concurring specially:
I think the judgment below should be reversed, and to this extent concur in’ the majority opinion. I do not, however, think it necessary in reaching this "conclusion to gu into' the important question of *153riparian rights, upon which the court divides. It is said by our attorney general, who* appears as an amicus curiae, also by other amici curiae, all of whom are of counsel in the case now pending between this commonwealth and the state of Kansas in our national supreme court, that the questions considered in the majority and minority opinions are to some extent involved in that case. It would seem to be wise to avoid discussing unnecessarily here any question that may be ruled there.
The facts involved herein are simple: Plaintiff was the owner in fee of certain lands, which were enclosed, and through which ran a section of Tumiche creek; defendant, standing in the bed of this section of the stream, frequently fished therein, and when requested to desist refused to do' so, and asserted his right to continue the alleged trespass. I think, as stated by one of amici curiae, the simple question here is: Has a fisherman the right to- fish where the game law says he shall not?
The question involved arises under the game laws of 1899, chapter 98, the amendments of 1903, not affecting them when the proviso of that year, found in subdivision 7, § 7, Laws 1903, p. 233, discussed in the main opinion and held therein to be unconstitutional, is eliminated. Section 16, division a, Laws 1899, chapter 98, reads as follows:
“All game and fish now or hereafter within this state not held by private ownership, legally acquired, and which for the purposes of this act shall include all quadrupeds, birds and fish mentioned in this act, are hereby declared to be the property of the state, and no right, title', interest or property therein can be acquired or transferred, or possession thereof had or maintained, except as herein expressly provided. ’ ’
•Illinois has a similar statute, and in Meul v. The People, 198 Illinois 258, it is said:
*154“Prior to this enactment the state had general ownership of animals ferae naturae — not as a proprietor, but in its sovereign capacity, as the representative of the people, and for the benefit of all the people in common. Sec. 11 places the title and ownership in the state as a proprietor, and the individual may no longer acquire ownership by capturing, killing or reclaiming such animals, except insofar as permitted so to do> by other provisions of the act. ’ ’
In Geer v. Conn., 161 U. S. 519, perhaps the leading gam© case in this country, it is said:
“Prom the earliest traditions the right to reduce animals ferae naturae to possession, has been subject to the control of the law making power. * * In most of the states laws have been passed for the protection and preservation of game. We have been referred to no case where the power to so legislate has been so questioned, although the books contain cases involving controversies as to the meaning of some of the statutes , * # * ”
In Magner v. The People, 97 Ill. 320, the court said:
‘ ‘ The ownership being in the people of the state, the repository of the sovereign authority, and no individual having any property rights to be affected, it necessarily results that the legislature, as the representative of the people of the state, may withhold or grant to individuals the right to hunt and kill game, 'or qualify or restrict, as, in the opinions of its members, will best subserve the public welfare.”
These authorities are approved in Hornbeke v. White (Colo. App.) 76 Pac. 926. The statutes of Colorado read in the light of these decisions vest the ownership of game in the state as a proprietor, and take away the “right to capture and kill unless prohibited” as it existed at common law, leaving under these statutes no right to capture and kill, ex*155cept as permitted. In the language of counsel, “In other words the game without such statute was like the water of the streams, ordinarily open to the first appropriator, except as prohibited by law, while under these statutes, like the land and timber of the state, it can be pursued, appropriated to use or held in possession only as permitted by law. ’ ’
Section 2, division b, Laws 1899, p. 191, so far as pertinent is :
“No person shall shoot from a public highway at game, or fish, or hunt game in any enclosure not public land, without the consent of the owner or persons in charge of the same.”
This section, prohibiting fishing within the enclosure of another without his consent, was in force at the time of the alleged trespasses of defendant, unless repealed by said sub-division 7 of section 7, Laws 1903, p. 233. This latter section reads:
-“That the public shall have the right to fish in any stream in this'state stocked at public expense, subject to actions in trespass for any damages done property along the bank of any such streams.”
If this section be unconstitutional, as the main opinion holds it'to be, and as I think it to be, then said section 2 of division b of the Game Law of 1899, is in existence. Said sub-división 7 of section 7, Laws 1903, purports to give the public a right of way over the land of another “subject to actions in trespass for any damege done property along the bank of any such stream. ’ ’ The right of way so attempted to be given is not confined to the bed of the stream. It purports to give the public such ways over the lands of an owner as may be convenient or necessary to exercising the right of fishery. This section attempts to make lawful a trespass upon the lands of another by providing that if any damage is done a recovery therefor may be had. It was an attempt to *156take private property for private use without just compensation. I think it clearly violates section 13 of article 2 of our constitution in prohibiting the taking of private property for public or privte use without just compensation. — New England Club v. Mather, (Vermont) 35 Atlantic 323; Rockefeller v. Lamora, 83 New York Supplement 289.
We conclude, .therefore, that said section 2 of division b, Laws 1899, was in force prohibiting fishing within any enclosure without the consent- of the owner.
To sum up, it was competent for the legislature to say that defendant should not fish within the enclosure of plaintiff without his consent. The legislature has so said. Defendant was fishing within the enclosure of plaintiff without his consent, therefore, was there in violation of the law. The defendant was unlawfully on the premises of the plaintiff, and as the lower court held otherwise its judgment should be reversed.--'