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IV. Statutory Regulations.-Fisheries are in most of the United States, as at common law, the exclusive right of the owners of the banks of rivers not navigable, unless otherwise appropriated by statute; this right, however, unless secured by a particular grant or prescription, is held subject to legislative control. 1 Fish are not the subject of ownership in running streams like animals and fowls which have been domesticated. They pass up and down streams for breeding purposes, and the owner of the soil of the streams has no right to obstruct their passage, for to do so would be to appropriate what belongs to all, which is contrary to common right, and hence nothing short of legislative power can. regulate and control the enjoyment of this common ownershipThis must be so from common necessity. The power of the legis lature to thus control and regulate must be admitted.2

The preservation of fish in the waters of a State is of such public concern as to fall within the domain of legislative power.3 No owner can lawfully obstruct the free passage of fish. This limitation on the action of the proprietor is for the public, and is not extinguished by any inattention or neglect in compelling the owner to comply with it, for no laches can be imputed to the government, and against it no time runs so as to bar its rights. Riparian owners have the exclusive right to take fish on their own lands, but they have no right to abate the passage of fish, and their ownership is subject to legislative control and regulation.5

The legislature has the right of regulating the taking of fish in private rivers which are unquestionably private property.

Every owner of a dam holds it on the condition that a sufficient and reasonable passage may be allowed for fish. Holyoke v. Lyman, 15 Wall. (U. S.) 500; Stoughton v. Baker, 4 Mass. 528; Nickerson v. Brackett, 10 Mass. 212; Cottrill v. Norrich, 12 Me. 229; Vinton v. Welsh, 9 Pick. (Mass.) 92; Commonwealth ย. Chapin, 5 Pick. (Mass.) 204; Common. wealth v. Essex Co., 13 Gray (Mass.), 244. An owner of a several fishery is prima facie the owner of the soil. Parthriche v. Mason, 2 Chit. 658 (?)

So also an owner of a several fishery, in ordinary cases, and when the terms of the grant are not known, may be presumed to be the owner of the soil. Somerset v. Fogwell, 5 B. & A. 879.

Although a long and exclusive enjoyment of a right to a several fishery in a public navigable river is sufficient prima facie evidence upon which to presume that the crown had granted a separate right before Magna Charta, yet the omission of all mention of the right in any probable true inventory, taken since that period, of all the property of the alleged owner of that right, or any reasonable ground exclusive, but in common with

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other persons, is sufficient to negative such presumption. Edgar v. Commissioners, 38 L. T. A. S. 732.

The presumption that the bed and soil of a river belong to the riparian owner does not apply to a large inland, nontidal, and navigable lake. Johnson v. Bloomfield, 8 Jr. R. C. L. 68.

The right of fishing, being an incorporeal hereditament, cannot be the subject of an exception in a deed or a lease. Corker v. Payne, 18 W. R. 436; 4 Jr. R. C. L. 380.

1. Nickerson v. Brackett, 10 Mass. 212; Cattrill v. Myrick, 3 Fairf. (Me.) 222; Lunt . Hunter, 16 Me. 1; Moulton v. Libby, 37 Me. 472; Preble v. Brown, 47 Me. 284; Proctor v. Wells, 103 Mass. 216; Weller v. Snower, 42 N.J Law, 341; Jacobson 7. Fountain, 2 Johns. (N. Y.) 170; Gould 7. James, 6 Cow. (N. Y.) 369; Rogers v. Jones, 1 Wend. (N. Y.) 239.

87.

2. Parker v. People, Ill. 581.
3. Eubank v. Pence, 5 Litt. (Ky.) 338.
4. Stoughton 7. Baker, 4 Mass. 522.
5. Vinton . Welsh, 9 Pick. (Mass.)

