I am of the opinion that the judgment of the court below should be reversed and the bill dismissed, because in my opinion what was done in this case was authorized by law; and that Louis Fritz Company, complainants in the court below, appellees here, had no right in the fish captured and sold under the arrangement made by the State Game and Fish Commission, in its effort to protect the game fish in South Horn Lake, or Lake View, in waters over the land of the complainant, Louis Fritz Company.
Chapter 123, Laws of 1932, is quite comprehensive, and it would be difficult to set forth the many provisions bearing upon the controversy here involved. A careful reading of the whole act, I think, shows power to do all that was done. Under its police power the state and its agents may go upon any stream or lake to exercise such powers. The riparian owner takes his title subject to this easement of the state. The state can exercise its trust in behalf of all people in no other way. The right of the riparian owner is subject to an easement of the state to assert its power to use the channel in the exercise of its own rights. Steamer Magnolia v. Marshall, 39 Miss. 109; Richardson v. Sims,118 Miss. 728, 80 So. 4.
In section 4 of the act the Commission is given power to make rules and regulations, to inaugurate studies and surveys, and to "establish such services as they may deem necessary to carry out the provisions and purposes of this Act, and any violation of any of the provisions of this Act or of any rules or regulations promulgated by the Commission shall constitute a misdemeanor."
It is further given authority:
"(a) To close or shorten the open season as prescribed by law in cases of urgent emergency on any species of gamebirds, game or fur-bearing animals, or fish, in any specified locality or localities, when it shall find after investigation and public hearing, that such action is reasonably *Page 571 necessary to secure the perpetuation of any species of game birds, game or fur-bearing animals, or fish and the maintenance of an adequate supply thereof. The statutes governing such subjects shall continue in full force and effect, except as further restricted and limited by the rules and regulations promulgated by the Commission.
"(b) To designate, with the consent of the owner or owners, such localities as it shall find necessary to secure perpetuation of any species of game bird, fur animal, or fish and the maintenance of an adequate supply thereof, as game, bird, fur animal, or fish refugees for the purpose of providing safe retreats in which game, birds, fur animals, or fish may rest and replenish adjacent hunting, trapping or fishing grounds or waters.
. . . . . . "(e) To capture, propagate, transport, sell or exchange any species of game birds, game or fur-bearing animals, or fish needed for stocking or restocking any lands or waters of the State.
"(f) To enter into cooperative agreements with persons, firms, or corporations or governmental agencies for purposes consistent with the purpose of this act.
. . . . . . "(i) To have exclusive charge and control of the propagation and distribution of wild birds, animals and fish; the conduct and control of hatcheries, biological stations and game and fur farms owned or hereafter acquired by the State; to expend for the protection, propagation or preservation of game birds, game or fur bearing animals and fish all funds of the State acquired for this purpose arising from licenses, gifts, or otherwise and shall have charge of the enforcement of all the provisions of this Act.
. . . . . . "(k) To regulate the taking of non-game gross fish, and prescribe the manner of taking same." *Page 572
It is provided that this section shall not apply to or affect any contract theretofore entered into by any board of supervisors of any county for the taking of non-game gross fish. The Commission is also given authority to cooperate with the several departments and officers in the conduct of matters in which the interests of the respective departments or officials overlap.
In section 8 of the act the Commission is given power to dispose of contraband animals, birds and fish. In section 11 the State Director is given power to appoint wardens with the approval of the Commission. By section 16 it is provided that the Director of Conservation shall have general supervision and control of all wardens, and under the supervision of the Commission, "shall enforce all the provisions of the laws and regulations of the State relating to wild animals, birds and fish, and shall exercise all necessary powers incident thereto not specifically concerned on the Commission."
