State Game and Fish Commission v. Louis Fritz Co, 33712

Decision Date15 January 1940
Docket Number33712
PartiesSTATE GAME AND FISH COMMISSION v. LOUIS FRITZ CO
CourtMississippi Supreme Court

APPEAL from the chancery court of Desoto county HON. L. A. SMITH SR., Chancellor.

Suit by the Louis Fritz Company against Raymond Carrigan to enjoin defendant from seining South Horn Lake or fishing therein removing fish therefrom, or in any way trespassing upon the waters of the complainant in the lake and the submerged lands thereof. A temporary injunction was granted, and leave was given to the State Game and Fish Commission and another to intervene and become parties defendant. Complainant thereupon by leave of court amended its bill by making the State Game and Fish Commission and others parties defendant and prayed for an injunction against the added defendants and for damages against the original and added defendants. From a decree for plaintiff, the State Game and Fish Commission appeals. Decree reversed and bill dismissed in part and decree affirmed in part.

Decree reversed. Decree reversed and bill dismissed. Judgment reversed.

W. W Pierce, Assistant Attorney-General, for appellant.

With a few minor exceptions the general rule is that the title to the bed of fresh water rivers, lakes and ponds, whether navigable or non-navigable, is vested in a riparian owner to the middle or thread of the stream or lake where such owner owns lands only on one side of the lake or river, and to the whole of the bed of the river or lake if the riparian owner owns title to the riparian lands on both sides. Mississippi is no exception to the general rule.

Morgan v. Reading, 3 S. & M. 466; Magnolia v. Marshall, 39 Miss. 109; Archer v. Sand and Gravel Co., 58 L.Ed 850; Richardson v. Sims, 118 Miss. 728.

Since the right of the several riparian owners to the bed of the lake has its existence and is based upon the common law with reference to fresh water streams and lakes, the right to fish or boat in the lake must of necessity depend upon the common law right of the several riparian owners and their licensees or lessees.

Scott v. Napier, Scott's Revised Reports, Court of Session Third Series, Vol VII, page 32; Mackenzie v. Banks, Vol. III, House of Lords, Law Reports, Appeal Cases, page 1324; Hardin v. Jordan, 140 U.S. 371, 35 L.Ed. 428; Smoulter v. Boyd, 10 Kulp (Pa.) 199; Reynolds v. Commonwealth, 93 Pa. 458; Beach v. Hayner, 207 Mich. 93, 173 N.W. 487, 5 A.L.R. 1052; Sanders v. De Rose, 186 N.E. 388.

The title to the fish in South Horn Lake is in the public even though the title to the submerged land in the bed of the lake is vested in the several private riparian owners as an adjunct to their riparian ownership of a part of the shore line and bed of the lake.

Ex Parte Louis Fritz Co., 86 Miss. 210.

Fish in South Horn Lake not reduced to actual possession are not private property within the contemplation of Sections 14 and 17 of the Constitution of Mississippi 1890 or the 14th amendment of the Constitution of the United States so as to require compensation to be paid to one of the several riparian owners of the lake for fish taken by a licensee or lessee of another riparian owner of the lake.

Ex parte Louis Fritz, 86 Miss. 210.

The State Game and Fish Commission was created for the purpose of discharging a governmental function, and with a design to protect and improve an adequate supply of game and fish in the state, and as such state agent is not liable for the authorized acts of its officers and agents.

Dick v. Drainage and Levee Dist., 147 Miss. 783; Nugent v. Bd. of Levee Com'rs., 58 Miss. 197; Stewart v. State Highway Com., 166 Miss. 43; State Highway Com. v. Knight, 170 Miss. 60; Lowe v. Levee Com'rs., 19 So. 346; Raney v. Hinds County, 79 Miss. 241; Harrison County v. Marione, 110 Miss. 592; Sevier Lake Drainage Dist. v. Kinney, 153 Miss. 440.

Has the state power and right, for the purpose of preservation and conservation, to put to work such a large operation as here involved, and permit the entire expense to be paid by taking large commercial quantities of fish, even though gross or non-game, from above the boundaries of the riparian owner which commercial taking would otherwise belong exclusively to the riparian owner? Or to approach this question from another view, may non-game gross fish be considered predatories so that the state may lawfully destroy them and having that right, may, on taking them out of the lake sell them instead of destroying them?

In approaching the answer to the above question we must consider the ownership and private property right of riparian land-owners in fish in waters adjoining the riparian owners' land.

By reason of the migratory habits of fish their ownership is in the public, and no individual has any absolute property right in them until they have been subject to his control.

