OFFICE OF WE ATTORNEY GENERAL OF TEXAS
AUSTIN
zFitz2s
_‘..
... ‘:.. ’
honorable ‘Luther C. Jol-mston ‘-
county Attornsy
Anderson County _~ ;’
ralastino, Texas .
._ I.
pear Dir:, ‘.
:
lake, fornsd by
.thg s:3all ~isouct of xstar in ths v:a3tswny, and th6
iron net co%binin$ to r*nder th6 v?astway no connon
pessagway for fiah to or fro% brcroarnz or feeding
Crowd 8, I1
.*
Cn tha basis or thsso facts, your qu6stions 61'6 6s
fol~ov!s :
.___ .._~. , _
I
Donorablc Luther C. ~Johnston, >a&e 2
Xay a stockholder of ths cornoration OWI-
ine thn:i lsk6 fish therein without an &tiTicial
bait lioenss?
"2. !:a!! a stockholdsr r6Sid66 (a) in a
VtiO
county other than that in vhioh the lake lies or
(b) outside the State of Texas or (c) outsida the
United states of America fish thsrein without a
non-resident li06nS5?
"3. Do guests or licenoeas of stockholders
have imnuniti66 from re&IhtiOn aqua1 to those of
stockholders?
"Ir* Do artificial lakes not subject to ovor-
flow cmstitute 'waters of this state' as suoh term
-1s u66d in Art. 4032 (a) of the Rsvised Ztatutes?*q
Section 1 of Article .?,032a, Vernon's Annotated civil
Statutes', reads:
"SW. 1. II0 parson who is a non-rasident
of Tsxas, or v&o is an alisn, shall fish in the
waters of this state without first having pro-
cured from the Gamana, Fish and Oyster Co~ission
of Texas, or 0. Deputy Gana Xarden thereof, ox
from a County.Clork in Texas, or other legally
authorizad agent, a license to fish; and no per-
son v;ho is a resident of this State shall fish
with artificial luras of any kind in the waters
of this St&a without 'first having procured from
the Gem, Fish and Oyster Commission, or a Deputy
theroof, or fron a County Clark in Texas, or other
1eBally authorized agent, a li.csnsa to fish."
Fish, because of their migratory otaracteristics,
are classified as aninols ferae naturao. ';;hile they ara St
. freedom, their ownership is in ths state for thy b6.nGfi.t of
all of its inhIbitants. 11 R. b. L. 1015. Of cour96, property
in fish t!!len confinsd is in ths ovmcir of tha land coversd by
the Hater in v:hich they are SOUPI. fish and Peathar Club vs.
Thomas (C.C.A. 1911), 138 S. K. 150. Tit16 bein;: in the sov-
ereign (prior to captivity),~it is well estcblished that it has
po-;;er end authority to snact 16~:s for th6ir conservation and
propaantions Stsrrett vs. Gibson (C.C.A. 19X,), 168 S. :?. 15;
yoon vs. :!iller (c.c.p.. 19211, 231,s. c. 573; Taylor ZishinC
Club vs. Eiiamett (C.C.A. 1935), 86 S. 7. (2d) 127, wit dis-
micced; 11 I?. C. I,. 104.1.
Rcnorabls Luthar C. Johnston, Fags 3
i.
I - the State’s poner of regulation is the incident of ovrmsrahip
i
f in the people as a vrhols in their aovsrsigh capacity, the
f i;;;;;;n for the determination is the extent of this pov;cr of
I Does it extend to private bodies of rvster having no
connection vrith public waters? Has the Stats attempted to sx-
srcies control. over such v:atsrs and the fish thersin?
In People vs. Truckss Lumber Company, 116 @I. 397,
f,8 Pac. 374, 39 L. R. A. 561, 58 Am. St. Rep. 193, it is
d stated that:
“The dominion of the Stats for the purpose
of protecting its sovereign rights in the fish
within its waters. and their nrsservation for the
;
-In Stnts vs. Roberta, 59 X. Ii. 256, 17 An. Rep.~ 199,
the Court said:
“But tills the Le&lslaturs has power to rag-
ulets and limit the time an4 Lmnner of taking fish
in fatera v;hich are public brsc&inS places or
passage v!ays for fish, it has not assumed to inter-
fere r;:ith the privileges of the ovrnors of private
ponds having no conmunication thromh r;hich fish
are accustomed to pass to other craters. such ponaa,
vthsther nstural or artificial, al’s regarded aa pri-
vate property, and the oydners msy taks fish there-
from vrhencver they choose, nlthout restraint from
any ls~islative enact,ment, since the exsrcisa of
this right in no v?ay interferes with the rights of
othera...,”
See also Corpus Juria, 624,.
