CONSERVATI ON C~~miSSION: FISH A:rim GAME:

.Rigl.t to 'Seine rough fish in private lake.

November 5 , 1942

I I/ /] r--------

Honorable Robert } . c. Wilson III Prosecuting Attorney Pl a tm Count y Pl atte City, Missouri

Dear Sir:

F l LED

tJ7

Wo are in receipt of your l ett er of October 21 , 1942 , reque s ting an official opinion on the following :

"One of our Pl atte County citi zens owns a piece of ~roperty upon which i s located a l ake for med by overflow from the Mis­souri- River . Hl s property entirel y en­c l oses the body of wa t er in ques tion . He desi r es to take the rough fi sh f r om this wa t er on h.is place for purposes of s a l e . He has what i a known under the Heg­u l ations of the Conservation Commdssion as a ' Commercial License ', which woul d en­abl e him to pr oper l y dispose of the f i sh if he is abl e to acquire them legall y . He woul d l ike to seine the rough fish f r om t his water before the wint er freeze destr oys them, and sell them under hi s ' Commercial License.' 1.'y problem is whe ther or no t he can do so . I know that t he Conservation Commission does not attempt to enf orce its r egul a tions on bodies of wa t er privatel y owned where a f e·e is charged t o fish, and it woul d seem to me that a pr oper analogy t o draw f r om that woul d be that t hey cannot enforce their regul ations against this man who owns the l ake and all the l and surround­ing it . ~ill you please advi se?"

lion . R • .P . C. ~•ilson I I I - 2 - November 5 , 1942

The law i n t h is state as well as in other sta t es is well established that the title to all wildl ife is in the state . Section 8883 , ~ . S. l issouri 19 39 reads:

" The owner ship of and title to a l l birds , fish and game , whether resident, mig ra-tory or imported, in t he s t ate of r~issouri no t now hel d by pr iva t e ownership , l ega lly acquired , is hereby declared to be in t he sta te , and n o fish , birds or game shall be caught , taken or kill ed i n any manner or at any time , or had in possession , except the person so catch ing , taking , killing or having in possession s hall c onsent that the title of said bircs, fish and Bame shall be and remain in the sta t e of r:issouri , for the purpose of regulating and controlling the use and dispos ition of t , e same afte r such cat ching , taking or killing . 7he catching , taking , ki lling or l~ving in possession of birds , fish or game at any t i me , or in any manner, by any persqn , shall be deemed a con­sent of said person t hat the title of the state shall be and remain in the s tate , for t he pur pose of regul ating the use and disposition of the same and sai d possession shall be consen t to such title in th~ sta te . "

I n State vs . Springfie l d Gas 8: Electri c Co ., 204 s. w. 942 , 1. c . 945 , t h e court said:

" ·!l- ::- .:· * ;:. * -:. Section 6508, R. s . 1909 , vests ownership of, an d title to, fish in t he s t ate , and this without regard to the character of the stream or creek in which the f ish may be . State v . •· eber , 205 I o . 36 , 102 S . •: . • 9 55, 10 L. R. A. { l • • ) 1155 , 120 Am . St . Rep. 715 , 12 Ann . Cas . 38 2 . *

. ' .. · "

In State vs . Bl ount , 85 f"i s souri 543, 1 . c . 547 , the court specifically def ines the right that anyone may have in game , that i t can be no more than a qual ified property right , that he may

•

Hon . R. P. C. ~ilson III - 3- November 5, 19 42

hunt and t ake such game on his premises to the exclusi on of o thers but i n order to presorve fish , the state may exercise j ts police power and forbid the taki ng except by prescribea methods . In so holding the court sa1d:

"I t i s further contended b~ counsel, t hat if the s ta tute means t his , that it is a violation of bo t h the constitution of t he s tate and the Uni t ed Stat es , which forbids the taki ng of priva ~e propert y for public u se . ..hi le conceding the inc enui ty of the argument made i n support of t his proposition, I cannot admi t its soundness . The prope r t y which a man hath in animals , feroe naturae , is a qualified property; tha t is , he may have the privilege of hunting t aking and killing them on hi s own premises , to the exclusion of others . He has but a transient property in the se an i mals , usuall y ca lled game , so long as they con tinue within his prem~s . 2 Bl ack Com. 394 . This qua l i fied , t ransien t pr operty , is no t taken away by the s tatute . ~ne who may have the right t o ~ake fi sh from such waters as are specified in the s t a tute , is no t denied the right t o do so, but, i n or der to the pre­s ervation of f ish and .prevent their des t ruction , t he s Late , in t he exercise of its poli ce power , simpl y forb i ds t hem f r om being taken by the use of certain prohibited me t hods . ~1e can ex­ercise such right in any othe r me t hod than those which t he statut e prohibits .

