Herrin v. Sutherland

• Decision Date: 24 November 1925
• Docket Number: 5806.
• Citation: 241 P. 328,74 Mont. 587
• Parties: HERRIN v. SUTHERLAND.
• Court: Montana Supreme Court

241 P. 328

74 Mont. 587

HERRIN v. SUTHERLAND.

No. 5806.

Supreme Court of Montana

November 24, 1925

Appeal from District Court, Lewis and Clark County; A. J. Horsky Judge.

Action by H. J. Herrin against William Sutherland. Judgment for plaintiff, and defendant appeals. Affirmed.

The complaint contains eight causes of action, in the first of which the plaintiff alleges himself to be the owner in fee and in the actual possession of a large tract of land in Lewis and Clark county, abutting for several miles on both sides of the Missouri river, a nontidal but navigable stream. It is then alleged that about the 18th of September, 1924 the defendant, being engaged on a fishing and hunting expedition, rowed a boat down the channel of the stream between plaintiff's lands "abutting on each side thereof, and intermittently cast for and caught fish in said channel, shot at and killed wild ducks floating thereon or in flight thereover, in violation of plaintiff's right of possession and control of the channel of said stream, to plaintiff's damage in the sum of $10;" that on that day and while on said fishing and hunting expedition the defendant rowed the boat to the west bank of the stream, and there moored the same above the ordinary low water mark of the stream, and thereafter, while fishing in the river "walked and tramped along said bank on the land of plaintiff, above the ordinary low water mark and in and above the ordinary high water mark, and between said water marks tramped upon and destroyed native and planted grasses upon said land," in violation of plaintiff's rights and to his damage.

In the second cause of action plaintiff alleges his ownership and actual possession of what he terms his "home ranch," which ranch is devoted to the raising of hay and grain and the breeding and raising of sheep and cattle. There flows through this ranch a small unnavigable stream known as Fall creek, about 15 feet in width and about 2 feet deep which stream is inhabited by game fish. That on or about the 3d of August, 1924, the defendant entered the stream at its mouth, where it empties into the Missouri river, "and waded up and down the same fishing with a line and rod, in violation of plaintiff's right to the undisturbed, peaceful, and exclusive enjoyment of said stream for fishing and other purposes, to plaintiff's damage in the sum of $10;" and when not wading in the channel of the stream the defendant walked up and down the banks thereof, tramping on and destroying hay growing on said banks, and breaking and cutting willows growing along the banks, to plaintiff's damage.

The third cause of action also relates to the home ranch, it being alleged that on the 18th of September, 1924, the defendant, while engaged in hunting ducks and other water fowl and other migratory game birds, and while standing on the lands of another, repeatedly discharged a Winchester shotgun at water fowl in flight over plaintiff's said premises, dwelling house and over his cattle, "thereby preventing plaintiff from the quiet, undisturbed, peaceful enjoyment of his dwelling house, ranch, and property, to plaintiff's damage in the sum of $10."

In the fourth cause of action the plaintiff alleges ownership and actual possession of a ranch known as the Sentinel Rock place, which is devoted to the growing of grazing hay and grain and live stock; "that plaintiff has fully inclosed and surrounded said tract of land with a post and barbed wire fence about 5 feet high;" that on or about the 18th of September, the said defendant, while hunting and in pursuit of prairie chicken, blue grouse, and other upland game birds, and without consent or authority from plaintiff, broke the said fence and entered in and upon the said tract of land and tramped over and across the same, shooting said birds and tramping down and destroying grain standing on said tract awaiting harvest, to plaintiff's damage; that upon leaving said inclosed tract of land the defendant tramped and hunted over an uninclosed and open tract of land belonging to plaintiff, then in plaintiff's possession, and tramped down and destroyed natural grasses growing thereon, fit for the grazing of live stock, to plaintiff's damage.

The fifth cause of action likewise relates to the Sentinel Rock ranch, which the plaintiff alleges is inclosed on three sides by a barbed wire and post fence 5 feet high, and he has posted upon said fence and upon said land at the boundary thereof, in conspicuous places, printed and painted signs and warnings in the English language, reading as follows, "No hunting allowed on these premises," or, "No trespassing allowed on these premises"; that notwithstanding said inclosure and fence and warnings so posted, the defendant, while hunting, and in the pursuit of upland game birds, and on the 18th of September, 1924, broke, cut, and tore down a panel of fence and entered in and upon the said inclosed land and tramped and destroyed grain and grasses standing thereon, to plaintiff's damage.

