Honorable A.F. Summer
No. 1976-0012
Mississippi Attorney General Opinions
November 23, 1976
Honorable A.F. Summer
Attorney General
Department of Justice
Office of the Attorney General
Jackson, Mississippi 39205
Request for written opinion
Dear Attorney General Summer:
Please advise under what circumstances a county attorney may in good faith bring an action for criminal trespass against one who enters and travels on non-navigable waters of our State to hunt ducks.
On March 17, 1972, Honorable William Jeff East, Special Assistant Attorney General, prepared an opinion with respect to the duties of a county attorney in the prosecution of criminal trespass actions against duck hunters who enter on the floodwaters of navigable streams.
A copy of this opinion is enclosed for your reference.
Since this opinion was given, Section 51-1-4 of the Mississippi Code of 1972, Annotated, which identifies on what waters of Mississippi persons have the right to fish and engage in water sports was added, and (assuming that duck hunting is a water sport contemplated by the Legislature) it appears that the public now may have the right to hunt for ducks by boats on streams or portions of streams which are not in fact capable of being navigated, but which meet the classification of this section, without trespassing on the property of the landowner beneath the water.
Also, the Legislature has amended Section 97-17-93 of the Code to provide for the posting of land under cultivation subject to flooding.
The interests of the landowners and hunters in this area are often in conflict, and numerous controversies have arisen.
A definitive judgment by you is greatly needed.
Particular questions have come up which are troublesome:
To be a public waterway under Section 51-1-4, is it the portion of the natural flowing stream or the stream itself that must meet the criteria of that statute?
Which bodies of water are to be considered portions of public waterways under Section 51-1-4 and which are not?
Must there be an actual flow of water in a portion of the stream before a hunter may go there, or is it sufficient if the stream itself is a flowing one?
From what point is the measurement as to the length of the portion of the stream to be made to determine if it is a public waterway under Section 51-1-...
