Smith v. Godart , 295 S.W. 211 ( 1927 )

^* Writ of error dismissed for want of jurisdiction October 26, 1927. It appeared without dispute in the evidence heard at the trial that there was no public road to the lakes in question, and that appellants could not get to same without traveling half a mile or farther over appellee's land. The Legislature was without power to confer upon any one a right to go upon land owned by another to catch fish in lakes thereon (Hartman v. Tresise, 36 Colo. 146, 84 P. 683, 4 L.R.A. [N. S.] 872; New England Trout Salmon Club v. Mather, 68 Vt. 338, 35 A. 323,33 L.R.A. 569; Knudson v. Hull, 46 Utah, 114, 148 P. 1070), and it will be noted that in enacting the statute set out in the statements above it did not undertake to exercise such power.

In the case first cited above the plaintiff claimed the defendant had unlawfully entered upon his land, and the latter defended on the ground that he had gone upon same for no other purpose than to fish in a natural stream of water thereon which had been stocked with fish at the public expense, and was within his rights in doing so because of a provision in the Constitution (article 16, § 5) of the state (Colorado) declaring "the water [quoting] of every natural stream not heretofore appropriated * * * to be the property of the public," and a statute (Laws 1903, p. 233) declaring "that the public shall have the right to fish in any stream in this state, stocked at public expense, subject to actions in trespass for any damage done property along the bank of any such stream." In reversing a judgment of the trial court sustaining the defendant's contention, the Supreme Court of Colorado said:

"Plaintiff owns land bordering on both banks of natural streams. As between him and the defendant, he owns the right of fishery in their waters within his outer boundaries. As between them, plaintiff also owns the beds of the streams just as much as he owns the adjacent banks or the soil anywhere within his surface lines. It necessarily follows that defendant has no right of fishery within plaintiff's inclosure. But, if he does, he certainly has no easement over any portion of plaintiff's property, either in the beds of the streams or the adjacent soil, for the purpose of reaching the streams. In the enjoyment of his private property plaintiff is protected, both by federal law and the state Constitution, against encroachment by defendant. Neither the state, nor an individual, nor a corporation to whom the right of eminent domain is delegated, can take private property for public use without just compensation; much less can the state, without any compensation at all, take the private property of one, and give it to another citizen to be enjoyed by the latter for a mere private use. A Legislature cannot make lawful a trespass by one man upon the lands of another by providing that, if any damage is thereby done, a recovery therefor may be had."

In the Mather Case an act of the Legislature of Vermont declaring the crossing of uncultivated land to take fish in public waters was not actionable, unless actual damages resulted from the trespass, was held to be unconstitutional, the Supreme Court saying:

"The Legislature could as well pass a law that any private property may be crossed against the will of the owner for the purpose of reaching a highway by land as to pass one that it may be thus crossed for the purpose of reaching public waters for the purpose of taking fish therefrom. The right of eminent domain can never be exercised for any merely private purpose, however much the public utility or convenience may be thereby subserved. Judge Isaac F. Redfield says that `the owner of one rood of land may stand in the way of any private enterprise, however much the general utility may be thereby hindered, and no human power in a free country, where the principles of Magna Charta prevail in their full force, can compel him to budge one step.' "

And see 26 C.J. 598, 599, 601; 11 R.C.L. 1032; Hume v. Packing Co.,51 Or. 237, 83 P. 391, 92 P. 1065, 96 P. 865, 31 L.R.A. (N.S.) 396, 131 Am. St. Rep. 732, and note thereto; Gratz v. McKee (C.C.A.) 270 F. 713, 23 A.L.R. 1393 and note thereto; 6 R.C.L. 472 et seq.

Of course, if a right to go upon appellee's land without his consent could not have been conferred upon appellants, they had no such rights, and the judgment is not erroneous. Therefore it is affirmed.