Another birthright of Anglo-Saxon jurisprudence — the citizen's dominion over his own property — has been stricken down and laid low, not as might have been expected, by the grasping for power of some inordinately ambitious chief executive, nor yet by action of the legislative branch of our government (which contrarily has sought to preserve the right here denied, 1941 Comp. § 43-301(9), but anomalously enough, through error and misapprehension so easily demonstrable as to make the result announced appear incongruous, by the very department — the judicial — long since come to be regarded as the last refuge and sanctuary of the rights, the liberties and even the lives of the people!
If one be disposed to think this statement evidences undue alarm over the holding today announced by a bare majority of the court, one has only to realize that it but represents the initial precedent which later will be urged as authority for throwing open to public fishery every perennially flowing stream in the state. The majority do little to allay the fears this decision will instill in the minds of landowners generally throughout the state by asserting that trespass on the banks or in the beds of streams is not involved, that "access to this public water can be, and must be, reached without such trespass." (Emphasis mine.) Thus while their opinion gives lip service to the landowner's immunity from such trespass, at the same time it announces a ruling on the issue presented which in its natural and logical implications pulls down the very immunity declared. Protest as they will that the question is not involved, the majority cannot down the obvious fact that it is *Page 256 involved, since a trespass upon these waters as they flow across or rest upon appellee's land, is a trespass upon the land itself.
In spite of the declaration by the majority that their holding does not forecast a subsequent decision upholding the right to use the banks and beds of streams in enjoying this so-called common right of fishery, they can no more destroy the logic of today's contrary holding than they can transmute colors by calling black — white. The holding is that so long as the fisherman may fish without touching the land of another he commits no trespass. It rests fundamentally upon the proposition that such waters are "public." They are no less so when they flow across an owner's land at a depth requiring one to tread upon the land itself in order to enjoy fishery in them. Obviously, the logic and rationale of today's holding is that the fisherman so treading will not be a trespasser. Themselves seemingly sensing the ultimate holding toward which the logic of their opinion leads, and applied would so resolve, the majority's effort to curb and limit its sweeping implications in no way renders it less objectionable nor more consonant with or conformable to sound reason.
If further proof were needed that the foregoing criticism correctly appraises the prevailing opinion in this connection, it is abundantly supplied by the following quotation therefrom with the significant language italicized by me for emphasis, since it is revolutionary in its import and obviously goes beyond the holding thus far of any court, anywhere, which purports to follow and apply the Colorado doctrine of public waters, to-wit:
"The doctrine which made all such waters public, and availableto the general public until in some manner specificallyappropriated to beneficial use, and likewise available for specific appropriation to private use under some system of priority of right, perhaps crude enough at first, has obtained in the Southwest, certainly in the area now comprising this state, for some two or three centuries."
Indeed, the glorification in the prevailing opinion of New Mexico's admitted attractiveness to tourists, especially the fisherman, in which all of us take just pride, the approving quotation from Nekoosa-Edwards Paper Co. v. Railroad Comm.,201 Wis. 40, 228 N.W. 144, 229 N.W. 631: "The small streams of the state are fishing streams to which the public have a right to resort so long as they do not trespass on the private property along the banks," in the knowledge that our small streams are not of a type to which the public may resort without trespassing on the private property of others; the quotations from texts and cases suggestive that the common right of fishery under the civil law confers on the public a right to use the banks of streams and the intimation that our law of public waters is derived from the civil law through Spanish and Mexican sovereignty — these and, in fact, the opinion's ratio decidendi itself — in my judgment, fairly place it on record in bold advocacy of throwing open to *Page 257 public fishing all streams in New Mexico even though crossing privately owned and enclosed lands.
Much of the confusion in which the majority have become enshrouded in their consideration of this case arises from the effort to treat literally the constitutional declaration that waters in flowing streams "belong to the public." If they belong to the public, then the public owns them and all have a common interest in public property. Thus runs the train of thought. So, from this starting point and weighing the several attributes and incidents of title and ownership of ordinary property, as commonly understood, the follower of this false logic is lead easily and inexorably to the conclusion that where a given thing belongs to the public, a common right in its use and enjoyment exists. Hence, the result announced by the majority.
