MCKEE V. GRATZ, 260 U. S. 127 (1922)

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U.S. Supreme Court

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

McKee v. Gratz

No. 61

Argued October 13, 16, 1922

Decided November 13, 1922

260 U.S. 127


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.7d 3 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

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