ON REHEARING
George Rose Smith, J.,on rehearing. In its petition for rehearing the appellee construes our opinion to mean that every landowner has the right to hunt upon his own property the year around and that the Commission can curtail that right only by condemning the fee simple title to the land. It was not our intention to lay down such a rule, nor do we think our opinion susceptible of that construction.
It must be remembered that Act 95 of 1927 contemplates voluntary action on the part of the landowners. Under that Act the owners of not less than 640 acres may request the Commission to declare their lands a game refuge. Quite evidently the landowners could establish a refuge without the Commission’s assistance were it not for the settled American rule that it is not a trespass for anyone to hunt upon unenclosed wild lands. Bizzell v. Booker, 16 Ark. 308. One of the effects of Act 95 is to permit landowners desiring a game preserve to avoid the effect of this common law principle by asking the Commission to declare hunting upon their lands to be unlawful.
In 1930 a 30,000-acre refuge was established by-voluntary action under Act 95. The Commission approved this sanctuary with the knowledge that its leases would expire in ten years, and in 1940 the leases were renewed upon that same understanding. In 1950, however, the appellants refused to continue the refuge for another ten years, and the Commission adopted its Special Regulation, which had the effect of subjecting the appellants’ property to the same restrictions that would have been imposed had they leased their lands to the Commission for another ten years.
We adhere to the view expressed in our original opinion, that such action on the part of the Commission is in effect the condemnation of the appellants’ hunting-privileges, for which compensation must be made. Of course, the State has the power to regulate the taking of game, but in doing so it cannot arbitrarily discriminate among its landowners. Lewis v. State, 110 Ark. 204, 161 S. W. 154. For example, a nonresident owner of land in Arkansas cannot be prohibited, by reason of his non-residence, from hunting upon his own land if a resident landowner would have that privilege in the same circumstances. State v. Mallory, 73 Ark. 236, 83 S. W. 955, 67 L. R. A. 773. Here, the Commission’s attempt to compel the appellants to submit to restrictions that are to be voluntarily assumed under the statute is prima facie an arbitrary action, so that the Commission has the burden of demonstrating- the validity of its conduct.
The Commission presents a twofold argument in its effort to uphold its Special Eegulation. First, it is said that the appellants’ refusal to lease their lands created an emergency, which may be met by special regulations as provided by the sixth paragraph of § 8 of Amendment 35. But the trouble is that this particular regulation is not an emergency measure; by its terms it will continue in force as long as the surrounding area constitutes a game refuge. A different question might be presented had the Commission temporarily prohibited hunting pending the institution of an action for the condemnation of the hunting rights of the appellants.
Second, it is said that the entire 30,000-acre sanctuary constitutes a zone, so that the Commission may issue hunting regulations under the above paragraph of the amendment. But, as we pointed out in the first opinion, this Special Eegulation does not purport to be a zoning- plan. It applies only to lands surrounded by an existing refuge and might therefore affect tracts of only a few acres.
Nevertheless the Commission argues that the Special Regulation, when considered together with the voluntary leases by other landowners, has the practical effect of establishing a 30,000-acre zone. Had the Commission undertaken to adopt a uniform regulation applying alike to all lands within the area no doubt there would be a presumption in favor of the validity of its action, casting upon the aggrieved landowner the burden of showing that no zone is involved. But the Commission has not so acted, and we think it has the burden of proving its contention. The amendment itself does not define the word zone. To say the least, a zone must be of sufficient size to bear a reasonable relationship to the purpose for which the zone is declared to exist. If, for example, the zoning regulation is intended to further the propagation of deer, the constitution clearly means that the restricted area must be large enough for the accomplishment of that purpose. In the trial court the Commission offered no proof on this particular point; so we have no evidence on which to sustain the argument now advanced.
Rehearing denied.