Herrin v. Sutherland
241 P. 328 (1925)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A landowner's right to exclusively use and enjoy their property extends to hunting and fishing on that land, including in non-navigable streams, on the banks of navigable streams above the low-water mark, and in the airspace above the property, superseding any public right to hunt or fish in those areas without the owner's consent.
Facts:
- A plaintiff owned a large tract of land abutting both sides of the navigable Missouri River and also containing a small, non-navigable stream called Fall Creek.
- The defendant, on a hunting and fishing expedition, rowed a boat on the Missouri River and, in addition to fishing in the channel, moored his boat and walked on the plaintiff's land between the ordinary high and low-water marks.
- The defendant entered the non-navigable Fall Creek from the Missouri River and waded in it to fish, while also walking on its banks and cutting willows.
- While standing on adjacent property, the defendant repeatedly fired a shotgun over the plaintiff's dwelling house and cattle at waterfowl in flight.
- The defendant broke and entered the plaintiff's fenced and posted property, known as the Sentinel Rock ranch, to hunt upland game birds.
- The defendant also broke a fence and crossed the plaintiff's Sentinel Rock ranch for the purpose of reaching an adjacent area of public domain to hunt.
- The defendant angled for and caught fish in a small pond and its connecting streams which were located entirely within and surrounded by the plaintiff's land.
- The defendant entered the plaintiff's land and shot and killed wild ducks that had hatched and were being raised in ditches on the property.
Procedural Posture:
- The plaintiff filed a complaint alleging eight causes of action for trespass against the defendant in the state trial court.
- The defendant filed a general demurrer, challenging the legal sufficiency of the plaintiff's claims.
- The trial court overruled the defendant's demurrer.
- The defendant then declined to file an answer, leading to the entry of a default against him.
- The trial court rendered a judgment in favor of the plaintiff for nominal damages of $1.
- The defendant, as appellant, appealed the judgment to the state's highest court.
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 a member of the public commit a trespass by entering private property without consent to hunt or fish, which includes wading in a non-navigable stream, walking on the bank of a navigable stream, shooting over the land, or crossing the land to access public domain?
Opinions:
Majority - Opinion delivered by the court
Yes, a member of the public commits a trespass by engaging in such activities without the landowner's consent. While the public has a right to use navigable waters for fishing and hunting up to the low-water mark, this right does not extend to trespassing on the privately-owned banks. The court reasoned that each of the defendant's actions constituted a distinct trespass. First, the land between the high and low-water marks on a navigable river belongs to the riparian owner, making entry upon it a trespass. Second, the bed and banks of a non-navigable stream are private property, giving the owner the exclusive right to fish therein. Third, a landowner's property rights extend upwards into the airspace (ad coelum doctrine), and firing a shotgun over the property interferes with the owner's peaceful enjoyment and is a trespass. Fourth, entering fenced and posted private land to hunt is a clear trespass, as the right to hunt on private soil is exclusive to the owner. Finally, while wild game is owned by the state, a landowner has a qualified property interest in the game on their land, granting them the exclusive right to hunt it there, and a trespasser cannot lawfully take such game.
Analysis:
This case solidifies the paramountcy of a private landowner's right to exclude others, applying classic trespass principles to the context of hunting and fishing. It clarifies that public rights associated with navigable waterways and public ownership of wild game do not create an easement or privilege to enter upon adjacent or enclosed private lands. The decision's affirmation of the 'ad coelum' doctrine regarding airspace trespass was significant for its time and remains a foundational principle, gaining new relevance in modern disputes involving drones and other aerial technology. The ruling provides a comprehensive framework for defining the boundaries between public recreational rights and private property rights.
Unlock the full brief for Herrin v. Sutherland