nin the exercise of t his power the s t ate , in various statutes , forbids the killing or cap­turing of certain ki nds of game within certain per iods of t he year, and for bids their cap ture by the use of certain means during t h e other periods of the year, and such. laws havo never been sup_osed t o be obnoxious to cons titut i onal provi s ions declaring that pr ivate pr operty s hall no t be taken for publ ic use wi t hout com­pensation . "

In State vs . · .• eber, 205 r·i ssouri 36 , 1. c . 48 , the court hel d the title t o deer raised and kep t in ·captivity is no bet ter

H n . R. 1' . C. \. ilson III - 4- .ovetrber 5 , 1942

than the title to wild deer w .ich is k i l led or captured and~­duced to ~ possession. In so holding the court s aid :

" I f the provis ion of section 13 , which declares it unl awful to have i n ~osse q sion t he car cass of any deer w lch bas no t ther eon the natural evidence of its sox, should be c~nstrued as referring to deer in o. wi ld state, and t o such onl J , the cvasior of t3e law woul d be an easy matter . Suppose the deer which defendant ~ur­chas ~d o.nd had in poasessioP had been kill ed w~ile in a wi ld s t a t e , the~e is no doubt that , the evidence of sex being rer.oved, he would be guilty of a viol~tion of the l aw; ~nd , !£ ~ ~ the question of title~ ownership is £££­cerned , • .. he t itle which !. person hol ds to deer which he has raised !!.!l2 kept in captivity is !!2. better than his titl e to t he wild deer which he kill"SSr "Ci''tt.res , and-reduces ~is pos-session . .. - - - -

Al so , in o..Jtate vs • . eber,· supra , 1 • . c . 44 , the court sai d:

"No o\"mer of deer raised i n captivity has a better title ~~creto than has the hunter at co ~on l aw to the deer captured or ~illed by him, and t t has always been held that the State has authori ty to reGulate the s a le of suc11 game , or prohibi t lt altogether. -:} ~~ * .:--:; {:- -!(- ~· :: ;.. ~· .~"

I n State vs . ·.eber, s upra , 1 . c . 47- 48, tho court hel d t'"'o t the stat e may pr ohibit catch1nc and sel ling fish and such pr ohibition even extends to such as have been artifici ally pr opa ated or r a.in­tained . ~n so hol ding the court said:

"1!!.£ Le[5iola ture may forbid ~ ca t eh ing .2!:. selling of useful fishes during reason­abl e c l ose seasons establ i shed ~ them; !!}_ to extend ~ prohibition !.2. !!. to in­c l ude ~ ~ ~ been artificall y propa­gated . .2!:, maintained i_Lnot differ ent in principl e ~ l egisl ation forbidding per­m f r om catching~ in str~ running

Ron . R • . e. C. \. ilson III - 5- Hovember 5 , 1942

t hrough their o"n lands . The statute under considora. tion falls within this power . f"

In State vs . cber , supra , 1 . c . 46 , the court further said that the defendant wns the o\T.ner under a statute similar to vection 8883, _ . ~ . Tissouri 1939 , since . rs . Casey fron who~ defendant purcrased tho deer had raised and held t~ern in captivity up to the time they woro sold to defendant, that defendant ' s ownerslip was such private ownersbip in ua~e as is recognized in voction 8883, R. S . Iiss ouri 1939 , that Y'rs . Casey had the right to s ell the deer as any other property belonging to her , but that deer i s game under the l aw , and the state has tho ~ower to enact l aws to preserve and protect game and t~~ t t he property rights qf the defendant wer e in no way in­f r inBed .

