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Commonwealth v. Agway, Inc. - 210 Pa. Super. 150, 232 A.2d 69 (1967)

Rule:

The Commonwealth of Pennsylvania has the power for the common good to determine when, by whom and under what conditions fish running wild may be captured and thus owned and the power to control the resale and transportation of such fish thereby qualifying the ownership of the captor. It has this power as a result of its sovereignty over the land and the people. But it is not the owner of the fish as it is of its lands and buildings so as to support a civil action for damages resulting from the destruction of those fish which have not been reduced to possession. 

Facts:

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.

The court 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.

Issue:

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?

Answer:

No.

Conclusion:

The Commonwealth has no such property interest and affirm the dismissal of the complaint.

Fish running wild in the streams of a state or nation are ferae naturae. 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. 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.

No Pennsylvania case was discovered that 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 because 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 the Supreme Court of Pennsylvania 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 on the sovereign power of the state to regulate and prohibit hunting and did not depend on any state property rights in the wild game.

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