(concurring).
[¶ 27] I fully concur with the analysis and result of the majority opinion. I write separately only to present additional analysis which I believe also supports the majority conclusion. It is clear that South Dakota has a tradition of allowing hunting except where the Legislature has chosen to restrict or prohibit it.
[¶ 28] Historically, there is no support for the contention of the Plaintiffs that the Territorial Legislature in 1870, when accepting the rights-of-way easement from the Federal Government by enacting what is now SDCL 31-18-1, somehow intended to limit or preclude hunting from these ribbons of real estate. During the Territorial period, no limitations can be found on hunting anywhere although I presume that a landowner could maintain an action for trespass for entering on his land without his permission. See Clark v. Bates, 1 Dakota 42, 46 N.W. 510 (1874), aff'd, 95 U.S. 204, 24 L.Ed. 471 (1877). However, acts committed within the section line were not held to be a trespass upon the adjoining landowner’s real property. State v. Bonine, 41 S.D. 231, 170 N.W. 138 (1918). As to wild game specifically, it was not until 1899 that the South Dakota Legislature passed its first limitation on hunting anywhere in the State, by requiring the owners’ permission to hunt on private land. See SDCL 41-9-1.
[¶ 29] At common law, wild game was deemed to be the property of the sovereign or state and not of the private real property owner. State v. Pollock, 42 S.D. 360, 365, 175 N.W. 557, 558 (1919). Therein we stated:
This power of the state is based largely on the circumstance that the property right to the wild game within its borders is vested in the people of the state in their sovereign capacity; and as an exercise of its police powers and to protect its property for the benefit of its citizens, it is not only the right, but it is the duty of the state to take such steps as shall preserve the game from the greed of hunters.... The right to kill the game is a boon or privilege granted either expressly or impliedly by the sovereign authority and is not a right inhering in any individual....
42 S.D. at 365-66, 175 N.W. at 559 (quoting 12 RCL 685). This common law doctrine was reinforced in 1899 by the passage of what is now SDCL 41-1-2, which provides in part, that “any game bird, game animal, or game fish ... shall always and under all circumstances be and remain the property of the state.... ”
[¶ 30] Eighty-two years were to go by until the Legislature sought to limit hunting within certain rights-of-way simply because of that realty’s status by the amendment of SDCL 41-9-1.1 to that effect. State v. Peters, 334 N.W.2d 217, 221 (S.D.1983). Prior to that time, the only applicable statutory hunting restrictions in existence were those generally pertaining to hunting such as bag limits or for the protections of farm buildings, fields and schools. See SDC 1939, § 25.0427.
[¶ 31] Thus, the claim that somehow in the 1870’s or at anytime thereafter, the Dakota Territorial Legislature or the South Dakota Legislature intended to preclude all public hunting within public rights-of-way is without any supporting authority — all authority points to the contrary. Some might have *85wished that those Legislatures had spoken differently, but we cannot remake history. DeCoteau v. District County Court, 420 U.S. 425, 449, 95 S.Ct. 1082, 1095, 43 L.Ed.2d 300, 317 (1975).