generally construct, within limits of a somewhat uncertain character, wharves and piers, provided they do not obstruct navigation,841 and may also erect embankments to protect their land, and may even reclaim marsh land lying between their own land and the channel of the river or lake.342

270. Rights as to ice.

The ownership of ice is determined by the ownership of the bed under the water upon which the ice is formed. Thus, in the case of a non-tidal stream which is also not navigable, the ice usually belongs to the riparian owners,343 though, if the bed belongs to another, he owns the ice also.344 In the case of navigable non-tidal rivers, the riparian owner's right to the ice depends upon the question whether, in that jurisdiction, the rule that the riparian owner also owns the bed of the stream is in force.345 So, in the case of lakes and ponds, the ice belongs to the owner of the land under the water. 346 The owner of land is entitled to ice formed there

841 Gould, Waters, §§ 179-181; Austin v. Rutland R. Co., 45 Vt. 215; Musser v. Hershey, 42 Iowa, 356; Union Depot, St. Ry. & Trans fer Co. v. Brunswick, 31 Minn. 301, 47 Am. Rep. 789; Hanford v. St. Paul & D. R. Co., 43 Minn. 104; Bainbridge v. Sherlock, 29 Ind. 364; Cohn v. Wausau Boom Co., 47 Wis. 314; Dutton v. Strong, 1 Black (U. S.) 23.

842 Dutton v. Strong, 1 Black (U. S.) 23; Musser v. Hershey, 42 Iowa, 356; Diedrich v. Northwestern Union Ry. Co., 42 Wis. 248, 24 Am. Rep. 399.

848 State v. Pottmeyer, 33 Ind. 402, 5 Am. Rep. 224; Marsh v. Mc Nider, 88 Iowa, 390, 45 Am. St. Rep. 240; Stevens v. Kelley, 78 Me. 445, 57 Am. Rep. 813; Paine v. Woods, 108 Mass. 172; Bigelow v. Shaw, 65 Mich. 341, 8 Am. St. Rep. 902.

844 Allen v. Weber, 80 Wis. 531, 27 Am. St. Rep. 51.

845 Washington Ice Co. v. Shortall, 101 Ill. 46, Finch's Cas. 136; Wood v. Fowler, 26 Kan. 682, 40 Am. Rep. 330, Finch's Cas. 146; Reysen v. Roate, 92 Wis. 543; Bigelow v. Shaw, 65 Mich. 341, 8 Am. St. Rep. 902; Serrin v. Grefe, 67 Iowa, 196.

846 Gouverneur v. National Ice Co., 134 N. Y. 355, 30 Am. St. Rep 669; Clute v. Fisher, 65 Mich. 48.

over, even though it results from the exercise by another person of a right to cause water to flow over the land.347 When the title to the land under the water is in the state, the right to take ice inures to the benefit of the public, and the first person who appropriates the ice is entitled thereto.848 In one state it has been decided that a sale of ice formed on a certain extent of water is a sale of personalty, stress being laid in the opinion on the "ephemeral" nature of ice, and its want of utility in connection with the soil.849 In other cases it is apparently regarded as of a real, rather than a personal, nature.850

X ANIMALS AND FISH.

Animals ferae naturae do not belong to the owner of the land on which they may be, but are his, if captured or killed by him. Fish do not belong to the owner of land under the water if there is any mode of escape for them to other water. The owner of land has, however, the exclusive right of fishing thereover, except in the case of a grant of the shore by the state to an individual, in which case, as in the case of all waters covering land which belongs to the state, each member of the public has the right of fishing.

847 Brookville & M. Hydraulic Co. v. Butler, 91 Ind. 134, Finch's Cas. 141; Stevens v. Kelley, 78 Me. 445, 57 Am. Rep. 813; Paine v. Woods, 108 Mass. 160; Bigelow v. Shaw, 65 Mich. 341, 8 Am. St. Rep. 902; Dodge v. Berry, 26 Hun (N. Y.) 246. But see Mill River W. Mfg. Co. v. Smith, 34 Conn. 462.

848 Wood v. Fowler, 26 Kan. 682, 40 Am. Rep. 330, Finch's Cas. 146; People's Ice Co. v. Davenport, 149 Mass. 322, 14 Am. St. Rep. 425; Inhabitants of West Roxbury v. Stoddard, 7 Allen (Mass.) 158; Brastow v. Rockport Ice Co., 77 Me. 100; Woodman v. Pitman, 79 Me. 456, 1 Am. St. Rep. 342.

349 Higgins v. Kusterer, 41 Mich. 318, 32 Am. Rep. 160, Finch's Cas. 149.

350 Washington Ice Co. v. Shortall, 101 Ill. 46, Finch's Cas. 136; State v. Pottmeyer, 33 Ind. 402.

§ 271. Animals.

The owner of land has no right of property in animals. ferae naturae, or wild animals, merely because they are upon the land.351 He may, however, acquire a qualified ownership in them—that is, an ownership while in his possession or control-by their capture,352 and an absolute ownership by killing them.353 The right of the landowner to such animals is so far exclusive, however, that other persons cannot, while upon such land as trespassers, acquire rights in the animals by capture or killing, and the animals so captured or killed become, it seems, the property of the landowner, unless another person had previously a qualified property in them.354

§ 272. Fish.

Fish at large in a stream or other body of water are ferae naturae, and the right of property in them, so far as it can exist, is in the public, or in the state for the benefit of the public.855 They are, however, if lawfully captured or confined by an individual, or when contained in a private pond having no communication through which they can pass to other waters, the subject of a qualified ownership.356

351 Blades v. Higgs, 11 H. L. Cas. 621; Geer v. Connecticut, 161 U. S. 519.

852 4 Bl. Comm. 588; Goff v. Kilts, 15 Wend. (N. Y.) 550, Finch's Cas. 368; Pierson v. Post, 3 Caines (N. Y.) 175, 2 Am. Dec. 264; Ulery v. Jones, 81 Ill. 403.

