Ohio Water Service Co. v. Ressler

• Decision Date: 24 January 1962
• Docket Number: No. 36917,36917
• Citation: 18 O.O.2d 243,173 Ohio St. 33,180 N.E.2d 2
• Parties: , 18 O.O.2d 243 OHIO WATER SERVICE CO., Appellee, v. RESSLER et al., Appellants.
• Court: Ohio Supreme Court

Page 33

173 Ohio St. 33

180 N.E.2d 2, 18 O.O.2d 243

OHIO WATER SERVICE CO., Appellee, v. RESSLER et al., Appellants.

No. 36917.

Supreme Court of Ohio.

Jan. 24, 1962.

Syllabus by the Court

1. Section 1533.32, Revised Code, requiring a license for taking or catching fish, applies only to the taking or catching of fish in waters of the state.

2. The words 'waters of the state' in Section 1533.32, Revised Code, mean public waters as distinguished from private waters.

3. The words 'waters of the state' in Section 1533.32 do not include a privately owned nonnavigable lake even though fish may freely swim back and forth between such lake and public waters or waters owned by others.

This cause originated with the filing of plaintiff's petition in the Common Pleas Court of Mahoning County seeking to enjoin defendants, as fish and game protectors of the state, from enforcement of fishing laws and fishing license requirements on Lake Evans, an artificial lake formed by a dam about a mile long and 50 feet high at its highest point.

The parties entered into a stipulation reading so far as pertinent:

'2. * * * [Plaintiff] has constructed and owns and operated various reservoirs for the impounding of water.

'3. Pine Lake is one such reservoir * * *.

'4. Lake Evans is one such reservoir * * *. [Plaintiff] constructed and owns the dam whereby said waters in Lake Evans are impounded.

'* * *

'7. Said Pine Lake is a private lake in which fish are legally confined and held by private ownership legally acquired * * *.

'8. A ditch, sometimes known as Yellow Creek Ditch, was established and constructed * * * by the trustees of Beaver Township with the co-operation of the landowners. Said ditch drained the swamp formerly known as Pine Creek Swamp and leads from the spillway of the Pine Lake Dam northerly to the headwaters of Lake Evans.

'9. * * * [Plaintiff's predecessors in title] by instrument duly executed and for a valid consideration, procured the right and privilege from the owners of the several parcels of land through which said ditch was constructed to enter upon said lands for the purpose of cleaning and maintaining said ditch.'

At defendant's request the trial court separately stated its findings of fact and conclusions of law. These read in part:

'2. Lake Evans is the wholly owned and controlled property of plaintiff, Ohio Water Service Company, and is a privately owned artificial lake or reservoir.

'* * *

'4. Although a few fish may escape from Lake Evans by being forcibly drawn through the discharge pipe at the Lake Evans Dam, or in times of high water over the spillway, there is substantially complete confinement of the fish in Lake Evans, and the fish in Lake Evans are under the dominion of and subject to the control of plaintiff * * *.

'5. Surface water drains into Lake Evans from the surrounding higher ground, and in times of heavy rains some fish may temporarily swim up into small rivulets formed by such surface water drainage into Lake Evans; such rivulets are, however, of insubstantial size and character, and run but a short distance from the surrounding hillside. They do not connect with any other body of water. Further, the entry of fish into said rivulets is frequently inhibited by the presence of mine waste drainage in the run-off.

'6. The flow of water in Yellow Creek Ditch (referred to in the stipulations of fact) is controlled by plaintiff [at its Pine Lake Dam] * * * [which] presently does, and has for many years, maintained the Yellow Creek Ditch, and said ditch is under the supervision and dominion of plaintiff.

'7. Fish are not accustomed to migrate between Lake Evans and other bodies of water within the state.

'8. The fish in Lake Evans are legally confined and held by private ownership lawfully acquired.'

So far as pertinent, Section 1533.32, Revised Code, reads:

'No person * * * shall take or catch any fish by angling in any of the waters of the state, or engage in fishing in such waters without a license.

'* * * Such yearly license shall permit the person to whom it is issued to take or catch any fish during the open season * * * in any of the waters of the state. * * *

'Owners of land over, through, upon, or along which any water flows or stands, except where such land is in or borders on state parks or state owned lakes, together with the members of the immediate families of such owners, may take or catch fish of the kind permitted to be taken or caught therefrom without procuring the license provided for in this section. * * *' (Emphasis added.)

Section 1531.02, Revised Code, reads in part:

'The ownership of and the title to all wild animals in this state, not legally confined or held by private ownership legally acquired, is in the state, which holds such title in trust for the benefit of all the people. Individual possession shall be obtained only in accordance with the Revised Code or wildlife council orders * * *.'

The Common Pleas Court enjoined defendants from attempting to require fishing licenses of persons fishing on Lake Evans.

That judgment was affirmed by the Court of Appeals.

