James J. Kilpatrick

When does a trespass upon private property amount to a permissible trespass upon private property? The Supreme Court passed up a chance to ponder that recurring question just before it quit last month for the summer.

The case involved the hunting of game birds in South Dakota. The facts were not in dispute. Robert and Judith Benson own a ranch in Tripp County, down on the Nebraska line. There they raise mostly livestock and a variety of crops, but they also devote a substantial part of their property to a private hunting preserve for pheasant.

For good or ill, hunters lawfully engage in road hunting along several miles of the Bensons' land. The family has experienced buckshot 200 feet inside their property. On one occasion hunters shot out a window of their home. Fed up, in October 2003 they filed suit in state court alleging violation of both state law and the federal constitution. They complained, in sum, that the state is effectively taking their property for public use without payment of just compensation.

The Bensons won in the trial court, but lost on appeal to the state supreme court. Now they have lost their appeal to the U.S. Supreme Court and must try their luck back home with civil suits. It promises to be a difficult job.

The high court should have taken this one. Under South Dakota law, hunters are now free to hunt small game from public roads. The law excepts certain zones protecting schools, churches and private homes, but otherwise it is bang-bang-bang. Total strangers are free temporarily to lay down their guns, climb over fences into a private game preserve, and there recover privately propagated birds that inadvertently fly their way. True, game birds, even hatchery chicks, are public property once they fly away, but all the same it doesn't seem right.

Justice John K. Konenkamp of the South Dakota Supreme Court obviously felt uneasy about concurring even in the result of his colleagues' opinion. Their rationale was "worrisome." By agreeing that there had been no actual "taking" of private property, he concurred only in the result. The state had struck a difficult balance, he said, between the interests of hunters on one side and landowners on the other, but the balance fell within constitutional limits. If hunters obey all the rules of road hunting, "the interference to landowners from shooting from or across a public road at wild game in flight will be minimum."

James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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