LEGAL ANALYSIS 93 



this is that without some type of governmental control, there would 

 be no limitation upon the availability of all fish to all comers at all 

 times and all places. Given the population of humans and the num- 

 bers of fish and their value, they would soon be gone. In other words, 

 there is no incentive upon each individual fisherman to quit fishing 

 in the interests of conservation, for he knows that if he does not 

 catch the fish, someone else will. Contrast this to the landowner who 

 "tree-farms." Originally, when the supply of land and timber was 

 more than adequate to fulfill the needs of man, the timber cutter 

 simply moved from one location to another. But, as the sources of 

 supply have dwindled, the timber-cutter is in the process of becoming 

 a landowner who grows his own product. As part of that process, he, 

 himself, sees to it that there is some continuing source of replenish- 

 ment of the supply, and he can assure himself of this replenishment 

 because he has control. When he stops cutting to allow regeneration, 

 no one else can lawfully come in to take what is left. Not so with 

 the fishery; so far we have not attributed to the fishing grounds the 

 same incidents of area control that we do in the case of ordinary 

 land ownership. 



This, then, has been the primary reason for governmental control. 

 For the most part it has taken the form, as all are aware, of restric- 

 tions upon the time and place for fishing and upon the gear which 

 can be used. 



It would be useful to recall the opinion of Mr. Justice Rutledge 

 in Republic Natural Gas Co. v. Oklahoma, '^^'^ a 1948 decision of 

 the United States Supreme Court, discussed more fully earlier in this 

 report. In that case, Oklahoma had had to legislate special rules to 

 cope with the problem caused by the mobile nature of underground 

 gas in order to protect the owner of the ground area as marked out 

 on the surface. Since the gas tends to flow underground toward the 

 place from which it is being taken to the surface, without regard 

 to man's division of the area into various land titles on the surface, 

 each landowner benefits most if he extracts the gas as fast as possible. 

 In this opinion the following comment is made with respect to this 

 problem: 



"These difficulties, intensified by the competitive struggle for the 

 product and the inadequacy of common-law ideas to control it, have forced 

 both the states and the federal government to adopt extensive regulatory 

 measures in recent years. This has been necessary both to conserve the 



119. 334 U. S. 62 ( 1948), discussed 5//p/7/, nn. 37-40. 