6. Hooker. Cummings, 20 Johns. (N. Y.) 90.

The States may protect their oyster-fisheries by inflicting the forfeiture of a vessel enrolled and licensed under the United States laws, for a breach of proper State regulation concerning this branch of commerce.1

1. Constitutionality of Statutes.-Any statute is unconstitutional which, in its scope, grants to a party the power of taking or injuriously affecting private property for private use, upon making compensation, without the consent of the owners.2 Every owner of an obstruction, in a stream holds it on the condition that a sufficient passage may be allowed for fish, and any statute in contravention of this doctrine is unconstitutional and void.3 Private individuals cannot acquire prescriptive rights in a stream against the public. If such rights could be sustained, then all the fish in the streams would soon be destroyed, and the production of food decreased perhaps millions of dollars annually, working an oppression to the poor; this being the case, it is one reason why no State can give a riparian owner an absolute right to dam up a stream, and prevent the passage of fish. The police powers of the State are inalienable, and no legislature can lawfully contract not to exercise them or barter them away.5

1. Smith v. Maryland, 18 How. (U. S.) 71.

The property in the oyster-fisheries in the public bays and rivers in East New Jer sey is vested in the State by the Revolution of 1776, as succeeding in this respect to the prerogatives and regalities which belonged to the crown, and afterwards vested in the grantees under an act of New Jersey in 1824. Martin v. Waddell, 16 Pet. (U. S.) 367.

Pennsylvania and New Jersey have, by mutual arrangement, concurrent jurisdiction over the waters of the Delaware river to a certain extent, and the exercise of the right of fishery is exercised in conformity to such arrangements. Elmer's

Dig. 199.

It is held that the king, before the Revolution, had the right to grant lands in Maryland, covered by navigable waters, subject to the right of the public to fish and navigate them; and that this right, subject to the restriction, passed to the proprietors of the State by the royal grant, and that the right was then vested in Maryland. Browne v. Kennedy, 5 Harr. &. J. (Md.) 195; Chapman v. Haskins, 2 Md. Ch. 485. There is no several fishery in the navigable waters of New Jersey. Arnold v. Mundy, 1 Halst. (N. J.) 1. But the right of several fishery in navigable waters in front of the owners of the land may and does exist in individuals by usage in several of the States. Angell's Rights of Prop. in Tidewaters, c. 7.

2. Ryerson v. Brown, 35 Mich. 333; Loughbridge v. Harris, 42 Ga. 500; Sadler v. Lougham, 34 Ala. 311; Tyler v. Beecher, 44 Vt. 648; Coster v. Tidewater Co., 3 C. E. Greene (N. J.). 54.

3. Holyoke v. Lyman, 15 Wall. (U.S.) 266; Stoughton v. Baker, 4 Mass. 524; Cattrill v. Merrick, 12 Me. 229.

4. Parker v. People, 111 Ill. 581.

5. Stone v. Mississippi, 101 U. S. 814; Beer Co v. Massachusetts, 97 U. S. 25; Boyd v. Alabama,9 4 U. S. 645; Com. v. Internal Liq., 115 Mass. 153; Metropolitan v. Barrie, 34 N. Y. 657; Mugler v. Kansas, 123 U. S. 623; Foster v. Kansas, 112 U. S. 201; Bartemeyer v. Iowa, Co. v. Crescent City Co., 111 U. S. 746; 18 Wall. (U. S.) 129; License Cases, 5 How. (U. S.) 504; Butchers' Union New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 659.

In Illinois, in May 31, 1879, an act was passed that it should be the duty of every person who should own, or who should erect, dams, sloughs, or other watercourses within the State, to place therein suitable fishways for the free passage of fish. This act was held to be within the constitutional power of the legislature to impose this duty as provided in the statute. Also no owner of a dam could, by occupancy or use, for any length of time, acquire a prescriptive right as against the public, so as to prevent the enforcement of the provision of the statute against him. This was a case where the owner of a mill-dam

which had been in use for many years procured the passage of an act of the legislature authorizing him to raise this dam higher, or to erect a new one in its place. This dam, both before and subsequent to this act, was so constructed as entirely to obstruct the passage of fish in the stream on which it was situated. He contended that the act authorizing him to construct the dam and to continue it as it was without any fishway was a contract, and that if he was required to make a fishway, as provided in the act of 1879, it would be to impair the obligations of a contract, and therefore it was unconstitutional. But the court ruled against him, and he was compelled to make a fishway for the free passage of fish up and down the stream. Parker v. People, 111 Ill. 581.

