Herrin v. Sutherland

Supreme Court of Montana · 1925 · Torts

241 P. 328 (1925)

Updated July 19, 2026

TortsTrespassPropertyHunting and fishing rightsnavigable watersnonnavigable streamsriparian rightspublic fishing

Facts

Plaintiff owned and possessed several ranch properties, including land abutting both sides of the Missouri River, a navigable stream, land containing Fall Creek, an unnavigable stream, enclosed and posted ranch land, and land surrounding a pond and small streams. Defendant, while on hunting and fishing trips, rowed and fished in the Missouri River channel, moored on plaintiff's bank above low-water mark, walked on plaintiff's banks, waded and fished in Fall Creek, fired a shotgun over plaintiff's land, broke fences and entered enclosed and posted ranch land to hunt, crossed plaintiff's ranch to reach public domain, fished in plaintiff's pond and streams, and entered plaintiff's land to flush and shoot ducks. Plaintiff sought only nominal damages, and the appeal challenged whether the complaint stated causes of action.

Issue

Whether the complaint stated causes of action for trespass based on defendant's hunting and fishing activities on or around plaintiff's lands and waters. More specifically, the court had to decide when use of navigable waters is public and when entry onto land, nonnavigable waters, or airspace associated with private land is an actionable trespass.

Rule

The public may use and fish in the waters above the bed of a navigable stream below low-water mark, subject to general law, because the state owns the land below that mark; a riparian owner cannot exclude such use merely because he owns land on both sides. By contrast, the owner of land bordering a nonnavigable stream owns the channel and has the exclusive right to fish there, and anyone who enters privately owned banks, enclosed or posted land, or the immediate airspace above private land without right commits at least a technical trespass. Wild animals are not privately owned generally, but while on a person's land the possessor has at least a qualified right sufficient to exclude trespassers from taking them there.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

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

Elena Ortiz owns ranchland on both sides of a navigable stretch of the Yellowstone River near Billings, Montana. Without touching either bank, Noah Bennett drifts through the river channel in a canoe below low-water mark and catches trout from the canoe.

If Elena sues Noah for trespass solely because he floated and fished in the channel between her lands, who is most likely to prevail?

Explanation. The majority held that the state owns the land below low-water mark in a navigable stream, so the waters above that bed are public waters in which the public may fish, subject to general law. A landowner bordering both sides of the stream does not thereby gain the power to exclude others from rowing or fishing in the navigable channel so long as they remain below low-water mark and do not trespass on adjacent private property.