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. " . . . Clause in the same manner as a state's control over its ground (or surface) water. But is this assumption warranted? The argument that it is not can be broached by considering a sentence from Toomer. "The whole ownership theory, in fact, is now generally regarded as but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource." Toomer, 334 U.S. at 402. To this sentence was attached the following note: "See, e.g., Pound, An Introduction to the Philosophy of Law, 197-202. The fiction apparently gained currency partly as a result of confusion between the Roman term imperium or governmental power to regulate, and dominium, or ownership. Power over fish and game was, in origin, imperium. Ibid." Toomer, 334 U.S. at 402 at n. 37. However, by Toomer's own reasoning, state control over natural groundwater seems less like an imperium over fish and wildlife and more like a dominium over land. Toomer involved shrimp fishing in the three-mile belt off South Carolina's Atlantic shore. ld. at 387-91. The Toomer Court distinguished McCready v. Virginia, 94 U.S. 391 (1876), which had dealt with the right of Virginians to plant oysters in the tidal waters of the Ware River. "The right of Virginians in Virginia waters, the Court said, was 'a property right, and not a mere privilege or immunity of citizenship.' And an analogy was drawn between planting oysters in a river bed and planting corn in state- owned land." Toomer, 334 U.S. at 401 (quoting McCready, 94 U.S. at 395). McCready did not apply, the Toomer Court said, because However satisfactory the ownership theory explains the McCready case, the very factors which make the present case distinguishable render that theory but a weak prop for the South Carolina statute. That the shrimp are migratory makes apposite Mr. Justice Holmes' statement in Missouri v. Holland, 1920, 252 U.S. 416, 434, 384, 11 A.L. R. 984 [upholding the Federal Migratory Bird Treaty Act of 1918], that "To put the claim of the State upon title is to lean upon a slender reed. Wild birds are not in the possession of anyone; and possession is the beginning of ownership." Indeed, only fifteen years after the McCready decision, a unanimous Court indicated that the rule of that case might not apply to free-swimming fish. Toomer, 334 U.S. at 401-2 (citing Manchester v. Massachusetts, 139 U.S. 240, 265 (1891). Seacoast Products, also relied on by Sporhase, followed Toomer closely in a passage which has already been largely quoted: "[t]o put the claim of the State upon title is," in Mr. Justice Holmes' words, "to lean upon a slender reed." Missouri v. Holland, 252 U.S. 416, 434 (1920). A State does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of "owning" wild fish, birds, or animals. Neither the States nor the Federal Government, any 13