Section 1625 of the Missouri Revised Statutes forbids the erecting or maintaining any seine net or trap in waters of the State, or in front of the mouth of any stream, slough, or bayou, and prohibits the taking or catching of any fish in the waters of the State by any such means; it further provides that such prohibition shall not apply to waters wholly on the premises of such persons or persons using such device. Held, that this last provision applies only to waters which are wholly on the premises of the owner or owners pleading it. If it is a stream, it must have its source and its outlet, and its whole course on the owner's or joint owners' land. If it is a lake or bayou it must be entirely surrounded by the lands of such owner or joint owners in order to be wholly on their premises. The defendant in a prosecution had violated this section in trapping and netting fish from a bayou connected with a lake. The bayou was about one hundred yards wide and ten feet deep at its junction, and extended back into the country for about a mile. The bayou had been surveyed as land, and so appears on the United States surveys. The defendant had the consent and authority of the owners of all the land on each side of said bayou and adjacent thereto, and on which the waters of the bayou are located, to so fish there. Held, that he did not come within the exception contained in this section, and the facts would support a conviction. It was held that this section was constitutional, as it did not take private property for public purposes without due process of law. The right of man in animals, feræ naturæ, and game, is not strictly private property. It is a qualified property, and may be restrained within rea

sonable limits to prevent the extermination of such game. State v. Blount, 85 Mo. 543.

Albemarle Sound, being a navigable water, is not subject to entry. Every citizen of the State of North Carolina has the liberty and privilege of fishing therein. While the owner of a beach may exclude all others, yet he cannot acquire the sole right of fishing in a certain sound independently of all others. To constitute a several fishery there must be right of soil, which no person has in Albemarle Sound. Skinner v. Hettrick, 73 N. Car. 53.

A dam having been erected by the authority of the legislature, the defendant could not be regarded as wrongfully maintaining it. But if the fish-way is inadequate, the defendant must be allowed a reasonable time to construct another suitable for the passage of fish. If he fails to do it in a reasonable time the party damaged can collect therefor. Bristol . Water Co., 42 Conn. 403.

Fishing for oysters in the navigable waters of New Jersey, is a right common to all citizens, which may be exercised by them at will, except so far as it may be restrained by positive law. Paul v. Hazelton, 37 N. J. L. 106. Where a party, under the Virginia act of 1873 relative to the planting of oysters, obtained an assignment of an oyster-bed for the planting and sowing of oysters for one year, and paid the tax, and had the beds staked off as required before May 1, 1874, he has such an exclusive interest in them that he might maintain an action of unlawful detainer against a party who entered upon the beds and held them against him. Power 7. Tazewells, 25 Gratt. (Va.) 786.

Prohibiting non-residents from gathering oysters within the waters of New Jersey as enacted by the legislature, Nix. Dig. 131, sect. 7, operates alike as to natural or planted oysters. Such an enactment for the protection of property must be considered as a matter of internal police, and not a regulation of commerce with foreign nations or among the States. Neither does it contravene the provisions of the United States constitution, that the citizens of each State shall be entitled to all the privileges of citizens in the several States. Haney v. Compton, 36 N. J. Law, 507.

