Milton v. State

• Decision Date: 10 May 1920
• Docket Number: 387
• Citation: 221 S.W. 461,144 Ark. 1
• Parties: MILTON v. STATE
• Court: Arkansas Supreme Court

221 S.W. 461

144 Ark. 1

MILTON v. STATE

No. 387

Supreme Court of Arkansas

May 10, 1920

Appeal from Cross Circuit Court; R. E. L. Johnson, Judge; reversed.

Judgment reversed and cause remanded.

Killough Lines & Killough, for appellant.

1. The court erred in holding the lake in question to be included in the term "waters of this State." This was a private lake or pond, and the State had no right or title to the fish in a private lake or pond and no right to regulate the taking of fish in such. Especially is this so where the lake is in no way connected with any other body of water. The fish were a product of the lands owned by the appellant's lessors and belonged to them absolutely as their individual property and appellants were not guilty of unlawful fishing under Acts 1915, p. 464. 140 U.S. 414; 190 Id. 452; 71 Ark 390; 76 Id. 44; 35 N.Y. 454; 19 Cyc. 999; 43 Ill. 477; 92 Am. Dec. 146; 11 R. C. L. 1044; 11 R. C. L. 1017 and notes; 60 L. R. A. 512; 59 N.H. 256; 47 Am. Rep. 199; 19 Cyc. 1014; 31 N.E. 115.

2. Any attempt by the State to control appellant's right to the fish in this privately owned lake is a violation of the Constitution of the United States and the State. 113 U.S. 27; 73 Ark. 236; 75 Id. 542.

John D. Arbuckle, Attorney General, and J. B. Webster, Assistant Attorney General, for appellee.

Appellants were convicted under Acts 1915, No. 124, § 18. The State has general title to and is the owner of, at least for the purpose of regulation and control, all fish within its borders wherever situated. 73 Ark. 236; 161 U.S. 519; 56 Ark. 270; 110 Id. 206; 117 Id. 193; 88 Id. 571.

OPINION

McCULLOCH, C. J.

Appellant is charged with the offense of unlawful fishing, in violation of the statute which makes it unlawful to fish with a seine, net, trap or other device of that character "in any of the waters of this State." Acts 1915, p. 464.

The case was tried before the court sitting as a jury on an agreed statement of facts, in which it was shown that appellant put out nets in a certain inland lake for the purpose of catching fish. The description of the body of water in which the fishing was done and the circumstances and method thereof is set forth in the agreed statement of facts, as follows:

"It is further agreed that said lake is a body of water about one mile and a half or two miles long and of an average of about one hundred yards in width. That said lake is not a meandered body of water, and that same has been duly surveyed and is wholly the property of Press Cogbill and Wess Porter.

"It is further agreed that said lake is entirely surrounded by cleared and cultivated land and is all under fence.

"It is further agreed that said lake is in no way connected with any navigable stream, or any other stream and that no water from a navigable stream or any other stream runs into said lake except when a break in the levee occurs, and that no water has been in such lake from navigable stream since the year 1913, caused by a break in the levee.

"It is further agreed that defendants for the years 1918 and 1919 and for many years prior thereto, have rented said lake and paid annual rental therefor to said Wess Porter and Press Cogbill, and that the rent notes for the year 1918 are exhibited to the court.

"It is further agreed that said Press Cogbill and Wess Porter have for more than seven years last past paid taxes, State and levee, upon the land occupied by said lake."

The question presented is whether or not the body of water described is such as falls within the designation of the statute, "the waters of this State." We interpret the language of the agreed statement of facts to be, that Cogbill and Porter are the owners as tenants in common of the lands surrounding the lake, and are not separate owners. In other words, we find that the lake in question is an inland body of water wholly within the boundaries of certain owners, who hold title as tenants in common, and that it has no outlet or connection with any other body of water. In view of these facts, we are of the opinion that it does not fall within the terms, "in any of the waters of this State."

The purpose of the statute was to protect and preserve fish in the public waters or such privately owned waters as were connected with other streams or bodies of water, and not to a private pond or lake wholly on the premises of an owner or common owners, which is not connected in any way with another stream or body of water. The former statute of this State regulating the taking of fish (Kirby's Digest, section 3600), contained an express provision exempting from the application of the statute waters "wholly on the premises belonging to such person or persons using such device or devices." This provision was omitted from the statute now in force, but, as before stated, we think that the term, "in any of the waters of this State," when considered in the light of the obvious design of the statute, excludes privately owned waters having no connection with other streams.

There is an instructive opinion rendered by the Supreme Court of New Hampshire, in the case of State v. Roberts, 59 N.H. 256, 47 Am. Rep. 199, a case involving the interpretation of a statute against fishing in public waters, where the court said:

"But while the Legislature has power to regulate and limit the time and manner of taking fish in waters which are public breeding places or passageways for fish, it has not assumed to interfere with the privileges of owners of private ponds having no communication through which fish are accustomed to pass to other waters. Such ponds, whether natural or artificial, are regarded as private property, and the owners may take fish therefrom whenever they choose, without restraint from any legislative enactment, since the exercise of this right in no way interferes with the rights of others."

It is unnecessary in the present case to pass on the question as to whether or not the Legislature has the power to regulate fishing in private ponds wholly on the premises of an owner, and we content ourselves merely by deciding the question as to whether or not such an attempt has been made in this statute.

In the case of People v. Bridges, 31 N.E. 115, 142 Ill. 30, 16 L. R. A. 684, the Supreme Court of Illinois dealt with a statute of that State prohibiting the use of seines for catching fish "upon any of the rivers, creeks streams, ponds, lakes, sloughs, bayous and other water courses," in its application to a small inland lake near the Sangamon River, it being shown that there was a low place between the river and lake, by which, in times of high water frequently occurring, a passageway for fish was afforded. The court upheld the validity of that statute, but did so on the distinct ground that the statute...