The plaintiff claims the exclusive right of hunting within the territory covered by his patent from the state. He founds this right upon his proprietary interests in the soil under the water. He does not deny, so long as the premises remain in their present condition, that the public have a right of navigation over his land, but he claims such right is a mere easement, and extends simply to a right of passage over his lands in such vessels as are capable of navigating the water over the same. He insists upon the exclusive right to hunt, and to capture all wild game while on his own premises, and that his right of capture is as much a right of property as the right to make any other use of his own premises. He cites, in support of these propositions, the following authorities: Moore v. Sanborne, 2 Mich. 519; Booming Co. v. Speedily, 31 Id. 336, 342; Lorman v. Benson, 8 Id. 18; Rice v. Ruddiman, 10 Id. 125; Booming Co. v. Jarvis, 30 Id. 319; Attorney General v. Booming Co., 34 Id. 474; Ewing v. Colquhoun, 2 App. Cas. 839; Walker v. Board, etc., 16 Ohio, 544; Braxon v. Bressler, 64 111. 488; June v. Purcell, 36 Ohio St. 396; Ross v. Faust, 54 Ind. 471; Berry v. Snyder, 3 Bush, 266, 285; Overman v. May, 35 Iowa, 89; Ice Co. v. Shortall, 101 111. 46; McFarlin v. Essex Co., 10 Cush. 309; Adams v. Pease, 2 Conn. 484; Cooley, Torts, 329; Waters v. Lilley, 4 Pick. 145, Goff v. Kilts, 15 Wend. 550; Blades v. Higgs, 12 C. B. (N. S.) 501, 13 Id. 866; Ferguson v. Miller, 1 Cow. 243; Gillett v. Mason, 7 Johns. 16; Gould, Waters, §§
93a, 158, 159.
The defendant's counsel contend that, the bay being navigable.
and free to the public for passage, the defendant, as one of the public, had a right to go upon the waters, and shoot as he did; that the entry upon the bay in his boat was no trespass; that, having the right, as one of the public, to pass over these waters, and to be where he was, he had the right to fish in them, to shoot from his boat wild ducks flying over them from the open lake, and to anchor his decoys to attract such ducks; that the ownership of the soil is a qualified ownership, subject to the public and common right of passage, fishing, and shooting wild birds. In support of this, he cites the following authorities: Pearce v. Scotcher, 9 Q. B. Div. 162; Weston v. Sampson, 8 Cush. 347; Martin v. Waddell, 16 Pet. 367; Smith v. State, 18 How, 74; Collins v. Benbury, 3 Ired. 277; Browne v. Kennedy, 5 Har. & J. 195; State v. Falls Co., 49 N. H. 240; Carson v. Blager, 2 Bin. 475; Sloan v. Biemiller, 34 Ohio St. 492.
We have not been cited to any adjudicated case where this question has arisen. Both parties have presented it on the analogies of the right to fish in public navigable waters; and counsel for both parties insist that, if the case is to be governed by the rights of fishing, it should be decided for their clients. Both appeal to the doctrine of the common law, and find their vindication in its precepts. One asks for the application of the doctrine of the right of fishing in navigable waters where the tide ebbs and flows; and the other is best suited with the common law as applied to non-tidal or fresh water streams.
While the questions of fishing and hunting are in principle somewhat analogous, yet they have always in England been treated as separate subjects of legislation and regulation. The forest and game laws of England have always been treated under a separate code, distinguished for its tyrannical inhibition of the common rights of the subject, and detestable for the cruel punishments inflicted for trivial offenses. 2 Bl. Com. 411 et seq.; Com. Dig., tit. "Justices of the Peace," B. 43, 45-49. The common law, which recognized the right of hunting and of property in wild animals to be a royal prerogative, and to vest in the king, has no existence in this country, where no king and no royal prerogative exist. Here the sovereign power is in the people, and the principle, founded upon reason and justice, obtains, that by the law of nature every man, of whatever rank or station, has an equal right of taking, for his own use, all creatures fit for food that are wild by nature, so long as he does no injury to another's rights. Laws have been passed to protect game during certain seasons, with a view to their preservation, but none denying the right of any person to capture or kill game in the allotted season. This right is restricted only as to place.
Since every person has the right of exclusive dominion as to the lawful use of the soil owned by him, no man can hunt or sport upon another's land but by consent of the owner. It will be conceded that the owner of lands in this state has the exclusive right of hunting and sporting upon his own soil, whatever may be the view entertained when the land belongs to the United States or to the state, there can be no question when the land passes to the hands of private owners.
The defendant claims that he had the right to shoot the wild fowl from his boat, because, as the waters were navigable where he was, he had the right to be there; that there being no property in wild fowl until captured, if he committed no trespass in being where he was, no action will lie against him for being there and shooting the wild duck. There is a plausibility in the position, which, considered in the abstract, is quite forcible, and, if applied to waters where there is no private ownership of the soil thereunder, would be unanswerable. But, so far as the plaintiff is concerned, defendant had no right to be where he was except for the purpose of pursuing the implied license held out to the public of navigating the waters over his land. So long as the license continued, he could navigate the water with his vessel, and do all things incident to such navigation. He could seek the shelter of the bay in a storm, and cast his anchor therein; but he had no right to construct a " hide," nor to anchor his decoys for the purpose of attracting ducks within reach of his shotgun. Such acts are not incident to navigation, and in doing them defendant was not exercising the implied license to navigate the waters of the bay, but they were an abuse of such license. * * * [Several eases are here reviewed and are then summed up as follows :]