76 PROBLEMS IN WILD LIFE CONSERVATION 



against the state, but against another individual in the ab- 

 sence of a statute to the contrary, is a difficult point to 

 determine. There are few federal cases directly to point. 

 In Gratz v. McKee 81 the plaintiff sued to recover the value 

 of certain muscles taken from the bed of a non-navigable 

 stream, the bed of which by the rule in that state was owned 

 by him. The United States Circuit Court of Appeals for 

 the eighth circuit upheld his contention, saying, 82 



Under the common law as it has existed, and still exists in 

 England, and in general as transmitted to the States of the 

 Union, modified by statutory enactment and supplemented by 

 usage, the owner of the soil would have a qualified, but sub- 

 stantial property interest in the fish and game upon his own 

 land, with the exclusive right to reduce it to possession superior 

 to that of others, and subject only to regulation by the state as 

 a sovereign and under its police power. 



The argument advanced by the defendant that the state's 

 ownership of wild animals precluded any action by the plain- 

 tiff, the court refused to accept as material in this case, 

 ruling that statutes declaring title to game and fish to be in 

 the state spoke only in aid of the state's power of regulation 

 and left the plaintiff's interest as against another individual 

 what it was before. 



The United States Supreme Court, 83 speaking through 

 Justice Holmes, upheld the decision of the circuit court but 

 distinguished between muscles and those fish and birds which 

 can move freely from place to place. The court avoided 

 saying that the landowner had qualified property in the latter 

 animals, contenting itself with the statement that at least he 

 had so far as muscles are concerned and may sue to recover 

 their value. 



81 270 Fed. 713 (1921). 



82 For contrary view, see Cooley on Torts, p. 323 (1932 ed.). 



83 McKee v. Gratz, 260 U. S. 127 (1922). 



