but where waters are private property, the fishery therein is private. In such case the only way whereby the State or public may acquire the right of fishery therein is by the exercise of the power of eminent domain upon making compensation. 3 App. Cas. 641; Ir. Rep., 8 C. L. 68; Ir. L. R., 23 Eq. 402; 68 Vt. 338; 33 L.R.A. 569; 35 A. 323; 43 Ill. 447; 92 Am. Dec. 146; 26 Can. S. C. 444; 47 O. St. 326; 8 L.R.A. 578; 21 Am. St. Rep. 686; Gould on Waters, § 46; 92 N.Y. 465; 134 N.Y. 355.

3. The rights of the owner of a stream extend as far as the boundaries of his land; and if he owns the soil on one shore of a non-navigable stream, his rights extend to the centre, the middle of the stream at low water mark being the limit or dividing line between owners of opposite shores, with respect to the right to fish from opposite banks. 2 Farnham on Waters and Water Rights, § 396; 3 Kent's Com. *p. 411-418, et seq. If the fish are confined in ponds or on private property, so that they can not escape, the title is in the owner of the pond, though it may be stocked at public expense. 2 Farnham on Waters, etc., § 397a; 67 N.H. 529; 64 N.J.L. 330. The mere fact that one who owns part of a pond does not own the whole thereof, and that there is nothing to prevent the fish from going over on the land of another, does not give strangers a right to fish over the lands of the owner of a part of the pond without his permission. 2 Farnham on Waters, etc., § 400; 162 Mass. 219.

4. Any attempt by the statutes upon which the indictments in these cases are based to curtail, limit, qualify or control appellant's right to the fish in the lake, his right to take, or the method of taking them by him, or his use or disposition of them after taking, is an infringement of his rights, privileges and immunities secured to him by the Constitution of the State and of the United States. 53 Ark. 490; 73 Ark. 236; 75 Ark. 542; Cooley's Const. Lim. (6 Ed.), 489, note 3; 113 U.S. 27; 118 U.S. 369.

5. If there is any law in this State whereby, under the agreed statement of facts, appellant may be held guilty of a violation thereof, punishable by law, such law is void as to him because it violates (a) that part of the Constitution of the United States which prohibits any State from passing any law impairing the obligation of contracts; (b) that part same Constitution which grants to Congress the exclusive right to regulate commerce; (c) that part same Constitution and 14th Amendment thereof securing to the citizens of every State the rights, privileges and immunities of citizens of the several States, and entitling them to the equal protection of the laws of every State, and (d) that part same Constitution and Amendment declaring that no person shall be deprived of liberty or property without due process of law. Such law is also in violation of art. 2, § 2, art. 2, § 8, art. 2, § 21, art. 2, § 22, art. 2, § 28, Const. Ark. (1874.)

William F. Kirby, Attorney General, for appellee; Brown & Anderson (of Memphis, Tenn.), and A. B. Shafer, of counsel.

The owner of land upon which is located a lake or stream which is not entirely upon the property of the landowner is subject to such rules and regulations as the Legislature may see fit to enact for the preservation of fish and game. Such owner has no such property in the fish found in such lake or stream as he has to the crops grown upon land. It has always been the law in this State that the title to fish and game is in the State as trustee for the public, and the State has the paramount right to make such rules and regulations in regard to fish and game as, in the opinion of the Legislature, is for the best interests of the public and for the preservation of such fish and game. 56 Ark. 267; 68 Ark. 487; 68 Ark. 555; 73 Ark. 248. It was manifestly the intention of the Legislature to provide a general system of laws for the preservation of fish and game within the State. Kirby's Digest, §§ 3598-3626. "Waters of this State" has been defined to mean "all streams, lakes, ponds, sloughs, bayous or other waters, wholly or in part within this State." Id. § 3605.

2. The mere fact that appellant owned the land on opposite sides of the lake does not bring appellant within the proviso to the act, excepting "waters wholly on the premises of such person or persons using such device or devices." Under the agreed statement of facts, the waters of Horseshoe Lake are not wholly on the premises of appellant. Its waters are therefore public. 96 Tenn. 681; 157 Pa. 208; 85 Mo. 543. And appellant's rights are subordinate to that of the State as representative of the public. 73 Ark. 248, citing 161 U.S. 519; 56 Ark. 267; 68 Ark. 867; 69 Ark. 555.

3. One can not acquire a complete property right in game so as to exempt him from the provisions of a State law enacted for the preservation of the game supply of that State for the use of its inhabitants....