Ex parte Fritz, 86 Miss. 210; State v. Hill, 98 Miss. 142; 11 R. C. L., title "Fish and Fisheries, " secs. 2 and 3; State v. Buckingham, 93 Miss. 846; Parker v. State, 53 Am. Rep. 643.

In People v. Truckee Lumber Company, 58 Am. St. Rep. 183, it was held that the right to protect fish for the common use and benefit is one of the recognized prerogatives of the sovereign and this recognized prerogative extended to all waters within the state, both public and private, to the extent that a riparian proprietor does not own the fish therein.

To complete a right of property in fish an actual appropriation or mancupation must be made. The possession must be complete.

Sollers v. Sollers, 77 Ind. 148; State v. Theriault, 67 Am. St. Rep. 695; Blackstone's Commentaries, Book 2, page 14.

As to whether or not the taking of fish is the taking of private property for public use for which compensation must be made the court said that it was a power vested in the Legislature to enact laws for the protection and preservation of fish in the waters of the state. This comes under the exercise of the police power, which extends to almost all kinds of property and property rights, and its exercise by the Legislature. It comes under the general power of the Legislature to enact laws for the common good of all the people. All property and all rights are held subject to the exercise of this inclusive power.

State v. Roberts, 59 N.H. 256; Moulton v. Libbey, 37 Me. 472.

It seems clear from the authorities that the state has power in the interest of the public to regulate the manner and prescribe the season for taking fish in all streams and lakes connected with other waters of the state so as to control the migration of fish. The private ownership of the soil under such waters does not preclude the state from making such regulation.

People v. Truckee Lumber Co., 116 Cal. 397, 58 Am. St. Rep. 183; Peables v. Hannford, 18 Me. 106; Commonwealth v. Look, 108 Mass. 452; Ex parte Fritz, 86 Miss. 210; In re Delaware River, 115 N.Y.S. 745; State v. Sutton, 139 N.C. 574.

The Legislature may regulate and restrict the fishing and taking of fish on the land of a private individual.

People v. Bridges, 142 Ill. 30; People v. Harding, 137 Mich. 406; Peters v. State, 96 Tenn., 682; California v. Monterey Fish Products Co., 195 Cal. 548, 38 A.L.R. 1186; McKinney v. Farnsworth, 121 Me. 450; Miller v. Schoene, 276 U.S. 272, 72 L.Ed. 568; Wasson v. Greenville, 123 Miss. 642; Clark v. State, 169 Miss. 369; State v. Newman Lumber Co., 103 Miss. 263.

There is a presumption that the public officers will do their duty and act in good faith under legal authority. Bad faith cannot be imputed to the State Game and Fish Commission in seining South Horn Lake.

State v. Washington Steamship Co., 76 Miss. 449; Bullock v. Sandford Cons. School Dist., 153 Miss. 476; Bousquet v. Brown, 152 Miss. 171; Bd. of Sup'rs v. Jones, 103 Miss. 602; Wood v. State, 169 Miss. 790; McLeod v. State, 154 Miss. 468; Town of Ackerman v. Choctaw County, 157 Miss. 594.

It will be argued that the Legislature was without power to delegate to the Game and Fish Commission the right to prescribe the means and method of removing fish from the lake for purposes of conservation and propagation. This is answered by specific insistence on the operation of the same principle under state statutes, such as empower the boards and commissions to regulate the taking of fish.

Ex parte Fritz, 86 Miss. 210; Payne v. Providence Gas Co., 31 R. I. 295; Commonwealth v. Sisson, 189 Miss. 247.

Has the state the right to take any more than enough to pay the actual expenses, including reasonable salaries and a reasonable overhead, to the state?

Has the state the right to make it a profit-taking enterprize, for itself and for those employed by it, although conservation be a concurrent object?

If these inquiries be answered in the affirmative, is there any limitation upon the profit-taking feature, and if so, what is that limitation?

The right of the state to take fish in the interest of propagation and conservation is limited by the necessity for conservation and propagation without regard to the profit or loss feature. The regulation of the State Game and Fish Commission with reference to this particular lake specifically states that it is for the purpose of clearing "Lake View" or South Horn Lake along with other lakes, "so far as possible and practicable of turtle gar and other predatory species, and non-game gross fish of certain size for the purpose of conservation and propagation of both non-game and game fish in said lake." The contract entered into pursuit to the foregoing regulation so limits its contents. The profit feature arises only incidental to the main purpose and is permissible only to the extent of accomplishing conservation and propagation. In the preservation of fish for the benefit of the people the state has the...

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