It is also provided in the section that the State Director of Conservation and each of the wardens "shall have power, and it shall be the duty of said Director and of each of such warden to execute all warrants and search warrants for a violation of the laws and regulations relating to wild animals, birds and fish; to serve subpoenas issued for the examination and investigation or trial of offenses against any of the provisions of such law or regulations; to make search where such warden has cause to believe and does believe that animals, birds or fish, or any parts thereof, or the nest or eggs of birds, or spawn of eggs of fish are possessed in violation of law or regulation, and in such case to examine, without warrant, the contents of any boat, car, automobile, or other vehicle, box, locker basket, creel, crate, game bag, or other package, to ascertain whether any of the provisions of this Act or any law or regulation for the protection of animals, birds or fish have been or are being violated," etc. *Page 573
By section 22 of the act a State Game and Fish Fund is created, and required to be paid into the State Game and Fish Protection Fund, to be used by the Commission and the State Director of Conservation, for the purpose of carrying out the provisions of this act, etc.
By section 27 of the act the game animals, birds and fish are named, and closed and open seasons are provided for, stating the time when birds, animals or fish may be lawfully taken; and hunting and fishing licenses are provided for in the act.
Under section 61, it is unlawful to kill or take fish of the bass family under eight inches in length, or of the sunfish family under four inches in length.
By section 62 it is made the duty of every person to return to the water any game fish taken out of reason, or those caught under legal size, by means of nets, seines or other contrivances used for the taking of fish not classified as game fish.
By section 63 it is provided that it shall be unlawful for any person to sell, offer for sale or exchange any game fish enumerated in the act, whether taken within, or coming from without the state. Providing, however, that the Commission may issue a permit to the owner of a private pond to sell fish grown or cultivated by such owner under such regulations as the Commission may deem wise.
By section 64 it is provided that a non-resident fishing license shall be issued to non-residents of the state upon application in the same manner and by the same authorities mentioned for issuance of hunting licenses, upon payment of a named fee. These and many other provisions of the act vest large power and discretion in the authorities.
There are many other provisions of the act which do not apply to fish, and are unnecessary to set forth in this case. It will be seen from the provisions set forth that it was the purpose of the legislature to vest in the Game and Fish Commission, and the officers named, comprehensive *Page 574 powers for the regulation and protection, propagation and conservatism, of fish and game, for the benefit of all the inhabitants of the state.
The act here involved is the contract by the Game and Fish authorities named therein, with certain persons to destroy predatory fish and water animals, such as turtles, etc., so as to preserve the edible fish for the benefit of the public. The contract gave the parties contracted with the right to sell certain non-game gross fish, and in my judgment they were authorized to do so.
Under the terms of section 4, among other powers they are authorized to establish such services as they may deem necessary to carry out the provisions of the act. The service here established under the contract comes clearly within the granting power. If fish are to be conserved, preserved and propagated as a food supply for the inhabitants of the state, such fish and animals as prey upon and destroy them must be gotten rid of, and the service in so doing comes clearly within the act. The Commission generally has power to regulate and provide conditions under which it may act, and for the carrying out of the service provided for the taking of certain gross non-game fish in seines and nets, and these may be given as compensation to the parties undertaking to destroy predatory fish, animals, etc.
There could be no dispute about the power of the Commission to destroy these predatory animals, and for that purpose to expend part of the game and fish fund. Consequently, incident to securing the services contracted for, the Game and Fish Commission may give as part or the entire compensation for the work of taking them, such non-game gross fish, prescribing the manner of taking them, as set forth in clause (k) of section 4 of the act.
In Ex parte Fritz, 86 Miss. 210, 38 So. 722, 723, 109 Am. St. Rep. 700, it was held that fish, being ferae naturae, were not the property of any person until subjected to his control; that until so reduced to possession by some person the title thereto is in the state. In the *Page 575 course of the opinion the Court said: "It is proper to state, however, in passing, that, conceding all the claims, it is not shown that he owns or has acquired the right to fish in the entire lake. It is perfectly clear that he does not own the fish in Horn Lake, and this would be true even if he owned the bed of the entire lake and all its waters. 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. In all running streams, large lakes, small lakes with outlets into other waters, the right of the state to regulate the time, the manner, and extent of the taking of fish is unquestioned. It is part of the police powers of the state, which has never been parted with, and cannot be surrendered. By reason of the migratory habits of fish, their ownership is in the public, and no individual has any absolute property right in them until they have been objected to his control. 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."
