State v. Blount

• Decision Date: 30 April 1885
• Citation: 85 Mo. 543
• Parties: THE STATE v. BLOUNT, Appellant.
• Court: Missouri Supreme Court

85 Mo. 543

THE STATE

v.BLOUNT, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Buchanan Circuit Court.--HON. W. H. SHERMAN, Judge.

AFFIRMED.

J. P. Thomas for appellant.

(1) The statute under which the indictment was found applies to public waters only, and not to private waters. R. S., sec. 1625. (2) If the language of the statute is broad enough to include within its prohibition the bayou in question, it takes or damages private property without any compensation therefor; it deprives a person of property without due process of law, and is, therefore, unconstitutional and void. Constitution of Missouri, art. 2, secs. 21, 30; Constitution of United States, art. 5 of amendments.

D. H. McIntyre, Attorney General, for the state.

NORTON, J.

Defendant was indicted in the Buchanan circuit court for netting and trapping fish in violation of section 1625, Revised Statutes. The cause was tried upon an agreed statement of facts; defendant was found guilty, and fined two hundred and nine dollars. From this judgment he has appealed. The agreed statement of facts is as follows:

“1. That the water described in the indictment is a bayou flowing into and connecting with Lake Contrary, in Buchanan county, Missouri, as is shown by McAleer's map of Buchanan county; and that Lake Contrary is a public body of water; and that the said bayou was surveyed as land, as is shown by the field notes and maps of the surveyors and engineers of the United States. That said bayou extends, for more than a mile from its entrance into Lake Contrary, back into the country, and is about one hundred yards wide at its junction with the lake, and ten feet deep, and that fish from the lake have always had, and still have, free and uninterrupted access into said bayou from the main lake, and from the bayou into said lake; that thousands of California salmon and shad have been placed in said lake by the fish commissioners of Missouri, and all may pass into and out of said bayou from the lake into which they were placed.

2. That the defendant, at the county of Buchanan, about the time alleged in the indictment, and in the manner charged in the indictment, did, in the waters of said bayou, fish, seine and net, the defendant then and there for so fishing, seining and netting, having the consent and authority of the owners of all the land on each side of the said bayou, and adjacent thereto, and on which the waters of said bayou are located.”

It is contended, on behalf of defendant, that the bayou in question is not such a body of water as the statute forbids fish from being taken by seines, nets, traps, etc. The statutory provisions are as follows: Section 1625, Revised Statutes, forbids, under penalty therein prescribed, the erecting or maintaining of any seine, net or trap, * * * in any waters of the state, or in front of the mouth of any stream, slough or bayou, and prohibits the taking or catching of any fish in the “waters of the state” by any such means. It further provides that such prohibition shall not apply to waters wholly on the premises of such person or persons, using such devices. The term “waters of the state” is defined by section 1631, of Revised Statutes, to mean “all...