      OFFICE OF WE         ATTORNEY GENERAL OF TEXAS
                                    AUSTIN



zFitz2s
              _‘..
                     ... ‘:..   ’
 honorable ‘Luther C. Jol-mston              ‘-
 county Attornsy
 Anderson County          _~    ;’
 ralastino,  Texas                                                 .
         ._        I.

 pear Dir:,    ‘.


                            :




                                                  lake,   fornsd       by




       .thg s:3all ~isouct of xstar in ths v:a3tswny, and th6
        iron net co%binin$ to r*nder th6 v?astway no connon
       pessagway    for fiah to or fro% brcroarnz or feeding
       Crowd 8, I1
             .*
             Cn tha basis or thsso facts,    your qu6stions  61'6           6s
 fol~ov!s :
                                   .___    .._~.     ,   _




                                                                           I
 Donorablc    Luther C. ~Johnston, >a&e 2


                  Xay a stockholder         of ths cornoration     OWI-
       ine thn:i lsk6 fish therein         without an &tiTicial
       bait lioenss?

              "2. !:a!! a stockholdsr  r6Sid66 (a) in a
                                             VtiO
       county other than that in vhioh the lake lies or
       (b) outside the State of Texas or (c) outsida the
       United states of America fish thsrein without a
       non-resident  li06nS5?

             "3.   Do guests or licenoeas            of stockholders
       have imnuniti66 from re&IhtiOn               aqua1 to those of
       stockholders?

            "Ir* Do artificial   lakes not subject to ovor-
       flow cmstitute    'waters of this state'  as suoh term
      -1s u66d in Art. 4032 (a) of the Rsvised Ztatutes?*q
              Section   1 of Article      .?,032a, Vernon's   Annotated   civil
 Statutes',   reads:

             "SW. 1. II0 parson who is a non-rasident
       of Tsxas, or v&o is an alisn,     shall fish in the
       waters of this state without first       having pro-
       cured from the Gamana,  Fish and Oyster Co~ission
       of Texas, or 0. Deputy Gana Xarden thereof,      ox
       from a County.Clork in Texas, or other legally
       authorizad agent, a license     to fish;   and no per-
       son v;ho is a resident   of this State shall fish
       with artificial   luras of any kind in the waters
       of this St&a without 'first having procured from
       the Gem, Fish and Oyster Commission, or a Deputy
       theroof,   or fron a County Clark in Texas, or other
       1eBally authorized agent, a li.csnsa to fish."

               Fish, because of their migratory otaracteristics,
  are classified     as aninols ferae naturao.        ';;hile they ara St
. freedom, their ownership is in ths state for thy b6.nGfi.t of
  all of its inhIbitants.          11 R. b. L. 1015.      Of cour96, property
  in fish t!!len confinsd is in ths ovmcir of tha land coversd by
  the Hater in v:hich they are SOUPI. fish and Peathar Club vs.
  Thomas (C.C.A. 1911), 138 S. K. 150.           Tit16 bein;: in the sov-
  ereign (prior to captivity),~it         is well estcblished      that it has
  po-;;er end authority      to snact 16~:s for th6ir conservation      and
  propaantions      Stsrrett    vs. Gibson (C.C.A. 19X,), 168 S. :?. 15;
  yoon vs. :!iller     (c.c.p..  19211, 231,s. c. 573; Taylor ZishinC
  Club vs. Eiiamett (C.C.A. 1935), 86 S. 7. (2d) 127, wit dis-
  micced; 11 I?. C. I,. 104.1.
      Rcnorabls   Luthar C. Johnston,         Fags 3
i.
I    - the State’s   poner of regulation   is the incident   of ovrmsrahip
i
f      in the people as a vrhols in their aovsrsigh     capacity,  the
f      i;;;;;;n   for the determination  is the extent of this pov;cr of
I                  Does it extend to private bodies of rvster having no
       connection vrith public waters?     Has the Stats attempted to sx-
       srcies control. over such v:atsrs and the fish thersin?

                 In People vs. Truckss Lumber Company, 116 @I.               397,
      f,8 Pac. 374, 39 L. R. A. 561, 58 Am. St. Rep. 193, it is
d     stated that:

                  “The dominion of the Stats for the purpose
            of protecting  its sovereign rights in the fish
            within its waters. and their nrsservation  for the
;




                -In Stnts    vs.   Roberta,     59 X. Ii. 256,   17 An. Rep.~ 199,
       the Court said:

