State Game & Fish Commission v. Louis Fritz Co.

South Horn Lake is an inland, fresh-water, non-tidal natural lake in DeSoto county, crescent shaped, about five miles long, of the average width of about four or five hundred yards, and of varying depths, from shallow water to that which is as much as thirty feet deep. It is fed by small streams at its eastern end, and from the western end there is an outlet or pass into the Mississippi River, this pass being about twenty to forty feet wide and from four to ten feet deep. Through this pass small rowboats may navigate at all seasons of the year, and fish may migrate from the lake to the river or from the river to the lake. In this lake there are gar and other species of predatory fish, and turtles. There are also numerous species of gross and non-game fish, as well as many of the classes denominated as game fish. Appellee is the owner of more than nine-tenths of the lake's shore line and submerged lands, but there are also five other riparian owners, including the Horn Lake Outing Club. *Page 560 On July 7, 1937, the State Game and Fish Commission adopted an order, called in its minutes a regulation, by which it resolved to make contracts for the clearing of this lake, and other lakes, "so far as possible and practicable of turtle, gar and other predatory species, and non-game gross fish of certain size, for the purpose of conserving and propagating both non-game and game fish in said lakes," these contracts to provide that the contractors should be paid for their work by allowing them not to exceed 77 1/2 per cent of all non-game gross fish taken from the lakes in the progress of the work, the remainder of 22 1/2 per cent to be retained by the Commission. In pursuance of this order the Commission made a cooperative contract on October 22, 1937, with the Carrigan Company, by which the contractor agreed, "to clear said lake so far as possible and practicable of all turtle, gar, etc," and as compensation the Commission agreed to pay the contractor 77 1/2 per cent of all non-game gross fish taken from the lake in performance of the contract, all the work to be done under the direct supervision of the game warden. Under this contract the Carrigan Company entered upon the lake about November 24, 1937, and operated until about December 31, 1937, during which time there were taken and sold about 20,000 pounds of non-game gross fish, including buffalo, carp, drum and spoon-bill, the value of which, as received in the market, was $2196.50. The Carrigan Company gained access to the lake by a lease or license from the Horn Lake Outing Club, a riparian owner as aforementioned; and the equipment used was a barge, to which there was attached a long and wide apron, which by means of hinges could be let down into the water so that one end would rest upon the bottom of the lake. This barge was tied to the trees along the banks, and the other boating equipment was also from time to time moored to the banks or tied to the trees. Long seines were used, and these were pulled by *Page 561 outboard motor boats. The seines were dragged upon or close to the bottom of the lake, and would be so managed as to pull the seines, in closing them, upon the barge apron or platform, and there the haul would be separated, so that the turtle and gar taken from the seines would be destroyed, the game fish, and the smaller non-game fish would be returned to the water, but all the others would be retained and sold in the market, with the profitable result above stated. There is no evidence that there were any additional or supplementary operations. It may be added that during the operations the entire course thereof was adjacent to the uplands and over the submerged lands of appellee, it appearing that the most favorable locations were selected; and all the work was done over the protests of appellee. On December 23, 1937, the appellee exhibited its bill of complaint in the court below against Raymond Carrigan, praying that he be enjoined "from seining said (South Horn) lake, or fishing therein, removing fish therefrom, or in any way trespassing upon the waters of the complainant in the aforesaid lake and the submerged lands thereof." Carrigan answered the bill, admitting the seining of the lake, but averred that he had the right so to do under the contract of the Carrigan Company, of which firm he was a member, with the State Game and Fish Commission. A temporary injunction against Carrigan was granted, and leave was given to the Game and Fish Commission, and Si Corley, director thereof, to intervene, and become parties defendant to the bill of complaint. An answer was then filed by the State Game and Fish Commission, Si Corley, its director, and the State of Mississippi, on relation of Greek L. Rice, Attorney-General, in which Chapter 123, Laws of 1932, is invoked as authority for what was here done by the State Game and Fish Commission. The appellee, by leave of court, then amended its bill by making the Game and Fish Commission of the State of Mississippi, and W.E. McIntyre, Ben M. Stevens, Reuben R. Banks, Edgar W. *Page 562 Wright, George C. Withers, members of and composing said Game and Fish Commission, and Si Corley, Director of Conservation of said Game and Fish Commission, parties defendant thereto, and praying for an injunction against the added defendants, and for damages, actual and punitive, against the original and added defendants. On final hearing (1) the Carrigan injunctive was made perpetual; (2) a judgment for $2000, attorneys' fees, and $500 punitive damages, was rendered against the Carrigan Company; (3) the value of the fish taken by the Carrigans from the lake was adjudged to be $2,196.50, which the members of the Game and Fish Commission were directed to pay to the appellee; and (4) "the State Game and Fish Commission of Mississippi, and W.E. McIntyre, Ben M. Stevens, Reuben R. Banks, Edgar W. Wright, and George C. Withers, members of and composing the said State Game and Fish Commission, and Si Corley, Director of Conservation of the State of Mississippi, and the State of Mississippi, and they and each of them jointly and severally, their agents or employes are hereby perpetually enjoined and restrained from seining or fishing in South Horn Lake or Lake View in DeSoto County, Mississippi, in the waters thereof, over the lands of the complainant, the Louis Fritz Company, or in any way trespassing upon the waters of the complainant and the submerged lands of the complainant in said Lake." The appeal is by the State Game and Fish Commission only; consequently the decree will not be reviewed or disturbed in so far as it affects Carrigan Company. The decree of the court below in so far as it directs the State Game and Fish Commission, or its members, to pay appellee the sum of $2196.50, the value of the fish here taken from the lake, will be reversed; and the bill of complaint in so far as it seeks a recovery therefor will be dismissed. In this all of the members of the Court concur, but are not agreed on the reasons therefor. The members of the Court are equally divided as to whether the decree should also be reversed in so far as *Page 563 it awards an injunction against the State Game and Fish Commission; consequently the decree to that extent will remain in full force and effect. So ordered.