Commonwealth v. Agway, Inc.
1967 Pa. Super. LEXIS 978, 210 Pa.Super. 150, 232 A.2d 69 (1967)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A state's interest in wild animals (ferae naturae) is that of a sovereign with the power to regulate for the common good, not that of a proprietor with ownership rights, and therefore the state cannot maintain a civil action for monetary damages for the negligent destruction of such animals.
Facts:
- A company discharged certain chemicals into the South Branch of French Creek and French Creek near Union City.
- The discharge of these chemicals caused the death of approximately 12,000 fish and 60,000 minnows.
- The fish and minnows killed were ferae naturae, meaning they were wild and in a state of freedom in the inland waters of the Commonwealth.
- The Commonwealth had not reduced these specific fish to its possession.
Procedural Posture:
- The Commonwealth of Pennsylvania filed a suit in trespass in a Pennsylvania trial court to recover monetary damages for the value of fish killed by pollution.
- The trial court dismissed the Commonwealth's complaint.
- The Commonwealth of Pennsylvania, as appellant, appealed the dismissal to the Superior Court of Pennsylvania.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the Commonwealth of Pennsylvania have a proprietary interest in wild fish (ferae naturae) sufficient to support a civil action in trespass for monetary damages against a party that negligently kills them?
Opinions:
Majority - Jacobs, J.
No. The Commonwealth of Pennsylvania does not have a proprietary interest in wild fish sufficient to support a civil action for damages. The state's interest in wild game and fish is that of a sovereign, not an owner. This sovereign power (imperium) allows the state to regulate and control wildlife for the common good, such as determining when and how fish may be captured. It is distinct from proprietary ownership (dominium), which would support a civil action for damages. Citing Toomer v. Witsell, the court noted that the state ownership theory is a 'fiction' and 'legal shorthand' for the state's power to preserve a resource. Because the fish were ferae naturae and not reduced to possession, the Commonwealth does not own them in the same way it owns its lands and buildings, and thus cannot sue in trespass for their destruction.
Concurring - Wright, J.
No. While not agreeing with the majority's conclusion that the Commonwealth lacks a sufficient property interest to sue, the action must be dismissed on other grounds. A sufficient property interest could arguably exist, especially since the state stocks streams with fish from its hatcheries. However, The Fish Law of 1959 explicitly states its intent 'to prescribe an exclusive system for . . . their propagation, management and protection.' This legislative declaration of an exclusive remedy means the only recourse for the Commonwealth is the penalties prescribed within that statute, precluding a separate civil action for damages.
Analysis:
This decision clarifies the nature of a state's interest in its wildlife, firmly distinguishing between the sovereign power to regulate (imperium) and proprietary ownership (dominium). It limits a state's ability to seek civil monetary damages for environmental harm to wildlife under common law tort theories, forcing the state to rely on statutory penalties specifically enacted by the legislature. This holding reinforces the traditional common law principle that ownership of wild animals is established only upon capture, preventing the state from treating free-roaming wildlife as its own personal property in tort actions.