Now, it is misleading and brings one to false results to speak or conceive of waters as "private" or "public," if by such designations it is intended that waters of the one class are the subject of individual ownership and by the other of public ownership. Water in a running stream, with or without a constitutional declaration that it is "public" is no more capable of ownership, public or private, in the ordinarily understood sense, than is the air we breathe. This is a fact of life requiring but its statement to establish its truth. The prevailing opinion agrees, as all of us know, that our constitutional expression on the subject, Const. Art. 16, § 2, is merely declaratory of what the law already was in this jurisdiction and, as a practical matter, in jurisdictions the world over, as to flowing waters. The rationale is that, being incapable of ownership by anyone owing to their elusive and migratory character, they are the property of none and, hence, belong to all — the public; or, as is sometimes said, what is nobody's is everybody's — the public's. The fee simple owner of real estate is said to own from the center of the earth to the skies — "a coelo usque ad centrum" — but it has never been supposed that this "ownership" as it relates to the air was anything more than a right of control to the height man could exert control. And all that was ever intended by the declaration that certain waters are public, be it found in statute, constitution or decision, is that their use may be controlled and regulated for the benefit of the public. Cf. State v. Cochran,138 Neb. 163, 292 N.W. 239, 247; United States v. Tilley, 8 Cir. 124 F.2d 850, 860. Hence, to classify waters as "private" or "public," extending to the one an exclusive and to the other a common right of fishery with ownership the test is to apply a false criterion since there is no genuine ownership in either instance. Nevertheless, such a distinction is made the basis of the reasoning of the prevailing opinion throughout. The premise being false, the entire argument founded on it must fail.
Two decisive considerations establish convincingly the error into which the *Page 258 majority have fallen. In the first place, the common law applies and under it the owner of the soil has an exclusive right of fishery in the waters involved. In the second place, even if correct in the claim that the appellee possesses no exclusive right of fishery in these waters, the state as a police measure, by a statute whose validity has never been challenged, has expressly denied to the licensees on whose behalf appellant presumes to speak, the right to fish within the private enclosure where these waters are resting. 1941 Comp., § 43-301(9). The correctness of either proposition abundantly supports the judgment entered in this case, and both being correct, it is doubly fortified.
Let us notice the first proposition. The prevailing opinion freely admits in its opening passages that under the common law the appellee has an exclusive right of fishery in and upon these waters, although toward its close, as though grasping for every reed of support, however slender, it goes so far as to claim support for its position, even under the common law. Fundamentally, though, and by and large, it asserts the common law has nothing to do with the matter. It argues that the doctrine of riparian rights as known to the common law has been so thoroughly repudiated in this jurisdiction that not the tiniest shred remains. Conceivably so, possibly, but in order to make its argument stand up, the appellant must establish the truth of this claim or it hopelessly and ignominiously fails. Unhappily for it, the argument simply cannot stand the acid test of careful analysis.
In 1876, the territorial legislature enacted: "In all the courts in this territory (state) the common law as recognized in the United States of America, shall be the rule of practice and decision." 1941 Comp., § 19-303. The effect of this statute is set forth by this court in Beals v. Ares, 25 N.M. 459,185 P. 780, in the following language, to-wit:
"When the Legislature in 1876 adopted the common law as the rule of practice and decision, the whole body of that law as limited in the case of Browning v. Estate of Browning, supra, came into this jurisdiction. Where it found a statute counter to its provisions, it yielded to the statute, but it gave way only in so far as the statute conflicted with its principles. In so far as was possible it operated in conjunction and harmony with the statutes. If the statute conflicted with it, it bided its time, and upon repeal of the statute became again operative. In other words, the common law, upon its adoption, came in and filled every crevice, nook and corner in our jurisprudence where it had not been stayed or supplanted by statutory enactment, in so far as it was applicable to our conditions and circumstances."
