1. The Missouri statute declaring that title to all birds, game,
and fish shall be in the state, Rev.Stats. Mo.1909, § 6508; 1919, §
5581, speaks only in aid of the state's power of regulation,
leaving the land owner's property in these things otherwise
unaffected. P.
260 U. S.
135.
2. Unlike wild birds and fish, live mussels, which have
practically a fixed habitat in the bottom of a stream and little
ability to move, are in the possession of the owner of the land, as
are, even more obviously, the shells taken from such mussels and
piled upon the bank. P.
260 U. S.
135.
3. Such possession is enough to warrant recovery of substantial
damages for conversion by a trespasser. P.
260 U. S.
136.
4. But a license to take such mussels from unenclosed and
uninhabited places may be implied from custom, the more readily
where statutory prohibitions are limited to enclosed and cultivated
land and private ponds, as by Rev.Stats. Mo.1919, § 5662, 3654. P.
260 U. S.
136.
5. The existence of such custom and license, and whether it
extends beyond occasional uses to systematic extraction of mussels
in large quantities for commercial purpose,
held for the
jury. P.
260 U. S.
136.
6. Live mussels in a stream are not part of the realty within
the meaning of Rev.Stats. Mo.1909, § 5448; 1919, § 4242, allowing
triple damages in certain cases for the digging up and carrying
away
Page 260 U. S. 128
of stones, mineral, etc.," or other substance or material being
part of the realty." P.
260 U. S. 137.
7. Damages recoverable by the landowner for mussels taken by
trespass but in a belief of right due to a mistaken interpretation
of the state game laws are limited to the value at the time of
conversion. P.
260 U. S. 137.
270 F. 713 affirmed.
Certiorari to a judgment of the circuit court of appeals
reversing a judgment for the present petitioners in an action for
damages brought by the respondent Gratz to recover the manufactured
value of over 300 tons of mussel shells which were dug from a
stream bed on his land (then of his assignor) and converted into
buttons; also for triple damages under a Missouri statute.
Page 260 U. S. 134
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit brought by the respondent, who is also a
cross-petitioner, to recover the value of mussel shells removed
from the lands of the respondent's assignor and manufactured by the
petitioners into buttons. It was brought in a court of the State of
Missouri, but was removed to the district court of the United
States. There were two counts; one simply for the conversion of the
shells and a second alleging that the shells were part of the
realty, and that the plaintiff was entitled to treble damages under
Rev.Stats.Mo.1909, § 5448 (Rev.Stats.Mo.1919, § 4242). At the
trial, the district court directed a verdict for the defendants,
and the judgment was affirmed by the circuit court of appeals.
Gratz v. McKee, 258 F. 335. The main question was disposed
of on the ground that, by the Statutes of Missouri, Rev.Stats.1909,
§§ 6508, 6551, the title to the mussels was in the state.
Page 260 U. S. 135
As to the second count, it was held that the mussels were not
part of the realty. Later, a rehearing was granted, and while the
Court adhered to its former opinion on the second count, it
rightly, as we think, held that the statutes declaring the 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 what it was
before.
See Missouri v. Holland, 252 U.
S. 416,
252 U. S. 434.
It assumed that the defendants were trespassers, and sent the case
back for a new trial on that footing, the damages to be confined to
the value of the shells at the date of conversion, and not to
include that subsequently added by manufacturing them into buttons.
Gratz v. McKee, 270 F. 713.
The mussels were taken alive from the bottom of what seems to
have been at times a flowing stream at times a succession of pools,
were boiled on the banks, and the shells subsequently removed. As
to the plaintiff's title, it is not necessary to say that the
mussels were part of the realty within the meaning of the Missouri
Statutes or in such sense as to make the plaintiff an absolute
owner. It is enough that there is a plain distinction between such
creatures and game birds or freely moving fish, that may shift to
another jurisdiction without regard to the will of land owner or
state. Such birds and fishes are not even in the possession of man.
252 U. S. 252
U.S. 434; 2 Kent, Comm. 349;
Young v. Hichens, 6 Q.B. 606.
On the other hand, it seems not unreasonable to say that mussels,
having a practically fixed habitat and little ability to move, are
as truly in the possession of the owner of the land in which they
are sunk as would be a prehistoric boat discovered underground, or
unknown property at the bottom of a canal.
Elwes v. Brigg Gas
Co., 33 Ch.D. 562;
Reg. v. Rowe, Bell, C.C. 93;
Barker v. Bates, 13 Pick. (Mass.) 255. This is even more
obvious as to the shells, when left piled upon the bank, as they
were, to
Page 260 U. S. 136
await transportation.
Northern Pacific R. Co. v. Lewis,
162 U. S. 366,
162 U. S. 378,
162 U. S. 382.
Possession is enough to warrant recovery of substantial damages for
conversion by a trespasser. We say nothing about the character of
the stream as to navigability. The jury at least might find that
there was nothing in that to prevent the application of what we
have said. We are slow to believe that there were public rights
extending to the removal of mussels against the landowner's
will.
But it cannot be said as matter of law that those who took the
mussels were trespassers, or even wrongdoers, in appropriating the
shells. The strict rule of the English common law as to entry upon
a close must be taken to be mitigated by common understanding with
regard to the large expanses of unenclosed and uncultivated land in
many parts, at least, of this country. Over these it is customary
to wander, shoot, and fish at will until the owner sees fit to
prohibit it. A license may be implied from the habits of the
country.
Marsh v. Colby, 39 Mich. 626. In Missouri, the
implication is fortified by the limit of statutory prohibitions to
enclosed and cultivated land and private ponds. Rev.Stats.1919, §§
5662, 3654. There was evidence that the practice had prevailed in
this region. Whether those who took these mussels were entitled to
rely upon it, and whether, if entitled to rely upon it for
occasional uses, they could do so to the extent of the considerable
and systematic work that was done, were questions for the jury.
They could not be disposed of by the Court. The implication of a
license of the kind that we have mentioned from general
understanding and practice does not encounter the difficulties that
have been suggested in implying a license from conduct alone in
cases where the same conduct, after twenty years, might generate an
easement, it being a plain contradiction to imply and interim a
license which would prevent the acquisition of a prescriptive
Page 260 U. S. 137
right.
Chenery v. Fitchburg R. Co., 160 Mass. 211,
212.
As to the rule of damages in case the plaintiff recovers, in the
absence of a decision by the supreme court of the state, we should
not regard the mussels as part of the realty within the meaning of
the statute relied upon in the second count, and, so far as appears
at present, we see no reason for charging the defendants, if at
all, with more than the value of the mussels at the time of
conversion as ruled below.
Wetherbee v. Green, 22 Mich.
311;
Wooden-Ware Co. v. United States, 106 U.
S. 432;
Union Naval Stores Co. v. United
States, 240 U. S. 284. The
result is that this judgment of the circuit court of appeals is
affirmed, but not all the principles laid down by it, and that the
case will stand for trial by jury in the district court.
Judgment affirmed.