In \.i:::1dsor vs . Stato, 12 I . R. A. N. S . 869 , 1 . c . 872- 873, the cotr t quoted from ~tevens vs . State approvinGl Y wherein it was held that no i ndividual has any property rights in c ame other than such as per~its the individual to acquire end even when game is captured~ r~duced into possession ~is ownership ln it may still be reeul ated . In so holding the court said:

11:.. :· • • :." ~· • * !'!- ~rom all these consi d-

erations to which we have adverted, ~he just and rational construction to be pub upon tho s atute in question is ~1~t all oysters taken frc any of the waters of thi s state rr.ust be culled, and that all oyste . ..-s less than 2t inches fro~ hin{;e to mouth, hother taken from natural beds or from

private l ots , are ' WL~erchatable oysters,' and that anyone having such oysters in 1 is possess ion is liable to the penalty provid­ed t her·efor.

"In reference to the second con ten ticn of the appellant, that Sec . 8 is an infr ingement of t he 14th A~endmcnt to the Constitution of the Uni~ed States , which dec l ares that no one shall be deprived of life, l ibert y , or property without Aue proces ~ of law, little need be said. In Tyler v . .:>tate , 93 Pd . 311, 52 r.. R. A. 101 , 48 At l. 480, trus court said: ' te recently

Hon . R. P. C. i lson III - 6 - November 5 , 1 ) 42

held in tevens v . ::>tate , 89 I'd . 66<) , 43 Atl . 9 29 , that it ! s entirel y within the power of the s tato to prohibit the ~aving i n 1:.ossession, or expos ing t o s a le, in tris s tate , rr~ t h i n tho clcse.d ~ca:lon , gar.e w:r~_ch 'rlas bet"n te..lron oithcr v:it~in the s tate or elsow~1e r· e. ...he s nr o principle would apply to a ~roh:lhition against havine: i n possession oys t ers of nhich ~ore thnn a s~ecj fied portion ~ere of c ~ izo dec lared by law to be ~orcPantahlo .' In Stcvrns v . Stcte , supra , +.he cot.rt so.! d : ' The o.uthcr­i ties nr.reo :.hn t the ol,nersr · ~ of all gamo ani~ als and birds is in tho ~ooplo !n th~ir sovereign cape.city,- th:::t is , ! :1 tho s t ate ,­and no i:-.ci vitlue.l rc.s c.ny ~ r u£ '1rty ri chts in game other ~ a~ such o.s the s tste ~ay per­mi t hi to acqui~c , a~d evon -~en game has been captured a~d reduced into possess ion by the indivi ~ual wi th the per,ics ion of ~he s ta~e , ~is owners~ip in i t mny be r~gulated and r estrained hy appropriate legislation en­acted for co~sido~o.tion~ of state or +he benefi t o~ thG cor-u-ll ty . I n o th~r · ords, ""he cas os hol d that t h e ques t i on of enjoyment i n t r i a field i s one of public policy , end not of privote r i ght . ' .. ·:!- ;~ .. ~ :!- :: .~o ~ :.: ~=- :: * ::·"

ln leopl a vs • . orl ng , 100 N •• 6~ 1 , 1 . c . 6~2-693-694 , the court likewise he l d th!" +- t,...e s tate eoul .: •"'ocul a to the taki ng of fish from a lake o~ property bel onging to defendant which lake ~as close t o tro G'"and '~'"'.iver t! .a t occasionally overflowed into std l ake . I n s o ho l dinG t~~ s is what the court said in part:

"<.:n tho part cf the de!'ondants , they rf!'er­ed evi er.ce tending to slo~ that since 1851 the dei'endant John \' . • r or l ne b.o.s boon the owner a~d in poesc.:;n ·on o: tl:te l nn~ .'':-on wl jch th) s bayou or l ake ls slt~~te ; that he ov-nc all tl:e l and around a-: 1 d lake cr bayou , and ~·h.a +- t:-:o s ame is T'Ot a meonderr d l ake ; that over 1 5 years ago he pu t up notices , painted wooden signs , and nai led them on the troes in t h e vicini t y of t he lake , telling

