Krenz v. Nichols

Citation197 Wis. 394,222 N.W. 300
PartiesKRENZ v. NICHOLS.
Decision Date04 December 1928
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from a judgment of the County Court for Winnebago county; D. E. McDonald, County Judge. Modified and affirmed.

Action by George R. Krenz against Ralph Nichols. From the judgment, both parties appeal.--[By Editorial Staff.]

Action begun May 1, 1928. Judgment entered July 2, 1928. The plaintiff alleged that he was the owner of a muskrat farm, duly licensed pursuant to section 29.575 of the Statutes, and that in violation of his rights the defendant trespassed thereon and caught a muskrat, and threatened to continue such trespasses, and prayed relief that an injunction issue against the defendant.

The defendant admitted that he caught a muskrat on the alleged farm, and that he proposed to continue trespassing thereon and catching muskrats. He alleged that the place where he trespassed was overflowed lands and a part of the Fox river, and that what he did was within his rights as a navigator of such river. He further alleged that section 29.575 is wholly invalid.

The case was tried without a jury, and the court found in substance that the defendant was guilty of unlawful trespass, and entered its judgment enjoining him from further trespass. The court also found and adjudged that section 29.575 is void and of no effect. Both parties appeal from such judgment.

There is no dispute on the findings of fact of the county court. The exceptions taken are from the conclusions of law. The county court's findings of fact are in substance as follows: That the plaintiff is the owner of 100 acres of land adjoining the Fox river in Winnebago county; that the defendant entered upon said property with his boat, for the purpose of trapping muskrats, and did trap muskrats thereon; that the owner of the lands was licensed pursuant to section 29.575, Stats., to operate a fur farm on said lands; that such lands were adjacent to the Fox river, a navigable stream, and that the lands were overflowed by water most of the time, and some of the land all of the time; that the muskrats build their houses out of bog and dirt obtained from the land; they live in watery places and cannot live where there is no water; the houses are built by the muskrats themselves, and the tops of the houses extend above the water; that, in order to trap muskrats, a trap must be used, which is held by a chain to a stake driven into the ground, and the trap is usually placed under the water; that the plaintiff has expended considerable money in improving his land, by digging canals through it for the purpose of raising muskrats; that at the time the defendant trapped the muskrat on the plaintiff's land the land was covered with water, which was navigable; the trapping was not done in the canals or ditches, but along the bank of the Fox river; at the time the muskrat was caught, it was the statutory open season for the trapping of muskrats; muskrats are migratory animals; one year they may build their houses in one place, and the next year they may build their houses in another place; they multiply very rapidly, and the young build their homes wherever it seems best to them; at the point where the trapping was done by the defendant the Fox river is an inland navigable stream; and in trapping muskrats the land below the water must necessarily be used.

As conclusions of law the court held: That the plaintiff, as a riparian owner of land bordering on the Fox river, owned the land to the thread of the stream; that wild game, including muskrats, inhabiting the premises of the plaintiff, is owned by the state of Wisconsin, in trust for the benefit of all the inhabitants, subject only to the right of the state to regulate the capture thereof; that neither the Legislature of the state of Wisconsin nor the conservation commission has any power or right to exclude the general public from navigation, hunting, or fishing in the waters above the land owned by the plaintiff; that the plaintiff has the right to protect his land against the public from trapping of muskrats; that the Legislature of the state of Wisconsin and the conservation commission have no right or power to grant an exclusive right to any individual to trap in any of the navigable waters of the state; that the license issued to the plaintiff for a fur farm, pursuant to section 29.575, Stats., is wholly void and of no effect; that the plaintiff cannot exclude the defendant, or bar him from his premises, nor prevent him from trapping muskrats by virtue of said fur farm license; and that the plaintiff in this action is entitled to an injunction against the defendant, restraining him from using any portion of the plaintiff's land for the purpose of trapping muskrats.

Judgment was entered accordingly.

Barber & Keefe, of Oshkosh, for plaintiff.

L. W. Hull, of Oshkosh, for defendant.

CROWNHART, J.

Chapter 29, of the Statutes, entitled “Fish and Game,” deals generally with the propagation, hunting, trapping, fishing, and disposition of such fish and game in the state of Wisconsin. This chapter, comprising 63 sections, legislates in detail as to all the various matters connected with the subject. Its enforcement and administration is put under the jurisdiction of the conservation commission. The conservation commission was created by section 23.09 of the Statutes, to provide an adequate and flexible system for the protection, development, and use of forests, fish, and game, lakes, streams, plant life, flowers, and other outdoor resources in the state of Wisconsin, and is given very broad and comprehensive powers in regard thereto.