The limitation on the wide sweep application of the common law was to have in this jurisdiction, as laid down in Browning v. Estate of Browning, 3 N.M., Gild. (E.W.S.) 659, Gild. (B.W. Co.) 460, Johns. 371, 9 P. 677, 684, to which reference is *Page 259 made in the foregoing quotation from Beals v. Ares, is set forth in the following language from the former case, to-wit:
"We are, therefore, of opinion that the legislature intended by the language used in that section, to adopt the common law, or lex non scripta, and such British statutes of a general nature not local to that kingdom, nor in conflict with the constitution or laws of the United States, nor of this territory, which areapplicable to our condition and circumstances, and which were in force at the time of our separation from the mother country." (Emphasis mine.)
Thus it is that the common law doctrine of riparian rights was transplanted into this jurisdiction in its entirety unless rejected because deemed inapplicable "to our condition and circumstances." If deemed inapplicable in its entirety, then no part of that doctrine was ever the law of New Mexico. But the mere fact that some parts of it were unsuited to local conditions did not have the effect of condemning the entire doctrine thus resulting that we separated the wheat from the chaff, as it were, retaining the good and rejecting the bad. In other words, to speak figuratively as we did in Beals v. Ares, supra, and likening the riparian rights doctrine to a cloud, when it began to settle over our jurisprudence it found much of the field elsewhere completely occupied by it already taken over by this so-called Colorado doctrine based upon diversion of waters and application to beneficial use. These strange peaks, which to carry on the figure will represent the Colorado doctrine, rising to dispel and displace the descending cloud, prevented much of the latter from ever finding lodgment here. But to the extent the field was not completely occupied by them, the cloud continued to descend and, as said in Beals v. Ares, "came in and filled every crevice, nook and corner in our jurisprudence."
And so it is that in the "crevices, nooks and corners" of our jurisprudence, never supplanted or repealed by any hostile legislation, will be found in our law so much of the common law doctrine of riparian rights as does not conflict with a full exploitation of the dominant purposes of the contrary doctrine, in full flower here at the time of the adoption of the common law. In other words, to paraphrase the language of this court in Beals v. Ares the riparian rights doctrine "gave way only in so far as the Colorado doctrine conflicted with its principles. In so far as was possible the doctrine of riparian rights operated in conjunction and harmony with the Colorado doctrine."
The majority do not so much as attempt to point out, nor can they, in what respect the retention by the landowner of his exclusive right of fishery in a non-navigable stream crossing his land is either destructive of or inconsistent with the fullest exploitation by the public of the diversion of such waters from the stream and their application to beneficial use, whether such use be for mining, milling, irrigation, *Page 260 manufacturing, power, or for any other known use to which water may be dedicated. Until this showing can be made, the exclusive right of fishery survives.
My conviction that the appellee has the exclusive right of fishery rests fundamentally upon the proposition that such was his right at common law, and that our legislature and decisions have not thus far seen fit to deny him, or take from him, that right. It is a rule of construction, well recognized, that the common law is to be deemed superseded only when such a holding seems inescapable. 12 C.J. 186, 15 C.J.S., Common Law, § 12, p. 619. It is presumed to continue in force until displaced by express statutory authority, or compelling reasons of public policy. Neither reason for its displacement or for superseding it appears here.
While this exclusive right of fishery may seem unimportant at first blush, in my opinion, it is of the very highest importance because it rests upon the same foundation as that which supports the age-old dominion of an owner over his freehold estate. It may not be amiss to recall that for some time there has been a developing school of thought holding to the proposition that the great natural resources of mankind, so essential to human welfare, should not lie in private ownership. I will mention only a few, such as coal, oil, natural gas, etc. The philosophy back of such an idea is that God placed these great natural resources in the bowels of the earth, and that no single individual should be permitted to acquire ownership in them. It is the old struggle — public against private ownership — limited, for the time being, at least, to the great natural resources so essential to man's existence. Extended beyond that and embracing all kinds of property, it would, of course, create a communal state. Naturally, such a philosophy is directly opposed to our system of privately owned property as the reward of free enterprise.