•

Hon . · R. r . C. ~ilson III - ? - November 5 , 1942

the public t hat it was priva te pr operty, and that no fishing was allowed in said lake or bayou, and that said s i gns have ever since been kept up t~ notify the public; that the ba~ of the river very seldom overflows , but once a year the river would get hieh en0uch so that the wa ter would flow into the old in­l et, which would l as t sometimes 15 days ; the water would subside in t h o river, t hen the river woul d be entirely shut off , and t he bayou or l ake would havo no connection wj th any public water s until tho next spring fres~et came; t ' at there is no water in the ditch to exceed 20 to 25 days in any one year; the rest of t~e time the bayou or lake is entirely disconnected from any other waters ; that tho ·e is no inlet to said lake; that the inlet from the river bas no defined channel , except where it breaks through the high bank near th~ river; that this is dry so ~uch of t he time that it is overgrown wi th tame grass and becomes good pasture land; that during the las t 30 years the 6wner of the land has piped and tiled cold spring water from t ne adj oining l and down to this lake , and during all these years has planted little fishes in said·lake , obtained from surroundi ng pools of water , such as carp , bass , sunfish, and pick-

.; erel ; that on acccunt of t he planting of these f i s h (no t obtained from any public fi sh hatchery) this bayou or lake has become well stocked with fish , so that the fishing is much bettor th~~ in Grand river, and people resorted t h ere to fish to such an extent that i t became necessar y , and the owner of the land put up signs forbid­ding trespassing , and notifying the public that it was a privat e l s ke , and that fishing was no t a~lowed; t hat on the day allec ed in the com­plaint and warrant the respondents were fishing with a not, w~!ch they claimed t hey had a right to do , &s it wes privat e property; they set these nets near the place whore the cold water pipes and tile made t}'le water fresh, and where the fishes wore in t~e habit of frequenting to get cool water.

- Hon . R. r . C. ia lson III - 8 - i:ovomber 5 , 1942

" :· -:: -:~ :~· ::- ;·. :;. ·. ' To fish is a priv.l l o_e accord­ed by the state, an~ t he questi on of ~~divid­ual en joyment is one of public pr ivilege, and not of llrivate rir.:ht . " tmless tho ca t ching of fish, " a s is said by one writAr , "is conduc ted ni th r eas on , ~1 thor the fish .nay be altogether es tsrmin~ ted, or the enjoyment of' t-hn ri;::ht by one r.ay int~rf~re with tbc equal o1joyment of the ·i Ll t by- others . 11 lienee , for t-h.c protec­tion of f.ish , a valuahle ert1cle of food end merchandise , ~ e control of w· i ch is in tha s tace, and to preserve e\.\lal l ty i "'l the right to fish , the state has an undoubted r!~ht to regu­l ate the manner in v:· ich the;~ shall be caught , and to protect their wigr atlons . '

.... .. . ~ .. .. "> .1:' : :: :~ :: i:

" ·*' .:- . There t"'ay be n·"ld doubtless are . various al1d per hqJ. s - "'ny , 1 ~\ e~ , ,ends , ol ot•:_,hs , and ba~ous in~ o s t 'te w~ ch or~ so far ~ riv@ te prcperty t~'.lt th~ ow1!'r moy drai n thco, 01 fi ll t h e!!' up 1\ithcPt infr1 "lging nny public ")I' private ri.)1t , bu~ w•' ch , :..c lon~ on t~oy ~re 1or·"'t­t e0 to rc~sin in t~e~r ac~Jal condition , &le places whAro fish co-~on to the wntern of tho state are pr opaeated nd raised . And, while this i~ so , t ho statute makes ~~ di~tl 1 c t :on be-

> tween bodies of w·tcr thus situated ane those i n res~oct to wh'ch p.~li c rishts or private easement! exist . I ts langua3e ap li es t o all -tlike . Inieod , the power to ;r otoc t ·1ncl preser ve t ne fish in Jhe w ~ ters of the sta t e woul d be })r qc ti cally nuga tory, i f , "l.S ls co"ltcndod , 1 t \"'as confined to s t r eams and ~ater cournes , and was excl1.1<led in case f all bodies of w.J.tor whi ch were s o far subjected. to .e- rivo.te ovmer ship that t he own~rs W')uld · 4avo a rl._. '"lt to dr ain thc·.,t or fill the~ up, nnd thus de stroy t~em as bodies of wa t or . '!- u, * · -;:- :!- ~ ·- ~ ~:· -:: .:- .:-

" ·~ ·• ::. •• .... .t- .. ' e a:r·o ur.abl o to see how the ~ore fact t~a s a id l ake , ins t ead of h~:tvinL. a c<..n tinual c.Jnnection with the river , has such connec tion or ly during periods of high wnt~r, can have any essential bearing upon tho rights wrich tho owner of the s oi l has in the f ish that happons for tho time being to be

lion . R. P . C. \.i lson III - 9- ~lovember 5 , 1942

in the lake . It is !~possible , therefore , to 0istinguish the present case from thoso arising in relation to other waters in the state to w~ich the statuto is applicable . 1he public interest is i nvolved in bo th in the sa~e way, ·if not to t~e sa~e extent , nnd the .~,>ublic intc"" es t in ~oth i s such as to justify loc ialative int~r~osition.'"

