Determination of Property"

The American inheritance from the English law is complex. In England, starting with William the Conqueror, almost all land and resources positively belonged to the monarch as sovereign for the nation and were conditionally granted under the feudal system to private parties. (There were only a handfull of private allodial claims that survived the Doomsday Survey.) The feudal system of grants and franchises were founded on this basis and transfered to the Americas. .

Independent of England, the new States did not have a monarchial system. However, at least one  royal prerogative appears to have passed to the States. This was transfer of ownership of the prerogative "sovereign lands" under tidal and navigable streams, and associated collective rights of common piscary or fishery. As a right most commonly associated with territorial sovereignty and the police powers, the States also inherited the right to determine the extent of littoral rights in these lands that were granted to riparian onwers. The recognition of these sovereign attributes were extended to all the States under the equal footing doctrine.

The concept that a collective sovereign identity represented by the State divesting its positive ownership of fish and game was discarded under Hughes v. Oklahoma. What appears to have remained is innate sovereign power of every State to declare what actions determine "take" or appropriation of private property. This includes a determination of  what acts of occupancy and possession among men are sufficient to determine the better right of ownership under equity.when a wild animals is taken from the "negative community of interests." It did not pertain to rights that traditionally "ran with title to the land." This included right of fishery, a quasi-transitory interest in migratory animals and ownership of certain resident animals such as bees.

Justice White in Geer v. Connecticut, 161 U.S. 519 (1896,) touches on this State sovereign function of determining property.

"From the earliest traditions, the right to reduce animals ferae naturae to possession has been subject to the control of the law-giving power.

"The writer of a learned article in the Repertoire of the Journal du Palais mentions the fact that the law of Athens forbade the killing of game (5 Rep. Gen. J. P. p. 307); and Merlin says (4 Repertoire deJurisprudence, p. 128) that 'Solon, seeing that the Athenians gave themselves up to the chase, to the neglect of the mechanical arts, forbade the killing of game.'

"In stating the existence and scope of the royal prerogative, Blackstone further says:

'There still remains another species of prerogative property, founded upon a very different principle from any that have been mentioned before,- the property of such animals, ferae naturae, as are known by the denomination of 'game,' with the right of pursuing, taking, and destroying them, which is vested in the king alone, and from him derived to such of his subjects as have received the grants of a chase, a park, a free warren, or free fishery. ... In the first place, then, we have already shown, and indeed it cannot be denied, that, by the law of nature, every man, from the prince to the peasant, has an equal of pursuing and taking to his own use all such creatures as are ferae naturae, and therefore the property of nobody, but liable to be seized by the first occupant, and so it was held by the imperial law as late as Justinian's time. ... But it follows from the very end and constitution of society that this natural right, as well as many others belonging to man as an individual, may be restrained by positive laws enacted for reasons of state or for the supposed benefit of the community.' 2 Bl. Comm. 410.

"The practice of the government of England from the earliest time to the present has put into execution the authority to control and regulate the taking of game.

"Undoubtedly, this attribute of government to control the taking of animals ferae naturae, which was thus recognized and enforced by the common law of England, was vested in the colonial governments, where not denied by their charters, or in conflict with grants of the royal prerogative. It is also certain that the power which the colonies thus possessed passed to the states with the separation from the mother country, and remains in them at the present day, in so far as its exercise may be not incompatible with, or restrained by, the rights conveyed to the federal government by the constitution. Kent, in his Commentaries, states the ownership of animals ferae naturae to be only that of a qualified property. 2 Kent, Comm. 347...."