Conssquantlg, it may be saon that soms doubt has
been expre’sacd as to the paver of the state to control and
regulate flabin,? in purely private v&era having no wnncc-
tion Filth any public tooters. Did the Taxae Lcgioletura
. .. honorable Luther C. Johnston, Page .!,
intend to inaLuds such waters v&thin the scope of Article &,032a
*en it m?a3 it nsoessary under csrtsin circumtancss to have
a fishing licsnss for the purpose of fishing, “in any of the
voters of’this Stats*? Go belisvs not.
‘..ih People ~4. . . Xiles,~ I-43 cal. 636, 77 Fat. 666, it,
~8 held that the phrase Wvfatsss of the state” nsont “v~atsra
homing within~ the regulating paver of the state concerning the
fish therein.” .~’ ‘I .,
., ,
In Xilton st.‘al. vs. state (sup. Ct.Ark. 1923) 221
s. pi’. 4661;;appellant WIS charged with the offense of unl&;ful
fishins under a statute which prohibited certain acts “in any
or ths waters of this Statc.V1 -Wider the facts the prohibited
sots vms done in a privately omed inland lake haviw no ccn-
naction with other waters, and tha court said:
.?Ths purpose af the statute was to protect
and praserve fish in the public waters or such
privately omed waters as ore connected with
other strems or ,bodies of vetor, and not to a
private pond or lake vlhol.ly on ths pren%ses of
an owner or comoh owmrs, which is not c0n3ectt3a
in any,wey v;ith another strom or body of’ mter.
The fomer statute of this stoto rcgulati= the
tsking of fish (iZlrby*s DiGest, Sec. 3600) con-
tained an Express provision exe.?lptix froa the
application of t!m ststute mtsrs ‘wholly on the
preaises bslosZin% to such person or persons us-
ing such dsoice or dsvices.1 This provision was
omitted fro:a the ststute now in force, but, es
before stated, m think that the tern ‘in any of
the waters of this state, * v:hen Considarcd in the
).i(zht of tho obvious desi@ of the statuto, sx-
eludes privately owned vaters hsvin& no connection
with other strea.?!s .”
In Territory of Hawaii VS. Eog Chong, 21 Savraii 39,
Am. Can. 19158, 1155, the court said:
“A pond v:hicb ban naithsr ou.tlet or inlot
thrcuGh which fish can pass is the private prcp-
arty of its omer; the pblic hns no il?tsrest
in it, ahd a ststuta prohibiting certcih nethods
of tokin?, fish does not apply to such a pond.”
yn°Fcople vs. Conrad, 125 Rich. 1, 63 N. 1;;‘. 1012
dsfendqnt Conrnd ocd othars omod a ln!.:~ ti3vinC no inlet 0;
cutlet v:ith other mters. Defendants hnd obtained :jer:aission
Fran the owner to spear Cinh in such lakes for y?lich they
.
-
i
I Boaorable Luther ~C. Johnston, ‘FaW 5
:.~
were ~rreotod under a statl)to nakins it unltwful to spear
;;;I& ia any 0.S tne fupny Iakes In this Sta.te..e The court
; 1’
that fish mi&ht pass in and out OS it, other6 than
the.owners v:ould then have an interest in the pm-
of tho fish fin the lska~. The eat cannot
1
toction
be cmotrucd to include private ponds and lakes,
in which the public have np ,intoreut.” ..
3
1 So0 al& Venn& vs. Steadman,’ 9 ii&i. Sup. 'Ct. 205,
in which the court hold th3t sa act of .the Cenndian Parllamnt
t4. should not be oocstruad to raquim 1iCGilsos EOX fishing on
privnte property, Vu~1e3s the power is Civon .in oloar and un-
i. equivooal lan~uasa. or imeointlble lnSorenoe.n’ ~.
f:
Xn Taylor I?ishi~ Club vs. fiaszsett’ cC.C, A. X935), 88
S. VI, (26) 127, crit di3nis37? GL, the COWt defined the liELit
of the state’s rsCulatoyy power in the folJ.o~ln& la~~~a&e:
< *l% recognl&o as aouod the proposition as-
as&ad by appellac that all. Sioh in lekag [pub-
110 or private) sub jact to overflow? Sron rivers -:;z,,, _~
or other streaxx:.vrithin the borders of this stota
‘are property ~oS the people of this 8tsts and that
the State-imp the .rl@t t? reCulet$ the taking
theroof’.” .: ~J , ~’::
In Jo&s vs. State (Ct. ’‘cr. Am&l), 45 s. Yl. (2&j
612, appollent \;as triad er7.d collvictsd 0-S the oSfenso OS un-
lawfully taking, catchj.Rz nr,d havira in his posoassion a bass
fish lass than eZ!~von inohes in length. Under the Sacta as they.
