
    The State of Ohio v. John Shannon.
    Under section 33, chapter 8, title 1, oí the crimes act of May 5,1877, it is unlawful to shoot at or kill wild ducks on the lands of another person, although within the channel of a navigable river, when the owner has set up, in a conspicuous place on the shore, “aboard inscribed in legible English characters, thus, ‘No shooting or hunting allowed on these premises.’ ”
    Bill of exceptions to the Court of Common Pleas of San-dusky County.
    
      Shannon was arrested on a warrant issued- by a justice of the peace of Sandusky county on complaint of George G. Tindall, charging a violation of section 33, chapter 8,„ title 1, of the crimes act of May 5,1877. This section provides: “ Whoever, having received verbal or written notice from any owner of inclosed and improved lands, or any lands the boundaries of which are defined by stakes, posts, water-courses, ditches or marked trees, his agent, or a person in charge thereof, not to hunt thereon, shoots at, kills or pursues with such intent on such lands, any of the birds or game mentioned in sections .twenty-seven, twenty-eight and thirty of this chapter, and whoever shoots at, kills or pursues with such intent any of such birds or game on the lands of another upon which there is set up in some conspicuous place, a board inscribed in legible English characters thus, £No shooting or hunting allowed on these premises,’ or pulls down or defaces any such board, or the letters thereon, shall be fined,” &c.
    Among the birds or game mentioned in said section.28, are ££ wild ducks,” and the complaint charged Shannon with shooting and killing wild ducks on the land of Tindall, situate in ■said county, &e.
    Shannon, having been bound to appear and answer said charge in the probate court, was there tided, convicted and sentenced. On the trial, a bill of exceptions, containing all the testimony, was taken, and upon proceedings in error, in the court of common pleas, said judgment was reversed. To this judgment of reversal, the prosecuting attorney, under sections 38 and 39, chapter 5, title 2, of said act, took exceptions, and the same are now submitted to this court.
    The uncontradicted facts appearing in the bill of exceptions are, in brief: That Tindall was the owner and in possession of a tract of land in said county, bounded on one side by the Sandusky river — a navigable stream; that Shannon, on October 29, 1877, when the killing of wild ducks was not prohibited by the statute, was in a skiff on the Sandusky river, between the middle thereof and the shore owned by said Tindall, from which position he shot and killed wild ducks swimming in, and flying over the water- between said shore and the middle of the river; that boards incribed in legible English characters, “No shooting or limiting allowed on these premises,” were set up in conspicuous places on said shore; and that Shannon had been duly notified by Tindall not to shoot or hunt on his lands. It also appears that the position occupied by Shannon on ■the river was within the limits of navigation as used by boats and other water craft engaged in commerce; and also, that the public generally had been accustomed to fish, and kill wild ducks, in the same location, in and upon the river.
    Upon this state of facts, the state of Ohio seeks the opinion •of this court. Did the court of common pleas err in reversing the judgment of the probate court ?
    
      Lemmon, Finóle dé Lemmon, for plaintiff:
    It is well settled in Ohio that the riparian projirietor owns .to the center of the river. Gavit v. Chambers, 3 Ohio, 496; Lamb v. Rickets, 11 Ohio, 311; 16 Ohio, 540; Angell on Watercourses, § 10 ; Jones v. Pettibone, 2 Wis. 308 ; State v. Pottenger, 33 Ind. 402; Phifer v. Cox, 21 Ohio St. 248 ; Marine v. Schulte, 13 Wis. 692, 775 ; Bingham v. Doane, 9 Ohio 165; Brown v. Chadbonn, 31 Me. 9; Lormon v. Benson, 8 Mich. 18, 29; Bury v. Snyder, 3 Bush (Ky.) 266 ; Tyler v. Williams, 4 Mas. 397; Delaplain v. Railroad Co., 42 Wis. 214; Rice v. Ruddiman, 10 Mich. 143. Tindall was therefore entitled to possession to the middle of the river (channel). Niehaus v. Shepherd, 26 Ohio St. 40, 44, 45; Angell on Watercourses, § 53; Lamb v. Rickets, 11 Ohio, 311. The river being boundary, presumption is, Tindall owns to center •of it. Jones v. Soulard, 24 How. 41; Braxner v. Bressler, 64 Ill. 484 ; Angelí on Watercourses, §§ 10,11,17. Now, the riparian owner, owning to the center of the river, having the right to possession, being subject only to the easement of navigation, has a qualified property in the wild game (ducks) while in or over his premises. Crimes Act of 1877, ch. 8, § 33; 2 Blackstone, 419; 1 Addison on Torts, 412, 413 ; 11 East, 571; 15 Wend. 550; 7 Johns. 16; 2 Kent Comm. (11 ed.) 348; 8 Mich. 32; Angell on Watercourses (7 ed.) §§ 87, 72; 2 Blackstone, 18; 2 Johns. Ch. 163; 5 Mas. 191; 108 Mass. 446.
    
