Herrin v. Sutherland

Supreme Court of Montana · 1925 · Torts

TortsTrespassRiparian rightsHunting and fishing rightstrespassnavigable watersnonnavigable streamslow-water mark

Facts

Plaintiff owned and possessed several ranch properties in Lewis and Clark County, including lands bordering both sides of the Missouri River, a home ranch through which an unnavigable creek called Fall Creek flowed, the enclosed Sentinel Rock ranch, and land surrounding a pond and small streams. Defendant, while on hunting and fishing trips, rowed and fished in the Missouri River, moored above low-water mark and walked on plaintiff's bank, waded and fished in Fall Creek, fired at waterfowl over plaintiff's dwelling and cattle, broke fences and entered enclosed ranch land to hunt, crossed the ranch to reach public domain, and fished in plaintiff's pond and streams. Plaintiff also alleged defendant entered plaintiff's land and shot ducks that had been feeding and nesting there. After default, the trial court awarded only nominal damages of one dollar collectively on the eight causes of action.

Issue

Whether the complaint stated valid causes of action for trespass and related interference where defendant used a navigable river, entered onto land bordering that river, fished in a nonnavigable creek and private pond, fired over plaintiff's premises, hunted on enclosed and posted land, crossed private land to reach public domain, and killed wild ducks on plaintiff's property. More specifically, the court had to determine the extent of public rights in navigable waters and the landowner's exclusive rights in private land and nonnavigable waters.

Rule

In Montana, the state owns the land below the low-water mark of navigable streams, and the waters above that bed are public waters in which the public may fish, subject to general law; however, entry above low-water mark onto adjoining private land is trespass. In nonnavigable waters whose bed is privately owned, the owner of the soil has the exclusive right to fish, and one who enters to fish there is a trespasser. A person who fires over another's land may commit at least a technical trespass by interfering with the owner's protected airspace near the ground. Hunting or fishing on enclosed or posted private land without consent is trespass, and one seeking to cross private land to reach public domain must first pursue the landowner-designation procedure described in Herrin v. Sieben and may not simply break fences and enter.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nora Kim owns ranchland on both sides of a navigable stretch of the Yellowstone River near Billings, Montana. During duck season, Eli Mercer drifts down the river in a skiff, lawfully casts for fish from the water, then ties his skiff to Nora's bank above the ordinary low-water mark and walks along the bank, crushing grass.

If Nora sues for trespass, which result is most likely?

Explanation. The majority held that the state owns the bed below the low-water mark of a navigable stream, so the waters above that bed are public waters in which the public may fish and hunt subject to general law. But a riparian owner on a navigable stream takes only to low-water mark unless the grant says otherwise. Therefore, drifting, fishing, and shooting from the navigable river are not trespasses, while stepping above low-water mark onto the private bank and damaging grass is trespass.