The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1904-03-06

tract of land lying in one body, and con-
tanning more than 1900 acres, in the coun-
ties of Washington and Anoka, In this
state.
waters upon this land, and also two large
bodies of water of about 600 acres in
extent, which produce and furnish large
aquac fowl None Of ac these waepa a ape
meandered, but all were actually survey
ed, sold and patented as government lands.
Over certain of these grounds and waters
many wild ducks and water fowl regu-
larry pass in their flight, and these 10
cations furnish Sportsmen with many op-
portunlties and privileges of shooting dur
ing the open season.
Plaintiff acquired these premises as a
game preserve, and for the purpose of
possessing and enjoying the advantages
OF pass shooting, and to this use these
premises are especially adapted by ma
ture; and to this end plaintiff has ex-
pended some $4,000 in the erection of
suitable buildings and accommodations.
and the only substantial value of the
premises consists in the maintenance and
enjoyment of the pass hunting privileges
thereon. During certain seasons of the
year wild duck and water fowl congre-
gate in and upon these waters and make
them their natural resting and feeding
places, and in their flight back and forth
over certain locations furnish opportuni-
ties to hunters of craftsmanship called
pass shooting, the pleasures and benefits
value, in this case admittedly greater than
$4,000.
A public wagon way or road runs
through the tract, which, though never
dedicated or condemned for such use, has
to some extent been appropriated by the
public for travel, for many years, with
out objection on part of the plaintiff, who
is the owner of the fee in the adjoining
lands.
Highway Is for Passage Only.
III
tersected by this roadway, which has
become a public highway by use, and not
by virtue. of any statutory proceedings.
Plaintiff is the absolute owner of the
passage in the public and the incidental
right to fit it for such use.
Subject to this easement; plaintiff can
enjoy and exercise all the usual rights
and remedies of the owner of freehold
As Justice Foster well says in 10 Burr
The owner Of the soil has the. right
to all above and under the ground, ex-
cept only the right to passage by the
king and his people"
This principle excludes defendant from
any use of the road at this point eX-
cept for the purpose of passage and the
rights incidental thereto.
i The admitted facts in this case clearly
show that defendant does not use this
highway principally for passage, but does
use it primarily for shooting ground.
But defendant contends, and it is I'M
questionably the law, that no person has
any right of property in wild game, even
upon his own premises, until he has re-
duced it to actual possession by killing
or taking; and defendant urges that
plaintiff cannot be damaged in respect
to the wild fowl en- these premises be-
cause plaintiff has no property interest
Ain these birds, and, further. because the
defendant being in the highway has COM
mitted no trespass on PLAINTIFFS lands.
While the principles of law stated are
undoubtedly correct, they have no APP
plieation under the facts in this case.
These premises are chiefly valuable not