      
      W. J. Boardmiam, also for plaintiff.
    
      Everett (& Eowler, for defendant
    Did Shannon violate any law ? He was in a public highway, made so by law, which the state cannot annul or repeal. The ordinance of 1787 provides that, “ the navigable waters leading into the Mississippi and St. Lawrence rivers shall be a common highway, and forever free,” &c. Shannon, then, had a right to be where he was. The ducks were wild, and therefore the property of no person, until captured. Tindall had no property in the ducks. Shannon was not on Tindall’s land nor did any of his acts, in any way, affect the land or property of Tindall. Then where is the violation of the law, or any right of Tindall ? Tindall did not own to the center or middle thread of the stream. Railroad Co. v. Shusemire, 7 Wall. 272; McManus v. Carmickal, 3 Iowa, 38, 39 ; 12 How. Pr. 443.
   McIlvatne, C. J.

This cause, and June v. Purcell, decided at this term and reported ante, 396, having a question in common, were considered together. In that case it was-held, that the title of a riparian owner of land bounded by a navigable stream in this state, extended to the middle or thread of the stream. It follows, upon the principle announced in that case, that the locus of the offense alleged in this, though upon the surface of a navigable stream, was within the boundaries of Tindall’s land, and was embraced within the literal meaning of the notice, “No shooting or1 hunting allowed on these premises.”

It is true, however, that the right of Tindall to so much of his lands as was covered by the waters of the Sandusky river, the same being a navigable stream, was not exclusive, but. subject to the right of the public to use the same as a highway, so that the entry of Shannon within the boundaries of Tindall’s premises, to wit, within the limits of this public highway, did not, per se, make him a trespasser; and clearly, an action against him for trespass guare clausum fregit, could not be maintained.' Hence, it was claimed by defendant, that his conviction was wrong, because, as is claimed, this-section of the statute applies only to persons who wrongfully break and enter tbe close of another contrary to his expressed will.

The provisions of the statute were not intended to punish trespassers guare elcvusum fregit, merely because they may have been guilty of a trespass ; but were intended to punish the act of killing, shooting at, or pursuing game on the lands of another, against which notice may have been given as provided in the statute; so that a person rightfully on the premises of another may commit the unlawful act, as well as one who commits a trespass by entering upon the premises.

It seems to us, that whatever change this statute may have made in respect to the law in relation to trespass on real property, the main purpose of the legislature was to confer upon the owner of lands within this state the exclusive right to hunt and kill the designated game upon his own premises, and to protect him in such right, provided- he complies with the prescribed conditions in regard to notice.

And with regard to notice, if the lands be “ inclosed and improved,” or if the boundaries be “ defined by stakes, posts, water-courses, ditches or marked trees,” verbal or written notice “ not to hunt thereon,” will bring the offender within the operation of the statute. And where a water-course, for instance, a navigable stream, constitutes a boundary, it is the opinion of a majority of the court, that all persons who have received verbal or written notice not to Imnt upon the lands of the owner, are bound to take notice that his lands extend to the middle of the water-course, if such be the fact.

But if the lands be not inclosed and improved,” or if they be not “ defined by stakes, posts, water-courses, ditches or marked trees,” as well as where they are so defined, the owner may bring himself and his lands within the protection of the statute by setting up, in some conspicuous place thereon, “ a board inscribed in legible English characters thus, No shooting or hunting allowed on these premises.” And in such case, all persons engaged in shooting at, killing or pursuing the designated game, must take notice, not only of the statute, but of the setting up of such board, and also of the extent or boundary of the lands on which the same is set up. And in respect to this notice, it makes no difference whether the lands ■or any part thereof be covered by water or not.

It is claimed,' however’, that this statute was not intended to protect lands covered by the waters of a navigable river. A majority of the court can see no grounds upon which lands covered by navigable streams should be excluded. They are as much the subject of private ownership as unnavigable streams. There is no distinction between them made by the terms of the'statute. True, navigable streams, in this state, are ■declared to be public highways ; but the right to use a public, highway is not abridged by protecting the owner of the fee in the exclusive right of killing game therein. Travel and commerce are not thereby hindered. And as the power of the legislature to protect game, or the exclusive right of the owner •of’land to kill the same on his own. premises, is as ample over land covered by water, whether navigable or innavigable, as it is over dry land, and as there is no attempt to distinguish between them in this statute, we must hold that all alike are within the protection of this statute.

Exceptions sustamed.

White, J.,

did not concur. He was of opinion that the .statute, being penal, must be strictly construed, and that it did not embrace game found upon the open public highways.  