Gratz v. McKee

• Decision Date: 28 April 1919
• Docket Number: 5285.
• Citation: 258 F. 335
• Parties: GRATZ v. McKEE et al. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

258 F. 335

GRATZ v. McKEE et al. ^[1]

No. 5285.

United States Court of Appeals, Eighth Circuit.

April 28, 1919

S Mayner Wallace and Shepard Barclay, both of St. Louis, Mo for plaintiff in error.

Frank H. Sullivan, of St. Louis, Mo. (Hoffman & Hoffman, of Sedalia, Mo., and Jones, Hocker, Sullivan & Angert, of St Louis, Mo., on the brief), for defendants in error.

Before SANBORN and CARLAND, Circuit Judges, and MUNGER, District judge.

CARLAND Circuit Judge.

The plaintiff in error (hereafter plaintiff) sued the defendants in error (hereafter defendants) to recover the value of 307 1/2 tons of mussel shells alleged to have been taken from the lands of plaintiff's assignors in Pemiscot county, Mo and converted to defendants' use. A second count of the complaint alleged that the shells were a part of the realty and were dug up therefrom. The language used in the second count was for the purpose of bringing the case within the provisions of section 5448, Rev. Stat. Mo. 1909, allowing treble damages in certain cases for digging up and carrying away any substance or material, being a part of the realty. The trial court, at the close of the evidence, directed a verdict for the defendants, for the reason that the plaintiff had shown no title to the shells in his assignors.

Upon the question of title the evidence tended to show that in the years 1913 and 1914 the St. Louis Union Trust Company owned approximately 1,314 acres of land in Pemiscot county, Mo., in township 20, range 12; that the Himmelberger-Harrison Lumber Company owned 125 acres in the same county, in township 20, range 11; that Little river is a stream about 200 miles in length, flowing in a southwesterly direction through a portion of the above-described lands. The river empties into the St. Francois river, and thus finds its way to the Mississippi river and the Gulf of Mexico. The stream is nonnavigable, except in a very restricted sense. Near Wardell, located near the center of section 25, township 20, range 11, of the lands aforesaid, prior to the years 1913 and 1914, there came or grew in the bed of Little river mussels. The shells of live mussels are valuable for use in making so-called pearl buttons. The mussel is boiled for the purpose of removing the meat from the shell. The fresh water mussel is one of the group of mollusks. It is a shellfish capable of locomotion, but disinclined to exercise this power if its supply of food is sufficient where it is. It sometimes floats upon the water, but usually lives in the beds of streams partially covered with mud. The defendants took from the bed of Little river, at a place where plaintiff's assignors were the owners of both banks of the stream, sufficient mussels to produce the number of tons of shells sued for. The plaintiff, by assignment from the owners of the land, became the owner of the claim for damages arising from the taking of the mussels.

So far as the second count of the complaint is concerned, we are of the opinion that it needs no consideration, for the reason that in no view of the case could the live animal called 'mussel' be deemed real estate, any more than a ground hog. The question for decision is: Did the owners of the land through which Little river flowed own these shellfish, and hence their shells, so that the plaintiff, as assignee, can maintain an action for their conversion? It appears that the mussels were in their natural state; that is, the owners of the land through which the stream flowed had taken no measures to reduce them to private ownership, nor were they planted where they were found by such owners. As Little river is nonnavigable, we assume that the owners of both banks thereof also owned the bed of the stream. The flowing waters of the stream, however, were public waters, and fish, whether swimming or shell, found therein, could not become, under the laws of Missouri, the subject of private ownership. Sections 6508 and 6551, Rev. Stat. of Missouri 1909, read as follows:

Section 6508: 'The ownership of and title to all birds, fish and game, whether resident, migratory or imported, in the state of Missouri, not now held by private ownership, legally acquired, is hereby declared to be in the state, and no fish, birds or game shall be caught, taken or killed in any manner or at any time, or had in possession, except the person so catching, taking, killing or having in possession shall consent that the title of said birds, fish and game shall be and remain in the state of Missouri, for the purpose of regulating and controlling the use and disposition of the same after such catching, taking or killing. The catching, taking, killing or having in possession of birds, fish or game at any time, or in any manner, by any person, shall be deemed a consent of said person that the title of the state shall be and remain in the state, for the purpose of regulating the use and disposition of the same, and said possession shall be consent to such title in the state.'

Section 6551: 'It is hereby declared unlawful for any person to engage in what is commonly known as 'pearl fishing' in any of the waters of this state at any time during the months of March, April, May and June. Any person violating the provisions of this section shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than twenty-five dollars nor more than one hundred dollars for each offense.'

At the time section 6508 was enacted neither plaintiff's assignors, nor any other private individual or corporation had legally acquired an ownership of the mussels in question. It is no doubt true that the above sections were enacted for the purpose of regulating the capture and sale of the animals therein mentioned. We also understand that 'pearl fishing,' as used in section 6551, refers to the capture of freshwater mussels such as are described in this case. It therefore appears that the state of Missouri claims the right of regulating the capture of mussels in the public waters of said state. To hold that plaintiff's assignors owned the mussels in controversy would be to decide that said assignors had the exclusive right of fishing in the waters of Little river, where these mussels were found. Such a grant would not be presumed, in the absence of express words, in a grant conveying the exclusive right of fishery. It is very doubtful, also, as to whether any such grant would be valid under the Constitution and laws of Missouri. In the case of McKenzie's Executors v. Hulet, 4 N.C. 613, it was decided that a grant of land covered by an arm of the sea only at high water, would entitle the grantee to an action of trespass for taking oysters from the rocks within the grant. The court also...