The cause is now before this court on appeal from the judgment of the Court of Appeals.

Mark McElroy, Atty. Gen., Theodore R. Saker, Jay C. Flowers, Columbus, Thomas A. Beil, Pros. Atty., and Elwyn V. Jenkins, Youngstown, for appellants.

Manchester, Bennett, Powers & Ullman, John H. Ranz and Donald J. Libert, Youngstown, for appellee.

TAFT, Judge.

The ultimate question to be determined on this appeal, as indicated by defendants' assignments of error and stated in plaintiff's brief, is whether the Common Pleas Court was correct in its judgment 'holding that licenses are not required to fish on Lake Evans.' Standing alone, the judgment entry of that court might be susceptible of an interpretation that that court had enjoined defendants from enforcing on Lake Evans other laws or lawful regulations regulating fishing. However, that judgment was apparently sought by plaintiff, as the record indicates, and, when read in the light of the conclusions of law, was intended, as plaintiff's brief recognizes, only to enjoin 'defendants from attempting to require Ohio fishing licenses of persons fishing on Lake Evans.'

We are therefore concerned only with the question as to the necessity of an Ohio fishing license to fish on Lake Evans.

Whether such a license is necessary depends upon Section 1533.32, Revised Code, providing for fishing licenses.

Defendants recognize that Lake Evans may be the subject of private ownership and that plaintiff, as its owner, may have the exclusive right to take fish from its waters. Lembeck v. Nye (1890), 47 Ohio St. 336, 24 N.E. 686, 8 L.R.A. 578, 21 Am. St.Rep. 828. Paragraph 1(a) of the syllabus of that case, which involved Chippewa Lake in Medina County, reads:

'A non-navigable inland lake is the subject of private ownership; and, where it is so owned, neither the public, nor an owner of adjacent lands, whose title extends only to the margin thereof, have a right to boat upon, or take fish from, its waters.'

However, defendants contend that those whom plaintiff authorizes to take fish from Lake Evans must, by reason of Section 1533.32, Revised Code, have a fishing license to do so.

Under the words of that statute, a license is required only for fishing 'in any of the waters of the state.' By Section 1531.01(FF), Revised Code, 'waters' are defined so as to include the waters of Lake Evans, i. e., as 'any lake, pond, reservoir, stream, channel, lagoon, or other body of water, or any part thereof, whether natural or artificial.' However, 'waters of the state,' as used in Section 1533.32, Revised Code, are not defined by our statutes.

Those words could reasonably be interpreted as describing all waters in the state. Cf. People v. Horling (1904), 137 Mich. 406, 100 N.W. 691, People v. Conrad (1900), 125 Mich. 1, 83 N.W. 1012, People v. Bridges (1892), 142 Ill. 30, 31 N.E. 115, 16 L.R.A. 684, Ex parte Fritz (1905), 86 Miss. 210, 38 So. 722, 109 Am.St.Rep. 700, Peters v. State (1896), 96 Tenn. 682, 36 S.W. 399, 33 L.R.A. 114, and State v. Lipinske (1933), 212 Wis. 421, 249 N.W. 289, where the statutory words modifying waters were either 'in' or 'within' instead of 'of.' On the other hand, they could just as reasonably be interpreted as describing only public waters as distinguished from private waters, thus interpreting the word 'of' as indicating some sort of ownership relationship. See State v. California Packing Corp. (1943), 105 Utah 182, 141 P.2d 386, Davis v. State (1882), 38 Ohio St. 505 ('Taking the language in its ordinary meaning, the word 'of' in this connection is equivalent to 'the property of' or 'belonging to"). But cf. State v. Lowder (1926), 198 Ind. 234, 153 N.E. 399, Washburn v. State (1950), 90 Okl.Crim. 306, 213 P.2d 870, 15 A.L.R.2d 751, Reid v. Ross, Commr. (Mo. 1932), 46 S.W.2d 567, and Dargan v. Richardson, Game Warden (1956), 229 S.C. 135, 92 S.E.2d 167, where other language of the statutes involved indicated that the legislative body intended to describe all waters in the state, and Holland v. Flora (Ky. 1955), 284 S.W.2d 824, where the statute involved indicated an intent to describe even private ponds.

An important factor, in determining which of these interpretations should be adopted, is that Section 1533.32, Revised Code, is a criminal statute for the violation of which a penalty is provided in Section 1533.99(J). It is well settled that penal statutes should be strictly construed. State v. Fremont Lodge, Loyal Order of Moose (1949), 151 Ohio St. 19, 84 N.E.2d 498. Thus in Caldwell v. State (1926), 115 Ohio St. 458, 154 N.E. 792, it is said in the opinion at page 461: '* * * in statutes where the state is involved, on the one part, and the citizen, on the other, by analogy to the same rule of interpretation governing contracts, the Legislature having chosen the language, that language will not be extended by...