It will be seen from this case that until reduced to actual possession, all property rights in fish exist in the state for the benefit of the whole people. In the latter case of State v. Buckingham, 93 Miss. 846, 47 So. 501, 502, in the opinion rendered by Judge Calhoon it is declared: "It is now settled that the sovereignty is the owner of wild game, on the idea that animals, birds, and fishes, wild by nature, may be preserved as a food supply for all the inhabitants. It is settled that the sovereignty may have closed seasons, in which the destruction of all [wild fish and game] may be actually forbidden, and it may delegate this power to the several boards of supervisors of the various counties." *Page 576
In the case last referred to the statute expressly permitted landowners to hunt upon their own lands in season, not prohibited, and may permit non-resident relatives or friends to hunt with them.
Again, in State v. Jim Hill, 98 Miss. 142, 53 So. 411, 31 L.R.A. (N.S.) 490, it was held that the state is the owner of all wild game, such as animals, birds and fish, within its borders; and that section 2305 of the Code of 1906 conferred on the board of supervisors full jurisdiction and authority to protect and preserve all game and fish in their respective counties, and to conserve the same for the use and consumption of the inhabitants, and that the word "inhabitants" applied to the inhabitants of the entire state. In that case it was held that the action of the board of supervisors under section 2305, Code 1906, limiting the taking of fish in the streams of the county to the inhabitants of the county, violated section 2 of the Fourteenth Amendment to the Constitution of the United States, U.S.C.A.
In the case of Keel et al. v. Harrison County Supervisors,126 Miss. 195, 88 So. 625, it was held that under the Code of 1906, section 2304, section 4699 of Hemingway's Code, conferring upon the boards of supervisors full authority for the protection and preservation of fresh-water fish in their respective counties, such boards may prohibit the use of nets and seines, etc., for the catching of fish in any of the waters of their respective counties, although such waters may be inhabited by sea fish as well as by fresh-water fish. In the Court's opinion in that case, at page 201 of 126 Miss., at page 625 of 88 So., it is said: "It is true that under section 2304, Code of 1906, section 4699, Hemingway's Code, the jurisdiction given boards of supervisors over fish in their respective counties includes only fresh-water fish; nevertheless they are given by the following section of the Code full `authority for the protection and preservation of game and fish in their respective counties,' which, ex vi termini, includes the power to do whatever is necessary *Page 577 for their protection and preservation." This decision follows the well-known rule of constitutional and statutory construction that whenever a power is given, either by constitution or by statute, there is given with it, by necessary implication, the right and power to exercise such powers as are necessary to the carrying out of the power expressly granted.
Another interesting case upon the subject here involved is Barataria Canning Co. v. Jos. Ott et al., 84 Miss. 737, 37 So. 121, where it was held that under the Revised Code of 1880, section 956, granting boards of supervisors of the counties bordering on the Gulf of Mexico jurisdiction in the matter of the protection and preservation of oysters growing and being grown within the limits of their respective counties and with power to grant private rights of property in oysters banked, planted or cultivated in the waters of the county, is constitutional, and a private right to bank, plant and cultivate oysters in the waters of the sea, within the limits of the county, acquired from the board of supervisors under said statute, is valid. It was also held in this case that in the absence of an express statute the owners of land bounded by the sea possess no exclusive right to the soil under the water beyond high water mark, and they have no greater right than others of fishing and gathering oysters from natural beds in front of their property
This case is peculiarly interesting because of the fact that without the statute referred to all of the inhabitants had equal rights in regard to bedding, fishing, gathering and canning oysters in the waters of the sound; but the state had a right to confer upon particular persons for a specified period of time, exclusive authority to exercise such right and use.
There is some difference, of course, in the rights of owners whose property abuts on the tide waters, and those on streams which do not abut on such tide waters. But the case is interesting from the fact that it was held to be within the power of the legislature to grant to *Page 578 particular persons or concerns exclusive right to such waters. The rights of all the inhabitants of the state are equal as regards the fish and game of the state. Fish and game, as well as the waters which they usually inhabit, are migratory — moving from one place to another; and the owner of the land owns neither the water which flows past, nor the fish therein, nor the migratory birds which go upon his land, until he has actually taken possession of them.