In the case of Sta t e vs . '-.eg~r, 194 r ~issouri 707, 1 . c . 711, the court in discussing the question of the ownership of wild t ame and the un&nimity of opinion that such o nership is vested in t te peopl e of the sta t e, acid:

"lli. authorities ~ uniform i n hol cing that that ~ absolute ownership 2£ wild ,,arne i s vested in ~ people of the ~ta~e , and that such is ne t the subject of private ownership. As no person has in such game any property ri[;hts to be affected , it follows that the l eL:slature , as tho representative of t he peopl e of t ho State , and clothed by them with authority to make l aws , may grant to individuals the right to hunt and kill ga~e at such times, and u.on such t~rrns , an~ under such r strictlons as lt r.:.a y see proper , or prohibit it altogcthC' r , as the Legislature ~ay deen best . (Cases cited . )

".~ c -: ~ ::- ·~ :· - :..- ' • • • • -.: In the lead-ing case upon this subject (GPer v . Connecticut, 1 61 c . s . 519) , : r . Juetice \.r.:.te , says:

" ' l'rom tho earliest trad1 tiona the ri<->ht to reduce an:r.£ls ferae naturae to pos&ession has been subject to tl!c control of tl..e latrgl vine poltor. 1 In speaking of t:' i s po er in ~ age..orty v . I ce I fg . & t torage Co ., supra , ~harwood, J ., snid: ' Tho exercise of tl.is po\"ier has been def­initel y traced back even as far as t1 e tine of Sol on , who for bade the Athenians to kill ra~e . And in .:."rll.D.ce , as early ae tle cal ic law, the ri~ht to reduce a part of the co~on property in game to possession and conseq~ent owners hip

Hen . h . t . C. ~ ilson III - 10- "'Jove:nber 5 , 1942

, was regul a ted by lao:.' . ~uch regulations PJ;"e­vai l e c in every country in continental ;::;urope and in ... n~ la"ld . '1'r eating of this sunject, Bl ackstone sa ·s: 11 •:~1erP- st111 !'f'-r"!~l.,_s another s peci ~s of prerogn tt ve J.)ropcrty, founrled u pon a very dif.:."'3rent pri"lciplo f r o'" any that have been !"entioned before ; the prop rtr of such a"li~~ls ferae na~urae , as are kno\vn by the d~no~i"lation of ~ ame , wi th the ri~nt of pur -Sl' iT'~ , taki ng f.lnd dentroyins tPem, wr,l ch is J ve 1 ted i n th.e kil'lg alo..,e , 0'1d ~ror him derived to such of rJ s sub jects as have r ecr-ived the &rants of a c~uso , a park , a free warren or f ree fiahcry ••••••• I n the f irst plac e , then , we have fllready shown , and indeed it cannot be de!lled, '11a t b:r the law of nature ove:r r man , from t '"le prince to the peasant , has an equal right of p~.lrsui"1C &!ld taki"1L~ to lis ')\m use All such cr"'~tures as a r e ferae naturae , 1\nd , t herefore , the property of nobody , hut l iable to be seized by tho firs t occupant , and so hel d by ~1e imper ­ial l aw even so l ate as Justinian ' s t i me •••••• But it follows f r om the very end and constitution of society that thi s matural right, Ps ~~el l as ~any others belonging to a · a~ as an i~dividual , may be r '3strained by positive l~ws ena c ted for r oasots of ~tate or forte sup~ osed benefit of t h e corn:muni t y . " ( 2Bl . Co ., 410 . ) .-.hl s prer oga­tive of tne king as an attribut e of government recognized o.nd en1'orc ed by t1.e cor.mon l aw of Lngla~d bj a ppropri ate and dtenti~es severe pen­alties "lnd f or f "3itures , was vested in tll~ colo-a:l-

