Peters v. State
| Decision Date | 08 June 1896 |
| Parties | PETERS et al. v. STATE. |
| Court | Tennessee Supreme Court |
Error to circuit court, Lauderdale county.
L. C Peters and others were convicted of violating the fish laws and they bring error. Affirmed.
Thos Steele and Jas. Oldham, for plaintiffs in error.
Atty Gen. Pickle, W. E. Lynn, and J. P. Graves, for the State.
The plaintiffs in error were indicted for, and upon trial were found guilty of, a violation of section 1, c. 127, Acts 1895. This act is entitled "An act for the protection of fish in the state of Tennessee," and, by its first section makes it "unlawful for any person or persons to catch, kill or wound any fish in any of the streams, lakes, rivers or ponds in this state, by seine," etc., or "in any way," etc., "except by rod or line, or trot line." It is provided, however, that "this section shall not apply to private ponds." The few facts necessary for the determination of the questions presented by the plaintiffs in error on this appeal are as follows: There is in Lauderdale county, in this state, a large body of water, properly called "Open Lake" or "Big Lake," which covers an area of 1,040 acres, lying in the lowlands contiguous to the Mississippi river, and supplied by periodic overflow therefrom. Of this lake the plaintiff in error Peters owns 1,000 acres, while the remainder, consisting of 40 acres, called the "Arm," is the property of another. The plaintiffs in error have been for several years engaged together in seining this lake, and capturing fish in that way for foreign market, and have continued this practice since the passage of the act in question. When called upon to answer the indictment in this case, their defense was that this was a "private pond," within the meaning of the proviso of the first section of that act. While it would be impossible to definitely fix a dividing line between a pond and a lake, yet that a distinction does exist is recognized, not only in the language of the common people, but by Mr. Webster who defines a "pond" as "a body of water naturally or artificially confined, and usually of less extent than a lake," and a "lake" as "a large body of water contained in a depression of the earth's surface." And we think it clear that this distinction was understood by the parties, who have given to this sheet of water the name of "Big" or "Open" Lake. Conceding, however, that it may be called either a pond or a lake without doing violence to the rules of language, still it is not a "private pond," within the terms of this proviso. While it was the purpose of the legislature to preserve the fish in our lakes, water courses, etc., as a food supply for the public, and, to accomplish this, it placed an interdict on those methods that result in their wholesale destruction, yet this could be done without interfering with the owners of a "private pond." With the fish in such a pond the owner might do as he willed. To exercise this unlimited control, however, the property must be essentially private. It must be a sheet of water covering exclusively his own land, and such as no one could forbid him its use, any more than the cultivation of the soil underneath, if it was free of the water. Lacking this element of exclusive proprietorship, we think it clear that plaintiffs in error cannot avail themselves of the protection of this provision. As before stated, while Peters is the owner of 1,000 acres of this lake, the remaining 40 acres belongs to another person. If the former is the owner of a private pond, then so is the latter, and we would thus have one body of water constituting two distinct private ponds. If the contention of plaintiffs in error is correct, then, under the protection of this proviso, the proprietor of this "arm" of 40 acres, if he could invite all the fish of the lake into it, might, by the use of destructive methods, exterminate them, and yet be guilty of no wrong of which the public, or any individual member of it, could complain. This is equally true as to the owner of the 1,000 acres, whose methods of capturing fish are much more likely to result in their final extermination. In the words of the supreme court of Pennsylvania in Reynolds v. Com., 93 Pa. St. 458, cited in 12 Am. & Eng. Enc. Law, p. 627, this body of water ...
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Fritz v. State
...constituted the private property of no one, and could not be lawfully caught except in the manner provided by the statute. Peters v. State, 96 Tenn. 682, 36 S.W. 399; Reynolds v. Commonwealth, 93 Pa. Benscoter v. Long, 157 Pa. 208, 27 A. 674; State v. Blount, 85 Mo. 543. The evidence was su......
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