River Falls journal. [volume] (River Falls, Pierce County, Wis.) 1872-2019, 1896-06-11

where fish caught or game killed even by a
| trespasser belongs when caught or killed TO the
owner Of the hand where II happened 10 be. The
counsel has cited one case where il was so held
| In England, but different rule prevails here
The game laws of England were never adopted
by any state of the MON as part OF the COM
mon law.
Ifa person goes to a place where he has no
right to go, of course he Is liable trespasser,
but the measure OF the damages is not the value
of the fish caught, but whatever injury he does
to the land or the possession OF the land owner.
Are the plaintiffs entitled TO damages for the
defendants entering upon the land in question:
II Is not claimed that any actual damages
were done, but if the entry was Wrongful as
against these plaintifs, OF course they are en-
titled 10 nominal damages, but in the view /
take of this case must hold that the plaintiffs
caunot recover at all
The stream in question has during the last ten
years been stocked with trout spawn furnished
BY the state of Wisconsin. Some OF this spawn
has been placed in this river upon the very land
upon which, II is alleged. this trespass took
place Ii has been placed there by the plaintiff
Burkhardts consent and in some Instances at
least with his active assistance.
This spawn furnished by the state was paid
for by the taxes Of the whole people, collected
from rich and poor alike, and The expenditure
OF money thus raised can only be justified upon
a theory that it is public use TO which it is ap
portioned. II would be utterly indefensible
FOR the state to exercise its taxing power to en-
rich the person who happened to own the land
upon which a stream OF water Is running or to
enhance the pleasure Of Il club of gentlemen
who are fortunate enough TO be able TO acquire
riparian rights along the banks Of the stream for
the purpose of excluding he general public
from any participation in the benefits to be de
rived from such expenditure and | cannot
think that the state Of Wisconsin has levied
taxes 10 be expended Tor any such purpose.
think the use of the river for prOpagating trout
was a public use and should be so regarded aud
/ think that when Mr.. Burkhardt consented
that it should be used FOR such public, he
should be held to have dedicated what fishing
right he had along the shores Of the river and on
the adjacent lands, TO the public.
Such use of the river by the state is is public
as the use of the highway, and we know that if
a man permit the authorities OF town TO lay
out highway over his land and TO expend
money in working II. without objeeting on his
part, he is held 10 have assented 10 such taking
and is treated as one dedicating his right to the
land TO the public for use as q highway. | don't
see why the same principle should not apply in
However this may be, there seems to be an
other reason conclusive TO my mind why plain
tiiis should not recover that is. that none of the
plaintiffs had any possession 10 the land in
question. Mr. Burkhardt swears that during
the life OF Mr.. Burke he made bargain with
him that he should use it in consideration of
Keeping up the fences; not that he could turn
his cattle in, in common with Burkhsrdt him.
SELF but that he could use the land that is, have
the use of II. aud the use of it means the exclu-
siye use. This was evidently the understanding
of tho parties for subsequently Burke adopted
the plan of charging visitors 20 the Falls who
had to pass over that land, for his own benefit,
thus assuming to say who should and who
should not 90 upon it, and arranging terms upon
which parties could do so, and this though
known 10 Burkhardt did not call out any pro-
test, but appears to have been assented TO by
him. IL further appears that for twenty years
the plaintiff Burkhardt has made no use of the
land whatever. In view Of tnese facts that the
possession should be held to be in Mrs. Burke,
and not in any of The Plaintiffs.
1t is true that Mrs. Burkes interest is subject
to be terminated at any time, she is a mere ten
ant at will but until il is terminated should
think she should be held to have the sole pos
session, and this action being to recover for
invasion OF possession simply, without any
alleged injury TO the soil, she has the sole right
of action.