FOREST AND STREAM 
April 6, 1912 
Game Preserves 
By HENRY CHASE 
43-1: 
I N my former letter I attempted to treat the 
subject of private game preserves in America 
as a serious issue. I said they were false 
institutions in this country, but that, un¬ 
less sportsmen awake to the necessity of con¬ 
serving the supply of game we now possess, 
circumstances may cause the establishment of 
preserves in large numbers and bring about the 
European system of protection in which hunt¬ 
ing is a privilege reserved almost wholly to 
the wealthy class and pursued upon private 
preserves. Now, in this discussion, let it be 
understood that by .private game preserves we 
do not include land used by game breeders as 
such, nor deer and other animal farms, nor 
such bird refuges as the one mentioned in 
Forest and Stream recently, located near De¬ 
troit, for all these are of more or less public 
benefit. What is here referred to are those 
great tracts of wild land owned by wealthy 
people and provided for their personal and 
private enjoyment of hunting to the exclusion 
of the public—a purely selfish institution, and 
not conceived with any intent to benefit the 
public nor to aid the cause of general game 
preservation. 
Herein I desire to direct attention to the 
legal position of the private preserve in refer¬ 
ence to the game found thereon belonging to 
the State—the birds and quadrupeds from with¬ 
out the preserve which fly or wander into and 
find refuge in it. We will concede that where 
a private preserve is completely stocked by its 
owner with game legally acquired by him by 
purchase or otherwise, and as long as such 
game is confined upon his premises, it consti¬ 
tutes private property and the owner has an 
indefeasible title to it. But even if this game 
escapes its confines, leaves the preserve and re¬ 
turns to its natural liberty, it becomes the prop¬ 
erty of the State. And certainly the preserve 
owner’s title to game which wanders back and 
forth at will from land surrounding the estate 
cannot be much superior to that of any other 
citizen. It is true he has what is known at com¬ 
mon law as a profit a prendre in his land for the 
purpose of hunting and fishing thereon, and this 
is a valuable right in its way between indi¬ 
viduals, but it does not affect the State’s sov¬ 
ereign rights. 
This brings up the most important and diffi¬ 
cult problem in reference to game which the 
courts of this country have been called upon to 
solve, and that is, the exact nature and extent 
of the title to game possessed by the State and 
the purpose for which that title is held by it. 
Suffice it to say, the courts have held con¬ 
flicting opinions upon the subject, but w'e are 
content to pin our faith to the views expressed 
by Chief Justice White of the United States 
Supreme Court in the case of Geer vs. Con¬ 
necticut. In that case this great jurist, by one 
stroke of his pen, did more to advance the 
cause of game protection in America than all 
other agencies conibined. It is singular that he 
is seldom mentioned in this role, when the 
fact is, every true sportsman in the United 
States should doff his hat to our worthy chief 
justice. And when the sportsmen fully ap¬ 
preciate what he did, they will do so. 
The justice took up the subject of the owner¬ 
ship of game and fish from the earliest times 
known to the laws of civilized countries. He 
traced it through the Grecian, Roman and Salic 
laws, and gave extracts from the Code Napol¬ 
eon, which he said summed up an unbroken 
line of law and precedent, as follows; “There 
are things which belong to no one, and the 
use of which is common to all. Police regula¬ 
tions direct the manner in which they may be 
enjoyed.’’ He showed conclusively that all the 
property of which game in its wild condition is 
capable of bearing lies in the State for the bene¬ 
fit of its people in common. This decision 
gave a new impetus to the States to go for¬ 
ward with a free hand and protect their game. 
Let us proceed to analyze the subject upon 
the theory of the law in this country that the 
wild game of a State belongs to the people 
thereof in their collective sovereign capacity, 
and that the individual can acquire only such 
a qualified or transient property therein as the 
State elects to give him, and that this prop¬ 
erty which the State gives is common to all its 
citizens alike. There is, and necessarily must 
be, an equality of opportunity to all during the 
lawful open season to capture game. In the 
meantime, let us keep in view the right of 
landowners in this connection. No one has a 
right to trespass on private property in the 
pursuit of game. The landowner, therefore, 
simply has a superior right to game found upon 
his premises by virtue of his right to forbid 
trespassing upon his land. Nevertheless, in 
the absence of statutes to the contrary, he is 
subject to the same regulations protecting game 
as every other citizen. In actual practice, with¬ 
out the privilege of pursuing game, of course, 
the public’s right of hunting becomes nugatory, 
for, as a matter of fact, if the law were strictly 
observed, there would be scarcely no ground 
upon which the public would be free to hunt. 
