Dissenting:
The controlling opinion herein begins with the statement: “The question is whether a nonresident of Mississippi, who pays the owner for the privilege, may fish *788in a privately owned, land-locked lake in this state without first obtaining the fishing license required of nonresidents by Mississippi Code 1942, Bee., section 5904. Miss. Laws 1956, ch. 151.” (Italics mine). "Whereas the brief of the appellant contains the following statement: “The affidavit charging the offense in this case merely charged appellee with fishing without a license but, in view of the stipulation filed herein, it is assumed that the same legal question is involved whether appellee had been a resident or nonresident even though under the authorities a State may put more restrictions and prohibitions on non-residents. * * *.”
On February 28, 1939, the then attorney-general, through his assistant J. A. Lauderdale, advised the Game and Fish Commission that its regulations could not interfere with the fishing privilege of the owners of private ponds having no communication through which fish are accustomed to pass to other waters. Mr. Lauderdale quoted this rule from 26 C. J. page 623. There is also an annotation in 15 A. L. B. 2d 754, showing that state fishing license laws or other public regulations have no application to fishing in a private lake or pond. In fact, it was conceded at the bar that numerically the decisions are in favor of fishing in artificial lakes and ponds without a fishing license. Only the states of Kentucky, South Carolina, Georgia, and Missouri hold to the contrary. The brief of the appellant contains the following language: “Bed Gap Lake is, according to the stipulation herein, entirely land-locked and is not connected with any natural stream or waterway and is filled only by (the water from) the watershed from the surrounding land of Harsh (the landowner).”
This Court has never passed on the precise question here involved, hut in the case of Ex Parte Louis Fritz, 86 Miss. 210, 38 So. 722, it was said that fish “are incapable, until actually taken, of absolute ownership, except in artificial lakes or in small ponds that are entirely *789land-locked.” (Italics mine). In the case of State Game & Fish Comm. v. Lonis Fritz Co., 187 Miss. 539, 193 So. 9, decided in 1940, there were four separate opinions written by members of this Court. One, a per cnriam opinion, and then separate opinions by Chief Justice Sydney Smith, Justice George H. Ethridge and Justice Y. A. Griffith. The writer hereof joined Justice Griffith in his separate opinion, and Justices McGowan and Anderson joined us in part and joined Chief Justice Smith in part. In all of these opinions the Court again repeated the language as it is above quoted from the opinion in the first Fritz case. In other words, all of the members of the Court recognized that fish were capable of absolute ownership in artificial lakes or in small ponds that are entirely land-locked. If the landowner has absolute ownership of the fish that he bought and paid for and placed in an artificial lake constructed by him, then it would seem that he would have the right to permit his friends to fish in his lake or pond without paying a $6 license fee. In other words, the regulations made by the State Game and Fish Commission would have no application to artificial lakes and ponds that are entirely land-locked. The State on this appeal repeatedly recognizes in its brief that Red Gap Lake is entirely land-locked. That is to say, there is no natural outlet from this lake into other waters and that there is no inlet from other waters into Red Gap Lake.
Since, in 1951 Mr. Harsh went out onto his land between two hills, constructed a dam across the lower end of a low place thereon where there was then no water so as to impound the water falling on his other land into a land-locked lake and bought and paid for the fish placed therein, he would have the right to remove the dam at any time he saw fit, and to thereby destroy the lake or to permit his friends to fish therein without being subject to the regulations of the State Game and *790Fish Commission, which, in my opinion, has no jurisdiction over an artificial and entirely land-locked lake.
Section 5906, Code of 1942, authorizes the State Game and Fish Commission to regulate fishing in the “fresh waters of Mississippi”. In my opinion Red Gap Lake is not a part of the waters of Mississippi. They are the waters of Mr. Harsh, the landowner who constructed the lake. I do not think that it was ever the intention of the state legislature for the rules and regulations of the State Game & Fish Commission to apply to artificial lakes and to land-locked ponds, privately owned.
In the case of Draffen v. Black, 202 Ky. 775, 196 SW 2d 362, the Kentucky court was dealing with a statute which expressly imposed a license fee upon one fishing, whether in “public or private” waters. Our statute does not expressly require a license fee for fishing in private waters, and I think that in view of what was said in the cases of Ex Parte Fritz, supra, and State Game & Fish Comm. v. Louis Fritz Co., supra, the Legislature did not intend that a license should he required where a landowner invites Ms friends to fish with Mm in his own private lake.
Whenever our statutes speak of regulating the taMng of fish they expressly refer to “its waters”, “waters of Mississippi”, and “fresh waters o'f Mississippi”. I do not think that they have reference to privately owned lakes that are land-locked, and I therefore respectfully dissent.
McElroy, J., joins in this dissent.