State v. Becker

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: NELSON
• Citation: 215 Wis. 564,255 N.W. 144
• Decision Date: 05 June 1934
• Parties: STATE v. BECKER.

215 Wis. 564
255 N.W. 144

STATE
v.
BECKER.

Supreme Court of Wisconsin.

June 5, 1934.

Questions reported from the Circuit Court for Trempealeau County; R. S. Cowie, Circuit Judge. Question No. 1 answered “no.” Question No. 2 unanswered.

The information herein charges in substance that the defendant George Becker did, on the 14th day of December, 1931, in the county of Trempealeau and state of Wisconsin, and within the boundaries of a certain wild life refuge established by chapter 484 of the Laws of 1931 (now section 29.579), unlawfully trap mink, a protected fur-bearing animal, against the peace and dignity of the state of Wisconsin.

Trial was had to the court, trial by jury having been duly waived. The court found the defendant guilty of the offense charged. The trial judge, however, being of the opinion that important and doubtful questions of law had arisen upon the trial which required a decision by this court before sentence should be imposed, reported to this court, with the consent of the defendant, pursuant to the provisions of section 358.08, the following questions for answer:

Question 1. Is chapter 484, Laws of Wisconsin for the year 1931, and which chapter is now section 29.579 of the Wisconsin Statutes for the year 1931, constitutional?

Question 2. Were the acts committed by the defendant a violation of said act?

All of the facts were stipulated. Only so many of them as are necessary to an understanding of this controversy will be recited.

The defendant admittedly trapped mink on the 14th day of December, 1931, in the county of Trempealeau, upon lands within that area designated by chapter 484 of the Laws of 1931, as a “wild life, fish and spawning refuge.” The defendant, a citizen of this state, was at that time duly licensed to hunt and trap. December 14 was within the open season provided by law for the taking and trapping of mink in Trempealeau county. The lands upon which the defendant trapped mink were privately owned by Delta Fish & Fur Farms, Inc., a Wisconsin corporation, hereafter called the company. The company, incorporated in 1927, owns about 5,500 acres of land situated in Trempealeau and Buffalo counties. Since its incorporation it has maintained a fish and muskrat farm upon its lands in full compliance with the laws of this state. It has expended large sums of money in improving its lands and in drilling artesian wells thereon to the end that an adequate supply of water for muskrat farm purposes might be maintained. The defendant was employed by the company to trap mink upon its lands. The waters upon the company's lands are not connected with any outside waters and are privately owned, nonnavigable waters, artificially stocked with fish and muskrats, all of which are privately owned by the company.

[255 N.W. 145]

The lands of the company are not so inclosed as to confine wild animals to said lands or to hold them captive thereon. At the time chapter 484 was enacted, and ever since, the said lands were inhabited by many wild birds and animals both game and predatory, such as prairie chicken, partridge, pheasants, quail, ducks, owls, hawks, grouse, rabbits, raccoon, squirrels, mink, skunk, weasel, gophers, fox, etc. Perrot Park, which adjoins the company's lands, is a state park in which similar animals and birds are found. All of the animals and birds hereinbefore mentioned may, without hindrance, pass back and forth between the said park and the company's lands. Of the 6,000 acres designated a wild life, fish and spawning refuge by chapter 484, about 3,000 acres belong to the company. After chapter 484 was enacted, the state of Wisconsin entered upon the lands of the company for the purpose of posting the same as a wild life, fish and spawning refuge, and actually posted the boundaries thereof, all against the protest of the company. The state of Wisconsin has not acquired by gift, purchase, or condemnation, any interest in the lands or the waters thereon.

James E. Finnegan, Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen., for the State.

M. L. Fugina, of Fountain City, and Morris J. Owen, of Winona, Minn., for defendant.

NELSON, Justice.

This is the fourth controversy involving the lands mentioned in the statement of facts or some right asserted as an incident of the ownership thereof, to reach this court. Merwin v. Houghton, 146 Wis. 398, 131 N. W. 838;Delta Fish & Fur Farms, Inc., v. Pierce, 203 Wis. 519, 234 N. W. 881;State v. Lipinske, 212 Wis. 421, 249 N. W. 289. These cases may profitably be read by one who desires to obtain a clear understanding of the situation which has given rise to so much litigation.

Following the decision of this court on February 10, 1931, in Delta Fish & Fur Farms, Inc., v. Pierce, supra, in which it was held that Delta Fish & Fur Farms, Inc., had the right to exclude from its lands certain members of the public who asserted the right to hunt and fish thereon, the Legislature, on July 3, 1931, enacted chapter 484, Laws of 1931 (printed in the margin), which incorporated into said chapter section 29.57, Stats. (also printed in the margin).¹

Question 1 inquires as to the constitutionality of...