Request By:
Paul C. Gaines, III, Esq.
Johnson, Judy and Gaines
Attorneys at Law
326 West Main Street
Post Office Box 756
Frankfort, Kentucky
40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: David K. Martin, Assistant Attorney General
You have requested, in your capacity as counsel for the Departmetn of Fish and Wildlife Resources, an opinion of the Attorney General interpreting Kentucky Revised Statutes 150.170(3). KRS 150.170(3) provides:
"The resident owner of farm lands, his spouse or dependent children, shall, without procuring any sport hunting or sport fishing licenses, have the right to take fish or hunt during the open season (except trapping) on said farmlands of which they are bona fide owners. Tenants or their dependent children, residing upon said farmlands, shall have the same privilege."
Your question is, "What constitutes a 'resident owner' of farm lands, as that term is used in KRS 150.170(3)?"
Kentucky's highest court has previously decided this question as to an earlier version of KRS 150.170(3). In
Holland, et al. v. Flora, et al., Ky., 284 S.W.2d. 824 (1955), conservation officers cited patrons of a privately stocked "pay lake" for fishing without Kentucky fishing licenses. The operators of the pay lake attempted to evade the requirements of KRS 150.170 by issuing a lease to patrons of the fish pond and charging one dollar a day for fishing in the lake. KRS 150.170(3) at that time provided:
"Resident landowners, and resident children and lessees on their lands may, without a fishing license, take fish from the waters thereon by angling, such angling, in the case of public waters, to be from the bank only, and such persons may, without a hunting license, take wild animals and wild birds therefrom (except by trapping) , subject to the provisions of this chapter."
In Holland, it was contended that patrons of the pay lake were excluded from licensing requirements by KRS 150.170(3) because they were resident lessees. The Court held that "resident" referred to a connection with the particular land, and not simply a resident of the state:
"Even if the contract could be treated properly as a lease, it would not exempt the patrons from the license requirements because the exclusion has reference to resident lessees or lessees on the land of the resident owner. The patrons of the appellees' business, even if they are true lessees, are not sufficiently connected with the land of the appellees to come within the purview of the exclusionary provision of the statute." 284 S.W.2d. at 825.
Thus, it has been clear for over twenty years that the exemption in KRS 150.170(3) relates to those persons with a sufficient connection to the particular tract of land that they can be deemed residents of that tract of land. This is even more clear under the present version of KRS 150.170 (3). With respect to tenants, the statute provides that tenants "residing 150.170(3) upon said farmlands" shall have the same exemption as resident owners of the land. To construe the statute as requiring tenants to live on the land and requiring owners to merely live in the state to qualify for the exclusion would be to construe the statute as internally inconsistent and illogical. Accordingly, it is the opinion of the Attorney General that a resident owner of farmlands, to qualify for the exemption in KRS 150.170(3), must actually reside on the farmlands in question. For the rights of tenants, see OAG 75-119.