The rule governing the acquisition of property in game in this country differs in some respects from those in England. There, if a hunter cap tures game upon the land of another, it belongs to the landowner, while here it belongs to the captor, although he may be liable to an action for trespass, and in some States fo a criminal prosecution, for entering upon the premises of another without permission. By the common law the right of fishing in the sea and in tide-waters generally is public and common to every person; but the owners of lands on the banks of fresh-water rivers above the tide line have the exclusive right of fishing to the middle of the stream. If the same person owns lands on both sides of the river, he has the sole right of fishing in the river as far as his lands extend. So the sole right of fishing in ponds or lakes be longs to him who owns the fee of the soil beneath the water. Moreover, a person rightfully navi gating a river becomes a trespasser when he shoots at or kills wild ducks thereon, in case the bed of the river is the property of adjacent land owners.
This right of fishery, however, is not an abso lute or unqualified right of property. It is sub ject to the police power of the State. Persons may be prohibited by legislation from fishing or hunting even upon their own lands, during cer tain seasons, and their sale of game which has been killed during the open season may be regu lated. This rule rests upon the doctrine that the wild game within a State belongs to the peo ple in their collective sovereign capacity. It is the subject of private ownership only so far as the people may elect to make it so; and they may absolutely prohibit the taking of it, or traffic and commerce in it, if this is deemed necessary for the protection or preservation of the public good. Hence State laws prohibiting the citizens of other States from planting oysters within the tide-waters of the enacting State are constitu tional. So are laws regulating the catching of fish within the bays of the enacting State, or pro hibiting the catching of fish or the killing of game for, the purpose of carrying the same beyond the limits of the State. All State laws having
for their object the protection of game from un necessary slaughter, and the propagation of game, have been treated with favor by both State and Federal courts, and have received a liberal con struction. Indeed, the Supreme Court of the United States has not hesitated to declare that it is the duty of the Legislature to enact such laws as will best preserve game of every kind and secure it as a valuable food-supply for the future use of the people of the State. Even the sale of fish propagated in private ponds may law fully be restricted during the close season. Such restriction, the Supreme Court of Massachu setts has decided, does not differ in principle from forbidding persons from catching fish in streams running through their own lands. In short, the right to take game is a boon or privilege rather than a vested legal right.
Modern game laws do not stop with prohibi tions against killing game out of season. They extend to the sale of such game, and even to its possession, during the period of prohibition. They have become more stringent and minute in their restrictions. The machinery for the en forcement of this provision is far more effective than formerly, and civil suits for heavy fines are more frequently resorted to than criminal prose cutions under indictments.
The lack of uniformity of the various State laws dictating the seasons during which birds and animals shall be protected frequently defeats the very purpose for which the laws were framed, and, moreover, makes compliance with the pro visions of the Federal law difficult for both ship pers and game dealers, who have to consider the open seasons in the State in which the game was killed, and that to which it is their purpose to ship it. Still more confusion is caused by the general diversity in defining the seasons. In some States the open seasons are given, and in others the closed; while in all their statements is to be found every possible variety of inclusion and exclusion of the dates named. In some States the regular killing season is checked by the prohibition of shooting or killing on certain days of the week.