                  “But tills   the Le&lslaturs has power to rag-
            ulets and limit the time an4 Lmnner of taking fish
            in fatera v;hich are public brsc&inS places or
            passage v!ays for fish,    it has not assumed to inter-
            fere r;:ith the privileges   of the ovrnors of private
            ponds having no conmunication thromh r;hich fish
            are accustomed to pass to other craters.        such ponaa,
            vthsther nstural or artificial,     al’s regarded aa pri-
            vate property,   and the oydners msy taks fish there-
            from vrhencver they choose, nlthout restraint       from
            any ls~islative    enact,ment, since the exsrcisa     of
            this right in no v?ay interferes     with the rights of
            othera...,”
                  See also   Corpus Juria,       624,.
                  Conssquantlg,  it may be saon that soms doubt has
       been expre’sacd as to the paver of the state to control and
       regulate flabin,? in purely private v&era having no wnncc-
       tion Filth any public tooters.  Did the Taxae Lcgioletura
. ..   honorable   Luther C. Johnston,    Page .!,

       intend to inaLuds such waters v&thin the scope of Article     &,032a
       *en it m?a3 it nsoessary under csrtsin      circumtancss  to have
       a fishing licsnss    for the purpose of fishing, “in any of the
       voters of’this   Stats*?   Go belisvs not.
                  ‘..ih People ~4. . . Xiles,~ I-43 cal. 636, 77 Fat. 666, it,
       ~8    held that the phrase Wvfatsss of the state” nsont “v~atsra
       homing    within~ the regulating       paver of the state concerning  the
       fish therein.”          .~’             ‘I   .,
                  .,    ,
                      In Xilton st.‘al.    vs. state (sup. Ct.Ark. 1923)    221
       s. pi’. 4661;;appellant     WIS charged with the offense of unl&;ful
       fishins under a statute which prohibited           certain acts “in any
       or ths waters of this Statc.V1 -Wider the facts the prohibited
       sots vms done in a privately            omed inland lake haviw no ccn-
       naction with other waters, and tha court said:
                   .?Ths purpose af the statute was to protect
            and praserve fish in the public waters or such
            privately    omed waters as ore      connected with
            other strems or ,bodies of vetor, and not to a
            private pond or lake vlhol.ly on ths pren%ses of
            an owner or comoh owmrs, which is not c0n3ectt3a
            in any,wey v;ith another strom or body of’ mter.
            The fomer     statute of this stoto rcgulati=      the
            tsking of fish (iZlrby*s DiGest, Sec. 3600) con-
            tained an Express provision      exe.?lptix froa the
            application    of t!m ststute mtsrs      ‘wholly on the
            preaises bslosZin% to such person or persons us-
            ing such dsoice or dsvices.1       This provision   was
            omitted fro:a the ststute now in force, but, es
            before stated, m think that the tern ‘in any of
            the waters of this state, * v:hen Considarcd      in the
            ).i(zht of tho obvious desi@     of the statuto,   sx-
            eludes privately     owned vaters hsvin& no connection
            with other strea.?!s .”
                In Territory      of Hawaii VS. Eog Chong, 21 Savraii 39,
       Am. Can. 19158, 1155,      the court said:
                   “A pond v:hicb ban naithsr ou.tlet or inlot
             thrcuGh which fish can pass is the private prcp-
             arty of its omer;    the pblic   hns no il?tsrest
             in it, ahd a ststuta prohibiting    certcih   nethods
             of tokin?, fish does not apply to such a pond.”
                   yn°Fcople vs. Conrad, 125 Rich. 1, 63 N. 1;;‘. 1012
       dsfendqnt Conrnd ocd othars omod a ln!.:~ ti3vinC no inlet 0;
       cutlet v:ith other mters.    Defendants hnd obtained :jer:aission
       Fran the owner to spear Cinh in such lakes for y?lich they
                           .


      -
i
I         Boaorable   Luther ~C. Johnston,         ‘FaW 5
                                       :.~
          were ~rreotod under a statl)to nakins it unltwful to spear
          ;;;I& ia any 0.S tne fupny Iakes In this Sta.te..e The court
                                  ; 1’




               that   fish mi&ht pass in and out OS it, other6 than
               the.owners v:ould then have an interest     in the pm-
                          of tho fish  fin the lska~. The eat cannot
1
               toction
               be cmotrucd     to include private ponds and lakes,
               in which the public have np ,intoreut.”       ..
3
1                   So0 al& Venn& vs. Steadman,’ 9 ii&i. Sup. 'Ct. 205,
          in which the court hold th3t sa act of .the Cenndian Parllamnt
t4.       should not be oocstruad to raquim 1iCGilsos EOX fishing on
          privnte property,  Vu~1e3s the power is Civon .in oloar and un-
i.        equivooal lan~uasa. or imeointlble  lnSorenoe.n’      ~.
f:
                      Xn Taylor       I?ishi~     Club vs. fiaszsett’ cC.C, A. X935),   88
          S. VI, (26) 127,     crit    di3nis37?  GL, the COWt    defined the liELit
          of the state’s       rsCulatoyy       power in the folJ.o~ln& la~~~a&e:

<                     *l% recognl&o as aouod the proposition     as-
                as&ad by appellac that all. Sioh in lekag [pub-
                110 or private)   sub jact to overflow? Sron rivers   -:;z,,,                _~
               or other streaxx:.vrithin   the borders of this stota
               ‘are property ~oS the people   of this  8tsts and that
                the State-imp the .rl@t    t? reCulet$ the taking
                theroof’.”  .:   ~J                     , ~’::