> ial 30ver nr onts t nrew off the yoke f t·c mo ther co lntr y , t hq t rt~ht of s overeicnty passed to an d was vc t'3d in t 1e respective ~ta tos . T~is s over­eign a t t ribute and powe~ as existent in the ~tates of t1is Jnion h&s often been exer-cised by them by passaGe "f l aws in t h e JTios t of t heso cl tntes f or the protection and p reservation of game ; and it see~s never to have been ce lled tn question . ?'u~erous ad judj cation a attest thl s fact . In such cases the co ron owners ip of ga .. e , w .: ch o t her­wise woul d re ~rtf '1 i n the body of ":;he _.~cople , i s lo~_ed ln tlo ~ta ·e to be exorcised l ~ke a : l governmental powers in tne vta.e in i ts sover­ei:n capacity, t o be ·xercised in trust for the benefit of the peopl e and subject, of course , t o such regul ations and restrictions as the

Hon . • P. C . .. i lson III - 11- ?"cvernber r. , 1942

sovercibn powe~ ~ay see r:t to i~posc . Such regulation~ approprlately fall with1r +he do~ain of the police ~o~er of the Ste e .' "

You .further state that tnis citizen hl\S taken out a " Com­me!cial License' . Section 62 of the Li ldlif e ~Forestry Code of " issouri 1942, ,rovides non- game fi sh may b~ taken by the ho l der of a commercial fish ing per m.i t during the p1•escr.:bcd open season by seines, P-te . , :rom t e Ji~sonri ~~d •ssissippi rivers cxcl~s vcly .

Also , Section corr~e rcial fishine

37 of thr Code provides for pe~··t and reads in part: I I

a fee for such

" To r~~s~s:s , and use tro tl'"leo, ~brew l..i.nes , jug lin~s , ~oop nots nnd sc~ne~, except min­n · v1 netF or se~ nes , in the taking of non­game i'1sh. !'ro.,... the J'issour l or ississip_pi . ivers evclus~vrly, qnd to sell such fish , and to sell "'~US ~e ls , in acc0rd"'.nce 'vi th the!;e ~crulatlons , u,on ~ ~ pny~~nt of a resident Oon~ercial ishir~ ~ermi t fee as fo1lows:

I l

"For eacl: 100 l~nF~ ........ crr'lc cr f'·,c~;o.P l.!'~reof of seine •••••••••••••••• • ••••••••••• • 10 . 00

101" "ftC} hOO.t) .,et . • . • o • o • • • ••• ••• o... 1 . 00 For ju£ lines of not to exceed 100 hooks in t>,p 'tt,_:r gate P-nd for any nmnbcr of ~:-- tlincs or thro"' llnea ... .. .. •• • • • • • • • • • • • • • • 1 . 0011

All of which indicel e,_ ~ucb 1-tconacE' sl1all sell non- game fish '- t1ils .:>tn t c when taken ~xclusi vol.t ~ the 1 ias ouri and Mississippi Rivcrs.--

lberef "'O , • t 1~ the op.tn_on of this uop"' rtment that the State may .. ir1 t• o exei•clse of 1 ts police :pov, r , rcr;ul ste the taking of fish in t~~s State from any w~ters r c ardless of the nl.' ture of s arne • 'J'lu~ t ah t~l.; 1•1 ty to rot.. ul ::e the taking of fi sh i e ves~ed in the Conscrvat~on Co~ission under ~action 16 , Art­icle 14 , df t he Constl t;p !:ion of -issouri and in view o.f the rf'Lt.la ... ions adopted by t.he CoiOZ!i ss ion i:1 tho \. ~ldlife and or­es t r y Code of ~i~so~i 1942 , supra , suer citizen c n1no t seine

Hon . R. P. C. ~ilson III - 12- ·ove!l'ber 5 , 1£" 42

r ough fisr in sRid lake without special perrr-1ss1o~ of the Con­s ervation Co~ission of the .... tate of isscuri .

As. .t: .OVED :

FuY l c l"IT'l'RIGK Attorney General or ~i ssouri

ARH : P..AVI

Rospcctfully subnit~~d

AUBREY R. HArt l~TT , .TR . Asnistant Attorney General

t -