(dissenting):
The majority opinion fails to delineate a legitimate state purpose for distinguishing natural lakes and streams from manmade watercourses and, indeed, it appears that there is none.
The controversy in this case arose when plaintiff decided not to continue the lease to the State by which its predecessors in interest granted access to the public across their land during the winter months for ice fishing. Since the public no longer had any access to the lake, the Division refused to stock the water with fish. Plaintiff then undertook to stock the lake, and applied to the Division for permission to do so. But because the lake is natural, only the Division has the right to stock the waters with fish. Pursuant to the provisions of U.C.A., 1953, 23-15-10, by prohibiting a private installation, the State has reserved to itself the exclusive right to engage in the fish hatchery business.
I am unable to determine that the statute promotes any public purpose. As acknowledged by Mr. Andriano in his testimony before the court, the sole reason for the statutory enactment was to afford the public a right to fish the natural lakes of this state. Notwithstanding the worthiness of that purpose, application of the statute in the instant case does not provide the public with a fishing site that would otherwise be unavailable. The public has a right to fish these waters, but the right is not absolute. The public must first gain lawful access to the waters without trespassing upon the land in private ownership.
Plaintiff has asserted its common law right to keep its private property private, which it has every right to do. The right to private property is one of our oldest and most cherished rights, and is protected against unauthorized invasion by the State by the Fourteenth Amendment to the U.S. Constitution, and by Article I, Section 22, Constitution of Utah. But how does releasing fish into the waters by someone other than the State violate the public’s interests in the water? The majority opinion’s assertion that raising fish in the lake somehow *1140converts the public waters to private waters seems to me a nonsequitur.1
There is no issue here concerning the possibility of polluting the public waters or of the introduction of trash fish into the waters. The Division has power to regulate all private fish installations under the statute and plaintiff does not contend that it would escape regulation because of its ownership of the land surrounding the lake.
The majority opinion initially acknowledges that the waters in question are the property of the public but thereafter erroneously asserts that the State is the owner of the waters and as owner the State has the right to prevent private citizens from using the public waters for private uses. The State is not the owner of public waters; the ownership is in the public itself. As members of the public, the owners of plaintiff corporation cannot be deprived of making use of the public waters, as long as such use does not interfere with prior rights to use such water.
I am of the view that the statute fails as it does not promote any legitimate state purpose, and I would therefore reverse the district court’s judgment.
. It might be asserted that such fish would continue to be the private property of plaintiff so that the public could not take the fish from the lake even if lawful access to the waters was gained. But see U.C.A., 1953, 23-13-8, where it is provided that wildlife which escapes from a private wildlife farm becomes the property of the State. Though we do not have a similar statute with respect to fish, reason would dictate that if plaintiff voluntarily releases fish into public waters it relinquishes control over its private property and the fish may thereafter be caught and taken by any member of the public.