853 Blades v. Higgs, 11 H. L. Cas. 621; Rexroth v. Coon, 15 R. I. 35, 2 Am. St. Rep. 863, Finch's Cas. 365.

854 Blades v. Higgs, 11 H. L. Cas. 621; Rexroth v. Coon, 15 R. I. 35, 2 Am. St. Rep. 863, Finch's Cas. 365; Golf v. Kilts, 15 Wend. (N. Y.) 550, Finch's Cas. 368.

855 2 Bl. Comm. 391 et seq.; Fleet v. Hegeman, 14 Wend. (N. Y.) 42, 2 Gray's Cas. 547; State v. Lewis, 134 Ind. 250; Treat v. Parsons, 84 Me. 520; State v. Blount, 85 Mo. 543; People v. Bridges, 142 Ill. 30; Peters v. State, 96 Tenn. 682.

356 Gentile v. State, 29 Ind. 409; Treat v. Parsons, 84 Me. 520; State v. Roberts, 59 N. H. 256, 47 Am. Rep. 199; Sollers v. Sollers, 77 Md. 148, 39 Am. St. Rep. 404.

358

The ownership by an individual of land under non-tidal waters, whether in the case of a navigable stream, a nonnavigable stream, or a lake or pond, involves the exclusive right to fish in such water, and to appropriate the fish when caught,357 unless this right has been granted to another person, constituting in him a right to a “profit a prendre.' This right to take fish does not, however, involve the right to interfere with the passage of fish to other waters, as by the erection of dams or weirs,359 and the right must always be exercised in subordination to the right of navigation in the public.360

The mode in which the right of fishing shall be exercised, so as not to interfere with the rights of the public in the preservation and propagation of fish, is frequently the subject of statutory regulation.361

When the land under water belongs to the state, as in the case of navigable tidal waters, the larger lakes, and, in some states, of navigable non-tidal waters, the right to take fish, including shell fish, is common to all the public;362 and the

857 2 Leake, 174; 3 Kent, Comm. 409; Holyoke Water Power Co. v. Lyman, 15 Wall. (U. S.) 500; Beckman v. Kreamer, 43 Ill. 447, 92 Am. Dec. 146, Finch's Cas. 360; Com. v. Chapin, 5 Pick. (Mass.) 199, 16 Am. Dec. 386; People v. Platt, 17 Johns. (N. Y.) 195, 8 Am. Dec. 382; Trustees of Brookhaven v. Strong, 60 N. Y. 56; Cobb v. Davenport, 32 N. J. Law, 369; Skinner v. Hettrick, 73 N. C. 53. 858 See post, § 339.

359 3 Kent, Comm. 411; Parker v. People, 111 Ill. 581; Com. v. Chapin, 5 Pick. (Mass.) 199, 16 Am. Dec. 386; State v. Roberts, 59 N. H. 256, 47 Am. Rep. 199.

860 See post, § 369.

861 See Com. v. Chapin, 5 Pick. (Mass.) 199, 16 Am. Dec. 386; Parker v. People, 111 Ill. 581; State v. Blount, 85 Mo. 543; People v. Collison, 85 Mich. 105; State v. Roberts, 59 N. H. 256, 47 Am. Rep. 199; Lawton v. Steele, 119 N. Y. 226, 16 Am. St. Rep. 813; Peters v. State, 96 Tenn. 682.

862 Bagott v. Orr, 2 Bos. & P. 472, 2 Gray's Cas. 516; Martin v. Waddell, 16 Pet. (U. S.) 367; Manchester v. Massachusetts, 139 U. S. 240; Chalker v. Dickinson, 1 Conn. 382, 6 Am. Dec. 250; Morris

right which thus originally resides in the public to take fish upon the shore is not affected by the fact that, by grant or prescription, the title to the shore has become vested in an individual.308 The state may, however, grant to an individual the exclusive right, as against the public, of fishing in a particular body of water,364 and has full power to regulate the mode in which the public shall exercise the right of fishing. 365

v. Graham, 16 Wash. 343; Lincoln v. Davis, 53 Mich. 375, 51 Am. Rep. 116; Com. v. Chapin, 5 Pick. (Mass.) 199, 16 Am. Dec. 386; Weston v. Sampson, 8 Cush. (Mass.) 347, 2 Gray's Cas. 549; Martin ▼. Waddell, 18 N. J. Law, 496; Collins v. Benbury, 27 N. C. 118, 42 Am. Dec. 155; Shrunk v. Schuylkill Navigation Co., 14 Serg. & R. (Pa.) 71; Allen v. Allen, 19 R. I. 114.

863 Gould, Waters, §§ 20, 26, 27; 3 Kent, Comm. 417; Weston v. Sampson, 8 Cush. (Mass.) 347, 2 Gray's Cas. 549; Moulton v. Libbey, 37 Me. 472, 59 Am. Dec. 59; Packard v. Ryder, 144 Mass. 440, 2 Gray's Cas. 553; Bickel v. Polk, 5 Har. (Del.) 325. But the owner of the shore has the exclusive right of catching fish by means of fixtures annexed to the soil. Matthews v. Treat, 75 Me. 594; Locke v. Motley, 2 Gray (Mass.) 265.

864 Heckman v. Swett, 107 Cal. 276; Paul v. Hazleton, 87 N. J. Law, 106; Collins v. Benbury, 25 N. C. 277, 38 Am. Dec. 722. See Sollers v. Sollers, 77 Md. 148, 39 Am. St. Rep. 404.

365 Gould, Waters, § 189; Manchester v. Massachusetts, 189 U. S. 240.

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