devclopod, the fish vrss caught in a private tank and appellant
had peralsslon OS the .onnar of tha tank to fish thcroin and keep ’
tti fish that ho~ocu$Oi thorcfro=.. The tank bed boon constructed
by bulldins a darn acroos a smll ravine md SiLlad vrith surSeoe
Wat$r only, which surfaoe mator did not COm3 f7?03 any riVei'S
or other stroczs 01 Smm my pu.blio natsl. COWse Or tha stato.
‘The court cited With approval. tha ceso of State vs. rtoborts,
59 1;. 1. 256, r;l,21. xop. 193, and the quotation fron 26 Cor-
pus Jur4n at paga 624 provJ.diag,
Bonoroble iuthsr C. Johnston, P&g 6
dare accustonscl to pass ti other waters.”
,. The court also emphasized the follow-in; portion of
Arti& 951’ OS’ the Penal Code:
:
Y&is article shall not apply to any
artificial laka, pond or pool owned by any
person, f irn, corporatfon, city or tovm,
that does not have as its source of u,ater
supply a river or creek or Is not subject to
overflow from a river or creek.”
and held that this Irovision constitutes an exception to tho
gama laws which wst be construed togethar. The court said:
wArticles 931 and 933, upon v;hich the
prosscution is founded, and Article 951, just
quoted, are all Iarts of the Cane Law and nust
be construed together. Yhon so construsd, the
exception in Article 951 ltolicised abcwe, a?-
bnrentls would ororoto to orotect the anoellant
.
On motion f’or rahearlng, the court addad:
“In addition to Article 951, Penal Code,
1925, rersrrad to in our orbinal opinion as
indicating that it hsd not buen the purpose of
the laeislature to atte.npt interforenca with the
ovmgrs’ privilsgs to take fish f’ron.privotaly
owned ponds, mo advert to artic1.e 92&-925, Fenal
Codo (1925). ‘lhc first of said articles makes
it an offenao ‘to catch or take fish in any of
the ‘salt or fresh \:‘stcrs, ink.@ or strcans in
tha state’ by polsono or any explosives, or by
the use of drugs. Tfla very next article (925)
says a party v:hO takes fish by poison or by the
use of any explosive, etc., in any ‘lake, pool
or pond’ , A.thout the consont of tho O‘,Ynarof
such lnke, pool, or pond, shall be guilty ol 3n of-
r&s;. The article concludes with these words:
‘In prosecutions hcrcundcr, the burden to prove
such Consent shall bo upon the dofondant. ’
7 .._ & ,
Eonorable Luther C. Johnston, Page 7
.“It seeas to the writer that in no clearer
than thnt fouiid in Articles 925 and 931
be exnreszd that it cae not th&&iaZ
tiva intent to olaca rast.iction on the v;lncrs*
oontrol
-- ovar fiohinq in privritely ov;nad ponds,
as distin(?uished from fresh vators, stresw, and
laksss defined In 0rticle’ 926 Fn the Penal C&ie.”
?Unclerscorin~ ours. )
l?rom the facts submitted, we, understanll ‘that the
leko in question is an artificial one entirely situated on
snd surrounded by lands owned by the corporation; that the
lake is not subject to overflo? from any public hody of wter,
river or stroom; and has no connection vAth publio waters ex-
f cept through an artificial vrcstcway across which an iron net-
ting has boon ccntinuously maintained.
On the basis of these fects, it is the opinion of
this ,dapart;?,ent, and you are respectfully advised, that tho
lake in question does not constitute a part of the %aters of
this state” OS. thot tarn is used in Article &O32a, Vernon’s
Annotated Civil Etatutso, requiring licennss for non-resident3
and residents fishing v4th artificial lure in the Waters of
this state.”
It is the further opinion of this departasnt, that
s resident or non-resident stockholder of such corporation
and his resident or non-resident, citizen or alien, guast may
fish in the !a!aters of such lake without complying with the
provislono of Article 4032a, Yornonfs Annotated Civil Statutes.
Very truly yours
Untitled Texas Attorney General Opinion
Combined Opinion