State Game & Fish Commission v. Louis Fritz Co. , 187 Miss. 539 ( 1940 )

The initial contention of appellee that it owns the soil or bed of the lake opposite its riparian lands and to the center or middle of the lake is well taken, and is established as correct by Richardson v. Sims, 118 Miss. 728, 80 So. 4. It owns the minerals thereunder, Archer v. Levee Com'rs, 158 Miss. 57,130 So. 55; Archer v. Greenville Sand Gravel Co., 233 U.S. 60, 34 S.Ct. 567, 58 L.Ed. 850, and by the same reason anything which becomes in the process of nature permanently attached thereto. Wineman v. Withers, 143 Miss. 537, 108 So. 708.

But appellee, as riparian owner and as owner of the bed of the lake opposite its riparian lands, is not the owner of the water resting for the time being upon its submerged lands or lake bed. 27 R.C.L., pp. 1070, 1071. In its ordinary or natural state, water is neither land, nor tenement, nor susceptible of absolute ownership. It is a movable, wandering thing and admits only of a transient, usufructuary property. 67 C.J., p. 675. The Magnolia v. Marshall, 39 Miss. 109, 124. The riparian owner may not say that he has any sole ownership in that part of the water which rests upon his lake bed, for the unity of a lake is preserved not only by all parts of its entire bottom but also by all its banks, as to which other riparian owners contribute an essential part to the maintenance of the whole; so that without the entire presence of the entire boundaries of the banks there would be no lake at all.

And appellee as riparian owner does not own any of the fish in the lake. This was settled in Ex parte Louis Fritz, 86 Miss. 210, 38 So. 722, 723, 109 Am. St. Rep. 700, wherein it was said "fish are ferae naturae. They are incapable, until actually taken, of absolute ownership, except in artificial lakes or in small ponds that are entirely land locked." And the Court said that since the fish in such a lake are not the subject of private ownership until reduced to actual possession, their ownership in the meantime so far as capable of ownership is in the state, not as proprietor, but in its sovereign capacity, as the representative, and for the benefit, of all its people in common.

Inasmuch as there is no private ownership in the water or in the fish it follows that where, as here, there are several riparian owners of an inland lake, each owner, their licensees, and every other inhabitant who can gain access thereto without trespass, may use the surface of the whole lake for boating and fishing so far and so long as they do not interfere with the reasonable like use by others similarly entitled to that right. 26 C.J., pp. 599, 603; Beach v. Hayner, 207 Mich. 93, 173 N.W. 487, 5 A.L.R. 1052; Percy Summer Club v. Astle, 1 Cir., 163 F. 1. The foregoing statement of the rule is supported not only by reason and by respectable authority on the point, but is in accordance with what has been the generally observed custom and rule of conduct among the people in this state for time out of mind — an acquired custom or usage which is within the limits of the further reasons which we shall later point out.

What has been said in the foregoing paragraph has reference to the rule in this state, and to the immemorial usages, customs, and practices of our people, as regards boating and fishing in the usual and ordinary modes and manners for sport, pleasure and recreation; and the rule will include the right in those named to boat and fish for commercial purposes so long as conducted in a small way by the use of boats not too large to be freely capable of being propelled by oars, even though not so propelled, and when the fishing is done solely by the traditional and ancient means of the pole and line, or the rod and reel, or with small nets and the like which do not disturb the bottom, or the upland, or anything permanently belonging to the upland or the bottom.

By the uses aforesaid there is no appreciable burden placed upon the bottoms of the riparian owner; there is no interference with his free access to and from his riparian lands; there is no presence of the noise and clamor of workmen; no disturbance of his bottoms or his banks; and if a small boat should occasionally drop its insignificant anchor or the hook or line should sometimes reach the bottom, this would be a trifle too small for the law to notice — de minimis non curat lex.

But a different question is presented when the fishing is for commercial purposes on a comparatively large scale, and by the use of the means and implements beyond those heretofore herein mentioned — keeping in mind all the while that we are here concerned with non-tidal waters only. As to such waters and as to those larger operations therein for commercial purposes, there are apparent reasons why, and the fact is that, there has been no such immemorial, uniform and general state-wide customs and usages in this state as would work a modification of the ancient common law as inherited by us from the mother country; and thus the rule in regard to the right of commercial fishery, when conducted on the larger scale as mentioned in this paragraph, is that of the ancestral common law, which is, that this right belongs exclusively to the riparian owner and is co-extensive with the boundaries of his soil under the bed of the lake, this right to be exercised at the same time in such manner as not unreasonably to interfere with or exclude those who are mentioned in previous paragraphs herein. Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 35 L.Ed. 428, 435; Notes 3 Ann. Cas., p. 860; 3 Kent's Commentaries (13th Ed.), p. 579, original Sec. 418, and see the cases collected in Gratz v. McKee, 8 Cir., 270 F. 713, at page 718, 23 A.L.R., 1393.

All the foregoing rights are subject, however, to the superior authority of the State in its governmental capacity to regulate the time, manner and the extent to which the fish may be taken. And, as said in Ex parte Louis Fritz, supra: "It is not only the right of the state, but also its duty, to preserve for the benefit of the general public the fish in its waters, in their migrations and in their breeding places, from destruction or undue reduction in numbers through the caprice, improvidence, or greed of the riparian proprietors as well as of trespassers." And the Court said that the State may not only regulate and restrict the taking, but may absolutely prohibit it, if deemed necessary for the preservation of the fish or for the public good. But this must be for real reason, and not as purely arbitrary action.

Thus it follows that the State has the power, under adequate statutory enactment, as well as the reasonable duty, to take all necessary or proper steps for the extermination of all species of predatory fish, and having that power may avail of any and every reasonable means or agency for the accomplishment of that purpose, so long as the state maintains control and supervision of the means and agencies put at work. 11 R.C.L., p. 1041, and cases cited under note 20. But inasmuch as the State does not own the fish as proprietor or absolute owner (Ex parte Louis Fritz, supra), it has no right to take the fish and sell them solely, and for no other purpose than, as a proprietary business of the state; nor may it conduct its conservation or preservation operations in such manner or to such an extent as unreasonably or unnecessarily to intrude upon or invade the stated right of fishery of the riparian owner.

And inasmuch as the State has the dominant right of regulation, preservation, and conservation aforementioned, it would have the right in the pursuit of reasonable and proper means to that end and as an incident thereof to gain access to the waters by ingress over the lands of a riparian owner, and temporarily to tie or moor its equipment to the banks, or to the trees there standing or standing in the water, so long as no substantial injury is thereby done to the property of the riparian owner, or could anchor the equipment to the bottoms of the lake or allow any part of its equipment to rest upon the bottoms, so long as all this is temporarily done, and only to the extent and for the sufficient time necessary for the proper performance of the work.

As to the common law, as stated in the foregoing paragraphs, it is my understanding that the majority of the members of the Court are in substantial agreement, and are agreed also that the legislature by a sufficiently explicit enactment may exercise the powers mentioned. The difference of opinion has arisen over what the legislature has done, rather than upon what it may do. In my judgment everything done herein, by the State Game and Fish Commission, and by its contractor acting under it, insofar as anything to the contrary is disclosed by the present record, was fully authorized by Chapter 123, Laws 1932, and that the decree should be reversed not only, but that the bill should be dismissed.

McGehee, J., concurs in the foregoing opinion, and as to the common law McGowen and Anderson, JJ., also concur; but as regards the statute, Chapter 123, Laws 1932, and its effect,McGowen and Anderson, JJ., concur in the opinion of Smith,C.J.