The extremes of the two schools of thought, private ownership versus public ownership, must meet and compromise on common ground as to some of these properties, such as coal, oil, natural gas. The claim of common ownership must be satisfied with government control and conservation in the interest of the public. As to such an essential as water, of course, we have the outright constitutional declaration that, when in natural streams, it belongs to the public. But we have never yielded to the idea that natural resources, such as coal, oil and natural gas belong to the public. They are still the subject of individual ownership as a reward of private enterprise. And even as to waters, the public interest therein is absolute only to the extent necessary to accomplish the dominant purposes provoking the declaration that they belong to the public. The right of fishery as here involved is not one of those purposes.
The wild berries growing upon my land are exclusively mine, and merely because they are wild no stranger has the right to trespass and pick them. The exclusive *Page 261 right of fishery in non-navigable streams is just as sacred as an owner's exclusive right to pick wild fruit and berries upon his own land. When, by virtue of public ownership of waters flowing in natural streams, we take away from an owner through which a non-navigable stream flows rights in such waters appurtenant to ownership of the land and unessential to the attainment by the state of the dominant purposes underlying the constitutional declaration that such waters belong to the public, then, in truth and reality are we violating the constitutional inhibition against the taking of private property for public use without just compensation. It is my prediction that it will represent but the first step toward taking away other rights until now deemed no less secure.
The constitutional declaration on the subject of waters but recognized the existing status of perennially flowing streams, as it had been established by custom and judicial decision in the semi-arid west. And that custom and those judicial decisions uproot the common law only to the extent of holding such waters in trust in the state for appropriation to public uses. Until such time the common law right of the landowner in the use of waters flowing across his land remains, including his exclusive right of fishery. It can no more be taken from him, lawfully, without just compensation, than can a right of way for a ditch, to convey such waters to the land of his neighbor.
Let me put the matter in this way: A owns land across which flows a perennial stream carrying a substantial flow of unappropriated waters. Thus, without in any manner impairing or curtailing the use of waters in the stream by those having lawful priorities therein by virtue of vested or licensed applications to beneficial use, A uses the waters on his lands for irrigation, for powering a mill, for watering his stock, or for any other needed purpose. Has he committed a trespass? If so, against whom? If not, then by what right has he enjoyed the use of such waters if not as a hereditament, corporeal or incorporeal, attached to his land and incident to his ownership thereof? And, if it be either, where do you find it defined as such, if not in the common law? Neither man-made laws nor human declarations, in statute or constitution, can revoke or nullify a law of nature. Joshua made the sun stand still and Moses opened a way across the Red Sea for the children of Israel but all of us believe God had something to do with those miracles.
And so it is that when water in the form of rain from the heavens falls on A's land and flows by natural drainage across the same to the channel of some stream, enriching and irrigating as it flows, even after entering the channeled stream, what constitutional or statutory declaration that such waters are "public" or "belong to the public" can gainsay to the landowner such advantage as a natural right incident to his ownership of the land? Nor can the state, as trustee of these waters for the public, with any greater claim in reason, logic or law, challenge any use he might make of *Page 262 unappropriated waters while on his premises that neither impairs nor diminishes the use by vested or licensed applications to beneficial use by other appropriators.
I make no argument that appropriation of waters to recreational purposes, such as fishing, boating and the like, may not be deemed a beneficial use and properly so — I have conceded that all along. Nor do I deny that private property may be taken for devoting waters to such purposes upon a proper showing and compensation to the owner therefor and for the rights and privileges incident to ownership of such property. All I claim in this connection is that before you can take from me my exclusive right of fishery in nonnavigable waters flowing across or on my land, you must compensate me for it just as you would if you took a part of my land. And such was the view, too, of the public authorities when they made the contracts and conveyances which gave rise to this controversy. The majority appraise the right of fishery very highly in establishing its character as a beneficial use but reduce it to a low estate or rank in a holding which takes it from the landowner as an exclusive right without compelling payment therefor.
It is interesting to note how the majority escape the effect of the damaging admission they are forced to make that at common law the right of fishery in these waters in their original state flowing over appellee's land was exclusive. They do it by qualifying the admission instead of admitting it outright as immemorially declared in text and decision. The rationale of the prevailing opinion is to admit only that enjoyment of the right is exclusive. The reasoning runs that the public has possessed the right all along but because only the owner is so situated that he can enjoy it without trespass, such enjoyment and not the right itself, is exclusive. This is drawing the bead too fine for me and such reasoning ignores and blinds itself to the fact that the right springs from ownership of the land — not as a mereaccident of ownership but a prerogative of ownership. Furthermore, it is pertinent to inquire: Does that attain the dignity of a right in any one of the one hundred thirty five million people populating this country each of whom is said to possess this common right, save in him alone who can lawfully enjoy it? The question answers itself.