An adverse user, which is known to have originated without right, within the memory of persons now living, will not of itself make lawful a public nuisance. State. Franklin Falls Co., 49 N. H. 240. Statutes for the protection of fish in

particular waters are not forbidden by a constitutional restriction upon local legislation. Thus the legislature of Indiana has power, notwithstanding such restrictions in the State constitution, to pass the act-sess. act of 1867, 128-limiting the time and mode of taking fish in special waters. State v. Boone, 30 Ind. 225.

The New Hampshire Laws, 1872, ch. 25, is a revision of and a substitution for all former statutes prohibiting the catching of trout, and as no way is provided for the recovery of the penalty fixed, such penalty may be recovered under the statute, ch. 248, § I. Purington v. Ladd, 58 N. H. 596.

A party owned land through which ran a non-navigable stream connecting with a pond. Legislative authority was given to the town to make such improvements as were necessary to the preservation of alewives in the pond, and the waters connected therewith. The act provided for damages. Held, that the value of the fishery to such owner could not be compensated for. Cole v. Easthan, 133 Mass. 65.

A grant by colonial government, confirmed by subsequent legislation of the State of New York, may confer upon a township exclusive right to an oyster fishery, and the lease of the town confers upon the lessee the right to take oysters. The trustees are not precluded from granting such right because at other times formerly they may have restricted the right of lessees, and not have allowed the taking of oysters from natural beds. Hand v. Newton, 92 N. Y. 88.

One who plants oysters in tidal waters on land of the State may maintain trespass against another who carries them away. Metzger v. Post, 44 N. J. Law,

74.

The Virginia act of 1880 provides that vessels or boats employed in unlawful dredging for oysters in Virginia shall be forfeited. Held, that the State thereby acquires no title to the oysters found on such forfeited vessel or boat. McCandlish . Comm., 76 Va. 1002.

When a particular statute regulates the fishing in a certain river, and a subsequent statute contains provisions inconsistent with the former, regulating fishing in all rivers of the State, the provisions of the former statute are not thereby repealed, but fishing in the particular river is governed by the former statute. State v. Storgess, 9 Oreg. 537.

The Maryland acts of 1884, ch. 518, making it an offence to carry oysters over Maryland waters without a State license, has no application to oysters caught else

where than in the State of Maryland. State v. Insley, 64 Md. 28.

Where a certain pond exempted from the provisions of the general law prohibiting the taking of fish from ponds, but no exemptions, in the case of such pond, is made from the prohibition against having for sale fish caught in ponds generally, one may be convicted for having for sale fish caught in such pond. State v. Beal. 75 Me. 289.

The owner of soil between high and low water mark has the exclusive right to catch fish by means of fixtures attached to such soil. This right he may convey with or without the upland, and with such limitations as he sees fit to impose. Matthews 7. Treat, 75 Me. 594.

The legislature may protect the passage of migratory fish in their accustomed course in streams, it being a public right. One who owns all the land surrounding a natural pond having an outlet communicating with public waters is liable for taking fish from the pond out of the season of fishing prescribed by statute. State v. Roberts, 59 N. H. 256.

The Vermont act of 1882, No, 17, sec. 2, prohibiting all net fishing in Lake Champlain, or in rivers emptying into this lake, within ten miles from their mouths, is constitutional and not a prohibition of fishing. Drew v. Hilliker, 56 Vt. 641. A person may be indicted under the Massachusetts laws,-statute, ch. 91, 101

for digging oysters from licensed flats, if in digging quahogs he disturbs and destroys oysters, though he does not take them from the water, and has not intended so to do. Comm. v. Manimon, 136 Mass. 456.

The State of New York may grant to the inhabitants of towns the exclusive right to use the lands under the public waters for oyster-planting, as provided in act 1868, ch. 73. People v. Thompson, 30 Hun (N. Y.), 457.

A State may forbid non-residents catching fish in its waters for manure and oil, and manufacturing manure and oil from fish caught within its waters. Chambers v. Church, 14 R. I. 398.