                      In Jo&s     vs. State (Ct. ’‘cr. Am&l),       45 s. Yl. (2&j
           612, appollent \;as triad er7.d collvictsd 0-S the oSfenso OS un-
           lawfully   taking,   catchj.Rz nr,d havira in his posoassion a bass
           fish lass than eZ!~von inohes in length.        Under the Sacta as they.
           devclopod,   the fish vrss caught in a private tank and appellant
           had peralsslon     OS the .onnar of tha tank to fish thcroin and keep ’
           tti fish that ho~ocu$Oi thorcfro=..        The tank bed boon constructed
           by bulldins    a darn acroos a smll    ravine md SiLlad vrith surSeoe
           Wat$r only, which surfaoe mator did not COm3 f7?03 any riVei'S
           or other stroczs     01 Smm my pu.blio natsl. COWse Or tha stato.
          ‘The court cited With approval. tha ceso of State vs. rtoborts,
           59 1;. 1. 256, r;l,21. xop. 193, and the quotation fron 26 Cor-
           pus Jur4n at paga 624 provJ.diag,
    Bonoroble    iuthsr   C. Johnston,    P&g 6


        dare accustonscl     to pass ti other    waters.”

                ,. The court also emphasized the follow-in;   portion       of
    Arti&       951’ OS’ the Penal Code:
                      :
                    Y&is article  shall not apply to any
            artificial    laka, pond or pool owned by any
            person, f irn, corporatfon,   city or tovm,
            that does not have as its source of u,ater
            supply a river or creek or Is not subject      to
            overflow from a river or creek.”
    and held that this Irovision constitutes  an exception  to tho
    gama laws which wst be construed togethar.    The court said:

                  wArticles  931 and 933, upon v;hich the
            prosscution   is founded, and Article   951, just
            quoted, are all Iarts of the Cane Law and nust
            be construed together.     Yhon so construsd,   the
            exception in Article    951 ltolicised  abcwe, a?-
            bnrentls would ororoto to orotect the anoellant




.

                 On motion    f’or rahearlng,   the court    addad:
                  “In addition      to Article   951, Penal Code,
            1925, rersrrad to in our orbinal          opinion as
            indicating    that it hsd not buen the purpose of
            the laeislature      to atte.npt interforenca     with the
            ovmgrs’ privilsgs       to take fish f’ron.privotaly
            owned ponds, mo advert to artic1.e 92&-925, Fenal
            Codo (1925).      ‘lhc first    of said articles   makes
            it an offenao ‘to catch or take fish in any of
            the ‘salt or fresh \:‘stcrs, ink.@ or strcans in
            tha state’ by polsono or any explosives,           or by
            the use of drugs.        Tfla very next article    (925)
            says a party v:hO takes fish by poison or by the
            use of any explosive,        etc.,  in any ‘lake,   pool
            or pond’ , A.thout the consont of tho O‘,Ynarof
            such lnke, pool, or pond, shall be guilty           ol 3n of-
            r&s;.      The article     concludes with these words:
             ‘In prosecutions      hcrcundcr, the burden to prove
            such Consent shall bo upon the dofondant. ’
7   .._ &   ,




                Eonorable Luther C. Johnston,     Page 7

                          .“It  seeas to the writer that in no clearer
                                than thnt fouiid in Articles      925 and 931
                                be exnreszd    that it cae not th&&iaZ
                     tiva intent to olaca rast.iction        on the v;lncrs*
                     oontrol
                     --        ovar  fiohinq  in  privritely  ov;nad ponds,
                     as distin(?uished    from fresh vators,     stresw,    and
                     laksss     defined In 0rticle’ 926 Fn the Penal C&ie.”
                     ?Unclerscorin~ ours. )
                           l?rom the facts submitted, we, understanll ‘that the
                leko in question is an artificial       one entirely situated on
                snd surrounded by lands owned by the corporation;        that the
                lake is not subject    to overflo?   from any public hody of wter,
                river or stroom; and has no connection vAth publio waters ex-
        f       cept through an artificial     vrcstcway across which an iron net-
                ting has boon ccntinuously     maintained.
                            On the basis of these fects,     it is the opinion of
                this ,dapart;?,ent, and you are respectfully     advised,  that tho
                lake in question does not constitute       a part of the %aters      of
                this state” OS. thot tarn is used in Article       &O32a, Vernon’s
                Annotated Civil Etatutso,    requiring   licennss    for non-resident3
                and residents    fishing v4th artificial    lure in the Waters of
                this state.”
                           It is the further opinion of this departasnt,          that
                s resident or non-resident     stockholder     of such corporation
                and his resident   or non-resident,     citizen   or alien, guast may
                fish in the !a!aters of such lake without complying with the
                provislono  of Article  4032a, Yornonfs Annotated Civil Statutes.

                                                      Very   truly   yours