Outside of the National forest reserves and a 
few State parks, almost every foot of game 
land in the United States is held in private 
ownership. Ordinarily, then, on most occasions 
when any of us go for a hunt we commit ac¬ 
tionable trespass and are liable for nominal 
damages. Here, indeed, appears a singular in¬ 
consistency and conflict of laws which amounts 
to this: Whereas, the general ownership of 
game within a State is in its people, yet as in¬ 
dividual property owners may forbid hunting 
and pursuing game, such ownership is of no 
practical value to the people, and is merely an 
empty-sounding word. 
We know, however, this is not true in fact, 
for a great majority of landowners—especially 
those possessing large tracts of wild land— 
recognizing the rights of the people, are quite 
willing that the public should hunt over their 
property. To sum up, then, the legal status of 
private game preserves resolves itself into this: 
Their owners acquire their right of exclusive¬ 
ness to the game upon their lands principally 
through their proprietary right to forbid tres¬ 
passing upon their real property. The game 
is owned in common, but when it finds refuge 
on a private preserve the public is forbidden 
to pursue it any further. Yet the preserve 
owner may do so. 
In quite a number of States of late years 
the public has evidently been considering this 
palpably unjust state of affairs and figuring 
upon plans to correct it. The landowner’s right 
of property is admitted and cannot be attacked 
by direct hostile legislation, for it is safeguard¬ 
ed by the State and Federal constitutions. But 
the public, seeing that it is being deprived of 
its rights by indirection and conflict of laws, 
has discovered that it can protect itself and re¬ 
taliate by indirect legislation. To this end stat¬ 
utes have been enacted which are aimed solely 
at the preserve owner and so restrict his hunt¬ 
ing privilege as to make it worthless to him as 
a means of recreation and enjoyment, and he 
finds himself a marked man in the community. 
It remains to be said that the true remedy 
for guarding the public’s right of hunting and 
preserving game lies in a different method. 
As the game grows scarcer the incentive for 
wealthy sportsmen to provide private preserves 
for their own enjoyment grows stronger. Each 
new preserve limits and restricts the rights of 
the public by narrowing the area of public hunt¬ 
ing grounds, and attracts the game away from 
same. So that, although the process may be 
slow, yet it seems inevitable that in course of 
time nearly all of the game left will be found 
upon private preserves and the public excluded 
from hunting it. Taken in time the remedy 
for this undesirable condition is neither radical 
nor difficult. In most of the States the hunter’s 
license is in vogue, and large sums are thus 
collected from the sportsmen annually. Why 
not set aside a certain proportion of these funds 
each year and invest it in State refuges and 
propagation farms? Land, unfit for agricul¬ 
tural purposes but excellent for game covers, 
can be purchased very cheaply. And by this 
process it would be only a matter of time that 
all waste land in each State would be owned by 
the public in perpetuity. In the meantime, if 
the State came into the market as a purchaser 
and discovered that the preserve owners had 
got possession of all the most available game 
land and refused to sell it, by the law of eminent 
domain and condemnation proceedings, the 
State can force them to do so for the public 
good, by making due compensation for their 
loss. If this plan were pursued it would have 
a two-fold beneficial effect. First, it would 
insure the sportsmen their right of hunting on 
good game ground and increase their interest 
in protection. Second, the authorities could 
provide^ better means of protecting the game 
on State lands than upon private property, as 
is now the case. 
It can hardly be doubted that unless the 
sportsmen are soon aroused to the necessity 
of game protection, the above plan will have to 
be adopted, or else the right of free hunting 
in America will be only a memory; all of the 
game will be found upon private preserves and 
the European method of game protection will 
finally establish itself in a land that has long 
boasted of its free institutions. The plan above 
is not a new one, nor is it applying the radical 
principles of State socialism to the game in¬ 
terests. 