It was argued at the bar that a person going upon the land of another without his consent is a trespasser, and that any game or fish taken by a trespasser becomes the property of the owner of the land whereon they were taken. This is not correct, for the reason that every person has an equal right to take game and fish; and while a trespasser can be punished for trespassing, he is not deprived of the possession of his game which he has taken, unless the law, by competent statute, provides that they should be forfeited as a penalty for trespassing, or as accompanying the trespass.
A negro may be a trespasser upon the land of his landlord, in which case the landlord can prosecute him; but his rabbit or other game may not be taken from him, because when he took possession of it, it was not the property of the landlord.
By clause (e) of section 4, set out above, the Game Commission has authority "To capture, propagate, transport, sell or exchange any species of game birds, game or fur-bearing animals, or fish needed for stocking or restocking any lands or waters of the State."
By a provision of clause (a) of section 4, set out above, it is provided that "The statutes governing such subjects shall continue in full force and effect, except as further restricted and limited by the rules and regulations promulgated by the Commission."
Therefore, construing the provisions of this act, in the light of previously existing laws, the proprietary interest of the state remains, and its powers of supervision *Page 579 thereof were validly delegated to the Commission, and the other officers provided for in chapter 123, Laws of 1932.
Under clause (i) of said section 4 of said chapter the Commission has exclusive charge and control of the propagation and distribution of wild birds, animals and fish; the conduct and control of hatcheries, biological stations and game and fur farms owned or hereafter acquired by the state; to expend for the protection, propagation or preservation of game birds, game or fur-bearing animals and fish all funds of the state acquired for this purpose arising from licenses, gifts, or otherwise and shall have charge of the enforcement of all the provisions of the act.
By clause (f) the state has the power to enter into cooperative agreements with persons, firms or corporations or governmental agencies for purposes consistent with the purpose of this act. The agreement here involved is such an agreement as is embraced in and contemplated by this clause of section 4. The state being the owner of such title as exists in animals, birds or fish within the state, and being charged with the duty of capturing, propagating, selling or exchanging any species, it has, as a consequence, the right to make all contracts appropriate or necessary to carrying out the granted power. The very fact of acting to conserve and propagate carries with it the power to protect the fish, birds and animals by any appropriate means. This is a part of the police power of the state, which it was said, in Ex parte Fritz, could not be surrendered by the state; the power to govern such matters in the interest of the people. In the exercise of its police powers the state may go upon any lands, to gain access to streams and places where such game birds, animals or fish exist, in order to see that they are not destroyed either by persons or by predatory fish, birds or animals. Owners of riparian lands have only such rights as are consistent with the free and full exercise of the powers of the state; otherwise, *Page 580 how could the state, or its agents, preserve the game animals, birds or fish?
The common law of England does not prevail in this state in such matters. In the case of cattle running at large it was held that the law of England, requiring the owner of cattle to confine them to his own lands, did not prevail here, because not applicable to our conditions; and that consequently the cattle which strayed upon the lands of another were not trespassing. It has been the custom from the beginning in this state, so long that the memory of man runneth not to the contrary, that a person may go upon the wild lands of another, unless such lands be posted in the manner prescribed by law, or unless expressly notified and warned not to do so. It required a statute to change the law with regard to cattle; but the law with reference to hunting and fishing, even as to individuals, has not been changed, except as provided in the chapter above discussed.
The state itself is the owner of running water within its borders, and of the fish therein until they are captured; and of the game animals and birds, until they are reduced to possession; and incident to this ownership is the right to inspect, police and protect it. The rights of land owners in respect to these matters is limited — they cannot exercise unlimited ownership either above or below the surface of the land. How could supervision or transportation be carried on if the parties authorized to perform these acts were subject to prosecution for trespass? It is important here to stress this police power connected with the state's ownership of the fish and game of the state in trust for the people of the state. Taking the statute as a whole, with the common law as it exists in this state, as declared in the above decisions, it seems clear that the state has a right to make it possession and ownership of fish and game absolute, and to prohibit the taking by private persons at all. Such seems to be within the legislative power; and it seems to me this is expressly held to be within the power *Page 581 of the government in the case of Barataria Canning Co. v. Ott,84 Miss. 737, 37 So. 121, supra.
I am therefore convinced that the judgment of the court below was erroneous, and that it should be reversed, and judgment rendered here dismissing the bill.