I am of the opinion that the court below was correct in holding that Chapter 123, Laws 1932, does not confer on the State Game and Fish Commission authority to remove gross non-game fish from lakes and streams. No section of the statute expressly confers such authority, and no such authority can be inferred from any section when construed either separately, in connection with others, or with the purpose for the accomplishment of which the statute was enacted. We have no occasion, therefore, to determined what authority, in this connection, the *Page 568 State through its legislature could have constitutionally granted the State Game and Fish Commission, nor have we any occasion to hold that Commission or its members accountable for unlawful acts committed by it, if any, except in so far as injury was thereby inflicted on the appellee. There being no governing statute, what rights of the appellee, if any, that here were invaded by the appellant must be determined by the common law.
The appellee owns that portion of the bed of the lake to the center thereof, lying opposite the shore of the lake owned by it, and where it owns the shore on opposite sides of the land, it owns the entire intervening bed of the lake. This is well established by former decisions of this Court. It does not own the water above its land nor the fish that may be therein. "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. . . . It is held with practical unanimity in all jurisdictions that animals ferae naturae are not the subject of private ownership until reduced to actual possession; that the ownership of such animals, so far as they are 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." Ex parte Louis Fritz,86 Miss. 210, 38 So. 722, 723, 109 Am. St. Rep. 700; State v. Buckingham, 93 Miss. 846, 47 So. 501; State v. Hill, 98 Miss. 142, 53 So. 411, 31 L.R.A. (N.S.) 490. It follows from this, and was so held in State v. Buckingham, supra, that all of the people have an equal right to take and appropriate fish in their wild state. This right is necessarily affected and qualified by the fact that, in taking fish, one must not trespass on the land of another.
The Carrigans, employees of the appellee, obtained access to the lake over the land of a riparian owner with his consent. Did that fact give them the right to take fish from that part of the like which was over the appellee's submerged land? *Page 569
The existence of this lake is made possible by the fact that its waters are supported and confined by the land belonging to the several riparian owners. Without this support and confinement of its waters, there would be no lake for any riparian owner to fish in. While there is authority to the contrary, there is respectable authority, with which I concur, holding that each of several riparian owners, is licensees, and members of the general public who can gain access thereto without committing a trespass in so doing, may use the entire surface of the lake for fishing so far as he does not interfere with a similar reasonable use thereof by others, except such fishing as requires the use of the shore or bottom of the lake, the right to which is in the owner of the shore or bottom. 22 Am. Jur., Fish Fisheries, Sec. 21; 26 C.J. 599; Beach v. Hayner, 207 Mich. 93, 173 N.W. 487, 5 A.L.R. 1052.
The Carrigan Company being licensed by a riparian owner so to do committed no trespass in gaining access to the lake; consequently it had the right to take and appropriate fish therefrom but did not have the right to make use of the appellee's portion of the shore and submerged land of the lake in so doing.
It follows from the foregoing views that I concur in holding that the judgment against the State Game and Fish Commission for the value of the fish taken by Carrigan Company, its employee, should be reversed and the bill dismissed in so far as it prays therefor, but that the injunction granted should be modified and limited to restraining the State Game and Fish Commission, its members, and employees from using appellee's portion of the shore and submerged land of the lake for fishing purposes.
It may be that the legislature has not authorized the Fish and Game Commission to be sued; but, as to that, I express no opinion as we have no occasion to consider it. *Page 570