Section 29.575 provides for the licensing and regulation of muskrat farms. Section 29.576 provides for the regulation and operation of beaver farms, and section 29.577 provides for the regulation of other fur animal farms, including mink, otter, marten, fisher, raccoon, and skunk. Section 29.575 is the sectionaffecting this action, and is printed in the margin.1 The other two sections dealing with fur-bearing animals are of very similar import. Section 29.02 provides:

(1) The legal title to, and the custody and protection of, all wild animals within this state is vested in the state for the purposes of regulating the enjoyment, use, disposition, and conservation thereof.

(2) The legal title to any such wild animal, or carcass or part thereof, taken or reduced to possession in violation of this chapter, remains in the state; and the title to any such wild animal, or carcass or part thereof, lawfully acquired, is subject to the condition that upon the violation of any of the provisions of this chapter relating to the possession, use, giving, sale, barter, or transportation of such wild animal, or carcass or part thereof, by the holder of such title, the same shall revert, ipso facto, to the state. In either case, any such wild animal, or carcass or part thereof, may be seized forthwith, wherever found, by the state conservation commission or its deputies.”

The plaintiff's position is that section 29.575 is a valid law, and that the acts of the defendant were in violation thereof, and he claims he has title to the soil to the thread of the stream, and any interference with that soil or land adjacent thereto constitutes a trespass.

The defendant contends that section 29.575 is void and of no effect, and that the defendant has a right to hunt and fish, including the taking of fur-bearing animals, in the navigable streams of the state as incidental to the rights of navigation; that so long as he remains in the boat which he navigates on the waters, in any customary or usual manner, and takes wild game, including fur-bearing animals and fish, from such waters, he is within his rights, subject only to the right of the state of Wisconsin to regulate the time and manner of taking such animals.

[1][2][3] It is familiar and oft-quoted principle of law that the Legislature, as the direct representative of the people, has all powers of legislation not limited by the federal or state Constitution. No specific provision of either Constitution is pointed out by the defendant against which the act offends. All the authorities are to the effect that the state holds title to the wild animals in trust for the people. No individual has any title to any such animal until he reduces it to lawful possession. As trustee for the people, the state may conserve wild life and regulate or prohibit its taking in any reasonable way it may deem necessary for the public welfare, so long as it does not violate any organic law of the land.

There is quite a common belief prevalent that wild animals are of common right open to capture and possession by the public, and restrictions thereto must be limited and reasonable. This belief, no doubt, comes as a heritage of pioneer days, when no necessity existed for such restrictions, and when the people were largely dependent upon hunting and fishing; but that time has long since passed. It is now generally recognized that valuable wild animal life would soon be exterminated if the state should fail to conserve it and aid in its reproduction. Whenever the state has done so without trenching on private rights protected by the Constitution, such acts have been almost uniformly upheld. To that end legislation has been held valid, regulating the taking of fish from a public lake and providing for the destruction of nets used contrary thereto, Bittenhaus v. Johnston, 92 Wis. 588, 66 N. W. 805, 32 L. R. A. 380; prohibiting the shipment or sale of more than a stated quantity of fish at one time, although the same has been legally taken, State v. Nergaard, 124 Wis. 414, 102 N. W. 899; prohibiting the possession...

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    ...271 N.W.2d 69 (1978) (city resolution repudiating chemical treatment of city lakes inconsistent with state statutes); Krenz v. Nichols, 197 Wis. 394, 222 N.W. 300 (1928) (state's broad authority to regulate hunting and disposition of fish and s 22. These cases do not address the interaction......
  • Lac Courte Oreilles Band of Indians v. Wisconsin, 74-C-313-C.
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    ...is not contrary to any provision of the federal or state constitutions." Id. at 257, 38 N.W.2d at 715 (quoting Krenz v. Nichols, 197 Wis. 394, 402, 222 N.W. 300, 303 (1928)). Rather than ground its holding solely on the state's police power, however, the court went on to hold that trapping ......
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    ... ... life and forests would soon be exterminated if the State ... should fail to conserve these things and give aid to their ... reproduction. Krenz v. Nichols, 197 Wis. 394, 222 ... N.W. 300, 62 A.L.R. 466 ... [247 ... Ala. 198] There will be found in Title 8, § 1 et seq., Code ... ...
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