We accept this as the better rule, and especially as one better adapted to secure the rights of the true owner.
In view of the facts of this case, the plaintiff acquired no original right to the property, and the defendant's subsequent acts in receiving and holding the property in the manner he did does not create any.
VIII. Property in fish and game ratione soli.
Breese, J., in
43 Illinois. 447. - 1867.
By the common law, a right to take fish belongs so essentially to the right of soil in streams or bodies of water, where the tide does not ebb and flow, that if the riparian proprietor owns upon both sides of such stream, no one but himself may come upon the limits of his land and take fish there; and the same rule applies so far as his land extends, to wit, to the thread of the stream, where he owns upon one side only. Within these limits, by the common law, his right of fishery is sole and exclusive, unless restricted by some local law or well-established usage of the state where the premises may be situated. Washburn on the Law of Easements and Servitudes, 411, referring to Hargraves' Law Tracts, 5; Woolrych on Waters, 87; Chalder v. Dickinson, 1 Conn. 382; Waters v. Lilley, 4 Pick. 199; Hooker v. Cummins, 20 Johns. 90; McFarlin v. Essex Co., 10 Cush.
This right to take fish within the limits of one's land bounding upon and including a stream not navigable, is so far a subject of distinct property or ownership, that it may be granted, and will pass by a general grant of the land itself, unless expressly reserved; or it may be granted as a separate and distinct property from the freehold of the land, or the land may be granted, while the grantor reserves the fishery to himself.
In this case the record shows, that the plaintiffs below showed either a legal or equitable title to the lands on which the lake was situate, and actual possession and cultivation of the adjacent lands described in the title papers they exhibited.
It appears the lake is a small sheet of water about seven miles from the Kankakee river, and has an outlet to that river. It abounds in fish of a choice kind. The defendants went on it with small boats they had brought with them, equipped with a seine, which they dragged in the lake, against the will and protest of the owners of the land.
This entering upon the land and fishery, which was exclusive in the plaintiffs, was a trespass upon their premises, for which the action of trespass lay, independently of the question of ownership in the fish. The plaintiffs had, therefore, a clear right to recover for the trespass. * * *
69 Michigan, 488. - 1888.
Champlin, J. - This is an action for trespass upon land covered with water, situated on fractional section 11 north of private claim, township 7 south, range 9 east.
The declaration alleges that defendant broke and entered plaintiff's close, and with his boat, oars, and paddle, in rowing and punting, broke down and destroyed the wild rice and grass there growing, and with his gun shot at, wounded, and killed and frightened away the wild ducks and other game there resting and feeding, and other injuries, etc.
The defendant pleaded the general issue, and gave notice that he would show that the premises upon which the injuries were supposed to have been committed were a common highway, and free to defendant, and by virtue thereof, and in use thereof, he did all and singular the acts complained of, as he lawfully might. * * *
There was a large amount of testimony introduced to show that this bay, as well as Sandy creek, was navigable water, and in the disposition made of the case in the court below the fact was conceded that it was navigable, and used as such, and I shall consider that fact as established.
It is also a conceded fact that defendant was in a boat in the navigable waters of the bay, and by the aid of some rushes that grew up through the water, and a structure called "a hide," and several artificial ducks as decoys, was engaged in shooting wild ducks upon the premises covered by plaintiff's patent; that he was requested to desist, and leave the premises, by plaintiff, through his agent, but refused so to do, claiming the right to be where he was, and to shoot ducks and game, because he was in the navigable waters of Lake Erie.
A point is made by counsel for defendant that, at the time the state issued its patent for this land in 1883, the shore had washed away, and the bay existed as a part of the waters of Lake Erie, and the mere grant of the land could convey no greater rights, as to fishing and shooting, to the grantee than the grantor had.
It seems to me that plaintiff is unaffected by the changed condi tion of the shore. In my opinion, the grant was effective to pass the title to the submerged land. The patent from the state passed such title as it had; and if, prior to its date, a portion of the land had become submerged by the slow and imperceptible encroachments of the waters of the lake, the state, unlike a private person, still would be the owner, and could grant the bed of the lake to whom it chose, so long as such grant did not interfere with private vested rights. Smith v. Levinus, 8 N. Y. 472. * * *
It may be remarked, however, that Congress had not the remotest intention of granting these lands for game preserves, to be bought up and controlled by individuals or clubs. While I have no doubt that plaintiff may, for the purpose of reclaiming this land, construct levees or embankment, and thus shut out the waters of Lake Erie, and the public as well, yet, while he permits it to remain as a part of the navigable water of Lake Erie, there is an implied license to the public, under which the public have the right to navigate the same, and to exercise all such rights as are incident to navigation, and it is also subject to such rights as the public have in the navigable waters of the state.