Appeal from order of Court of Common Pleas of Dauphin County, No. 197 Commonwealth Docket, 1965, in case of Commonwealth of Pennsylvania v. Agway, Inc.
Richard H. Kutz, Deputy Attorney General, with him Edward Friedman, Counsel General, and William C. Sennett, Attorney General, for Commonwealth, appellant.
Richard C. Fox, with him McNees, Wallace & Nurick, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Jacobs, J. Concurring Opinion by Wright, J.
[ 210 Pa. Super. Page 151]
The Commonwealth of Pennsylvania brought this suit in trespass to recover damages for the value of fish killed as a result of pollution of the South Branch of French Creek and French Creek near Union City. The complaint alleged that the discharge of certain chemicals into the creek caused the death of some 12,000 fish and 60,000 minnows, all such fish being in a state of freedom in the inland waters of the Commonwealth.
[ 210 Pa. Super. Page 152]
The court below dismissed the complaint on the grounds that the Commonwealth did not have a property interest in such ferae naturae that would support a suit in trespass for damages, and that the exclusive remedy for the Commonwealth was the penal provisions of The Fish Law of 1959, Act of December 15, 1959, P. L. 1779, as amended, 30 P.S. § 1 et seq.*fn1
The controlling question in this case is whether the Commonwealth has a property interest in fish in a state of freedom, the invasion of which will support an action in trespass for monetary damages. We agree with the court below that the Commonwealth has no such property interest and affirm the dismissal of the complaint.
[ 210 Pa. Super. Page 153]
Fish running wild in the streams of a state or nation are ferae naturae. 2 Blackstone, Commentaries 403. They are not the subject of property until they are reduced to possession, Wallis v. Mease, 3 Binney 546 (1811), and, if alive, property in them exists only so long as possession continues. See, e.g., Mullett v. Page 153} Bradley, 24 Misc. 695, 53 N.Y.S. 781 (1898); Reese v. Hughes, 144 Miss. 304, 109 So. 731 (1926); James v. Wood, 82 Me. 173, 19 A. 160 (1889); Young v. Hichens, 1 Dav. & Mer. 592, 6 Q.B. 606 (1844). The Commonwealth does not allege a property interest by way of possession of the fish. Instead, it admits the fish were in a state of freedom in Pennsylvania waters, but asserts that it has a property interest either as sovereign or proprietor in all wild game and fish in the Commonwealth sufficient to allow its recovery of damages.
Neither this court nor the court below nor the Commonwealth has discovered any case which has held that a state has such a property interest in wild game and fish that it could be the subject of a tortious invasion. To support its position the Commonwealth relies on cases involving the validity of regulatory measures enacted by states to preserve and protect wild game, and argues that since such cases refer to wild game as the property of the state, it follows that the state also "owns" wild game for purposes of a suit in trespass.
Game and fish in a wild state often have been described as the property of the state, but an examination of the cases demonstrates that the interest of the state is that of a sovereign, not an owner. Thus in Commonwealth v. Papsone, 44 Pa. Superior Ct. 128 (1910), aff'd, 231 Pa. 46, 79 A. 928, 232 U.S. 138, 34 S. Ct. 281, 58 L. ed. 539 (1914), although this court referred to wild animals as the property of the sovereign, the case itself involved only the validity of hunting regulations and the holding was based solely ...