Only one case has been called to our attention that is exactly in point. It is Hartman v. Tresise, 36 Colo. 146, 84 P. 685, 4 L.R.A., N.S. 872. It fully sustains the appellee in the case at bar in its contention that its right of fishery in the waters in question is exclusive. The decision was by a divided court and the majority here elect to follow the minority or dissenting opinion rather than the majority holding which, to my mind, is much the better supported in logic and reason. Any effort to weaken its force by the circumstance that the decision is by a divided court or that the court rested its decision as well on another point, Chase v. Lujan, 48 N.M. 261, 149 P.2d 1003, in no manner detracts from it as supporting *Page 263 authority. In so far as a decision of the question discussed so much at length hereinabove is concerned, I am quite willing to rest my dissent upon the Colorado case just cited. Its reasoning is unanswerable.
There is still another support for the judgment rendered which is absolutely conclusive of its correctness. 1941 Comp., § 43-301(9), so far as material, provides:
"(9) No * * * fishing license shall entitle the holder therefor to * * * fish * * * within or upon any privately owned enclosurewithout consent of the owner." (Emphasis mine.)
Apparently, this statute was not called to the attention of the trial court. Its effect is twofold. First, it is a legislative recognition that the law on the main question is as contended by appellee. In the second place, even if appellee be wrong in its contention, this statute stands as an insuperable barrier against awarding appellant the relief prayed. It has never been declared invalid. Indeed, its validity has never been challenged. The state which issues the license may impose such reasonable conditions on its use as it sees fit. But, reasonable or unreasonable, this condition stands as an effective barrier to a holder doing the very thing appellant asks this court to declare he has the right to do, unless and until at a proper time and in a proper forum, it is stricken down. The declaration of its unconstitutionality in the prevailing opinion, in order to support reversal, reviews no ruling of the trial court and is contrary to all precedent by reason thereof. Hutchens v. Jackson, County Treasurer, 37 N.M. 325, 23 P.2d 355.
In an effort to avoid the damaging effect of this statute, it will not do to urge that it injects a new theory. It does nothing of the kind. Mayfield v. Crowdus, 38 N.M. 471, 35 P.2d 291. It is simply another good reason supporting the judgment rendered and properly to be considered, even if the one upon which the trial court rested judgment should prove wrong. Lockhart v. Wills,9 N.M. 344, 54 P. 336. Nor does it lie in appellant's mouth to claim there is no proof that these waters are within a private enclosure. State Game Commission is relator herein. Its members and employees of all persons within the state are presumed to know the game and fish laws. If it be the law, as appellant urges and the majority hold, that appellee does not possess the exclusive right of fishery in these waters, such has been the law all along and the state and the relator cannot be excused for ignorance thereof. Thus the only plausible explanation that can be given why appellant saw fit to contract the right of fishery over any part of the waters impounded by the Conchas Dam is that they lay within the private enclosure of an owner whose consent was required under the statute in question. But for the statute, if the law on the main question be as today declared, there was no occasion to contract for a right of fishery. The state — the public — possessed it already. The appellant may not now avoid the conclusive effect of its act in this behalf by pleading ignorance of the law. *Page 264
I heartily concur in the able dissenting opinion of my brother Bickley which establishes convincingly that, until today, the law was as claimed by the appellee. Regrettably, the result of this decision is to tear down safeguards which have existed almost from the beginning where Anglo-Saxon jurisprudence prevails for the protection of an individual's dominion over his own property. The common law has dramatized the sanctity of the home and premises of the individual against invasion by strangers and trespassers in the age-old maxim: "A man's house is his castle." So it was and immemorially has been but no more, to view the matter realistically, since henceforth a rod, reel and fly are to perform the office of a writ of entry.
I dissent.