In the sixth cause of action it is alleged that there is a tract of open public domain lying on the east of the Sentinel Rock ranch, which consists of a hilly and mountainous grazing country, frequented and inhabited by upland game birds, and there is no way of reaching the same except across said ranch, and that on the 19th of September, 1924, the defendant broke the fence surrounding and entered upon the Sentinel Rock ranch and walked upon and over the same for the purpose of entering upon the said public domain, and in so doing he tramped upon hay growing on the ranch, and destroyed the same, to plaintiff's damage.

In the seventh cause of action it is asserted that plaintiff is and at all times mentioned in the complaint was the owner and in the actual possession of a tract of land "entirely surrounding a small pond and a small stream flowing therein, and a small stream flowing from said pond; that said pond and the stream serving the same are frequented and inhabited by native mountain trout and other game fish, fed and protected by plaintiff"; that on the 3d day of August, 1924, and while engaged in fishing, the defendant, with rod, line, and bait, angled in said pond and streams and caught and carried away and converted to his own use a great number of fish, to plaintiff's damage.

In the eighth cause of action the plaintiff alleges that during the year 1924 certain migratory and wild game birds, to wit, canvasback and teal ducks, laid their eggs in irrigating and other ditches and water courses on plaintiff's home ranch and there hatched and raised their young; that plaintiff protected the game birds by killing predatory animals which are accustomed to attack the same, and by throwing out grain for food, and the ducks frequented and stayed in and around the water courses on plaintiff's lands during the year 1924; that on or about the 18th of September, 1924, the defendant entered upon plaintiff's land and by shooting with a shotgun suitable for the hunting of ducks, frightened them into flight, and while they were in flight shot and killed a number of them, which he seized, carried away, and converted to his own use, to plaintiff's damage.

After defendant's general demurrer to the several causes of action was overruled he declined to answer, and his default was entered. Upon the suggestion of counsel for plaintiff that only nominal damages would be demanded, the court rendered judgment in favor of the plaintiff for damages in the sum of $1 upon the eight causes of action collectively, with costs of the action. From this judgment the defendant has appealed.

G. S. Frary, of Great Falls, for appellant.

E. G. Toomey, of Helena, for respondent.

CALLAWAY, C.J. (after stating the facts as above).

1. First cause of action. At the outset it is conceded that the Missouri river is a navigable stream; also that the plaintiff does not own any land beyond low water mark. Nevertheless he claims that, as he exercises complete dominion to the low water mark on both sides of the stream, as an incident to that right he may control the use of the channel of the stream for all purposes except navigation. This right, he says, is based upon the common law of England; that law "so far as it is not repugnant to or inconsistent with the Constitution of the United States or the Constitution or laws of this state, or of the Codes, is the rule of decision in all the courts of this state." Section 5672, R. C. 1921. The common law of England means that body of jurisprudence as applied and modified by the courts of this country up to the time it became a rule of decision in this commonwealth; that time began with our first territorial Legislature. Ætna Accident & Liability Co. v. Miller, 54 Mont. 377, 170 P. 760, L. R. A. 1918C, 954; Gas Products Co. v. Rankin, 63 Mont. 372, 207 P. 993, 24 A. L. R. 294; State ex rel. Ford v. Young, 54 Mont. 401, 170 P. 947.

At an early date in England title to the land beneath the sea and tidal rivers was conceived to be in the king, whereas title to the land under inland waters where the tide did not ebb and flow was in the private riparian proprietors. Originally the right to fish in the sea and tidal rivers was held to be the exclusive prerogative of the king as lord of the soil (Royal Fishery of the Banne, Davies Rep. 149; Hale, De Juris Maris, 18), but by a process of legal evolution this right came to be regarded as held in trust for the public; and the general rule now is that in tidal waters all have an equal right to fish. In nontidal streams the exclusive right of fishery is in the riparian proprietors of the soil. See 27 Harvard Law Review, 750; 2 Farnham on Waters, § 368; note to Willow River Club v. Wade, 42 L. R. A. 305. The real distinction between the two classes of...