9 S.C.L. 244 (S.C. 1818)
Despite a warning from plaintiff not to do so, defendant rode over and hunted deer on plaintiff’s unenclosed and unimproved lands.
A jury found that each party should pay their own costs, and plaintiff moved for a new trial on the ground that riding over unenclosed and unimproved lands is an actionable trespass when it is contrary to the express orders of the landowner.
Does an individual have the right to hunt on unenclosed and uncultivated lands without incurring liability for trespass, even over the objection of the property owner?
Holding / Rule
Yes. Hunters have a right to hunt on unenclosed and unimproved lands.
The right to hunt on unenclosed, uncultivated lands has long been recognized and exercised. It has been both a source of sustenance and profit for many hunters. The forest has been regarded as a common and animals (ferae naturae) common property belonging to the first taker. “If, therefore, usage can make law, none was ever better established.” Moreover, there must be some injury to support a trespass action—merely riding over the soil is not sufficient. The right to hunt on unenclosed lands also has social benefits, i.e., training of militias. Nor should disapproval of the property owner deprive a hunter of a right the law grants him.