## Facts

- Herrin owned and possessed multiple ranch properties in Lewis and Clark County, Montana, including fenced and posted land (the “Sentinel Rock” place), a pond wholly on his land, and streams including Fall Creek, as well as land adjacent to the Missouri River.
- Sutherland, a hunter and fisherman, allegedly acted without Herrin’s permission in multiple ways, including hunting, fishing, and traveling across Herrin’s lands and waters.
- On the Missouri River (a navigable waterway), Sutherland rowed and fished in the river channel and shot ducks; he also moored his boat and walked or trampled vegetation on land above the ordinary low-water mark.
- On Fall Creek (treated as non-navigable where it crossed private land), Sutherland waded and fished, and walked the banks, damaging vegetation and hay.
- While standing on neighboring land, Sutherland fired a shotgun at ducks flying over Herrin’s land.
- Sutherland entered fenced and posted areas, including by breaking a fence at the Sentinel Rock property, hunted despite posted warnings, and crossed enclosed land to reach public domain lands, trampling hay.
- Sutherland fished in Herrin’s pond and feeder streams located entirely on Herrin’s land and shot ducks associated with that private water.
- Herrin sued on eight causes of action for trespass; Sutherland’s demurrer was overruled, he failed to answer, and default judgment entered.
- The trial court awarded nominal damages totaling $1 for all causes of action; Sutherland appealed.

## Issues

1. Whether public rights in a navigable river permit hunting and fishing in ways that include entering or using adjacent private lands above the ordinary low-water mark.
2. Whether the public has any right, without consent, to fish in or traverse a non-navigable stream whose bed and banks are privately owned.
3. Whether a hunter who stands on one person’s land and fires a shotgun through the airspace over a third person’s land commits trespass against the third landowner.
4. Whether hunting on fenced and posted private land without consent constitutes trespass, even if physical damage is minimal.

## Decision

- The Montana Supreme Court affirmed the default judgment and nominal damages award.
- The court held that the public may fish and shoot waterfowl on navigable waters (and at birds flying over the water) so long as they do not trespass on adjacent private land.
- The court held that entering private land above the ordinary low-water mark along a navigable stream without permission constitutes trespass.
- The court held that fishing in a non-navigable stream with a privately owned bed, and entering its banks without permission, constitutes trespass; the landowner has the exclusive right to take fish within the stream as it passes through the owner’s land.
- The court held that firing a shotgun over another’s land, even while standing on different land, constitutes at least a technical trespass because it interferes with the owner’s quiet enjoyment of the property.
- The court held that hunting on enclosed and posted land without consent is trespass; posted warnings support both civil liability and potential criminal enforcement.
- The court approved nominal damages as sufficient to vindicate the property right despite minimal measurable harm.

## Legal Principles

- The state holds title to the bed of navigable waters; the public may use the surface for lawful activities such as fishing and hunting waterfowl, subject to general law and without trespassing on private banks and uplands.
- An adjacent landowner retains exclusive possessory rights in land above the ordinary low-water mark; unauthorized entry onto that land is trespass even if access is from a navigable river.
- In a non-navigable stream with a privately owned bed, the landowner has exclusive fishing rights within the portion running through the land; unauthorized fishing or bank entry is trespass.
- A landowner’s protected interest includes at least the airspace near the ground; a physical invasion of that near-surface airspace (such as firing a shotgun across it) can be actionable trespass without proof of substantial damage.
- Hunting on fenced or posted private land without consent is trespass; posted warnings strengthen the owner’s right to exclude and support enforcement consequences.
- Nominal damages are available for technical trespass to recognize and protect the right to exclusive possession and quiet enjoyment.

## Conclusion

The court affirmed nominal damages for multiple hunting and fishing intrusions and held that property protection extends beyond the soil to include near-ground airspace, making a hunter who fires a shotgun over another’s land liable for trespass even when standing elsewhere and even absent substantial proven harm.


Herrin v. Sutherland, 74 Mont. 587, 241 P. 328 (Mont. 1925)