The New Jersey act of March 9, 1855. provides that any person owning marsh lands, within the boundaries of which there are creeks detached, or ponds, may plant clams and oysters, and for the preservation of which he is properly to stake off such clam and oyster grounds, so as not to interfere with the passing of vessels. Held, that the mere staking off without planting gave no right to the bed of the creek thus marked out. Birdsall v. Rose, 46 N. S. 361.

Under the Massachusetts law, Ch. 91, sect. 13, it is required that where application is made to the commissioners of inland fisheries for a lease of a great pond, notice must be given to all cities or towns within whose limits any part of the pond lies; but a lease of such pond to a town is not invalid although such notice is not given where it appears that the pond is entirely within the limits of the town holding the lease. One indicted for illegal fishing in such pond cannot set up as a defence the invalidity of the lease. Com. v. Eliot, 146 Mass. 5.

If an indictment which charges the defendant with unlawfully fishing in a pond follows the words of the statute, without a particular detail of facts and circumstances, but with such clearness as to indicate the offence without any uncertainty or ambiguity, it is sufficient. Commonwealth v. Richardson, 142 Mass. 71,

Under Massachusetts statute of 1884, ch. 212, s. 1, it is provided that possession of lobsters under the required size shall be prima facie evidence to convict in all prosecutions under this section. This is not in conflict with the clause imposing a penalty upon selling such lobsters. Commonwealth v. Barber, 143 Mass. 560.

It is well settled in Massachusetts that there is a public right to take shell-fish on the shore and flats below high-water mark, and within one hundred rods of the upland, until the flats are enclosed by the proprietor. Weston v. Sampson, 8 Cush. (Mass.) 347; Dunham v. Lamphere, 3 Gray (Mass.), 268; Lakeman 7. Bunham, 7 Gray (Mass.), 437; Com. v. Roxbury, 9 Gray (Mass.), 526; Com. v. Bailey, 13 Allen (Mass.). 541; Proctor v. Wells, 103 Mass 216; Com. v. Manimon, 136 Mass. 456; Parker v. Ryder, 144 Mass. 440. See Peck v. Lockwood, 5 Day (Conn.), 22; Paul v. Hazelton, 37 N. J. Law, 106; Oyster Co. v. Baldwin, 42 Conn. 255; Preble v. Brown, 47 Me. 284.

Miscellaneous Points.-"Eels" are included in the general words "any kind of fish known as river fish." Woodhouse v. Etheridge, 6 L. R. C. P. 570; 24 L. T, N. S. 709.

A fishing mill-dam is a fishery within 24 and 25 Vict. c. io9, s. 20. Hodgson v. Little, 14 C. B. N. S. III.

A statute prohibiting persons from wil fully taking, destroying, or spoiling any spawn, fry, or brood of any sea-fish in any weir or other engine or device whatsoever, seems not to comprehend shellfish; if it does, it means a taking for destruction, and not a taking of oysters' spawn for the purpose of removing it to beds for further growth and maturity, to

make it marketable. Bridges v. Richard. son, 2 M. & S. 568.

If a party takes samlets contrary to statute, but does not know that they are samlets, he cannot be held guilty. Hapton v. Thirlwall, 12 W. R. 72; 9 L. T. N. S. 327.

When a statute provides that the meshes or masks of a net shall be two inches and a half broad, the breadth of two inches and a half is to be measured by the length of thread between the adjacent knots. Thomas v. Evans, 4 Jur. N. S. 710; 27 L. J. M. C. 172.

In the settlement of the question as to what is river and what is sea, the mouth of the river comprehends the whole space between the lowest ebb and the highest flood mark. The fact of the absence or presence of fresh water is not the basis of decision. Horne v. Mackenzie, 6 C. & F. 628.

By statute no person was allowed to fish except by a rod and line under certain restrictions. In violation of this he should forfeit all fish taken and any net or other device. In contravention of this statute two men fished with a net, but caught nothing. Held, the net having been used for the purpose of taking salmon contrary to law, it had become forfeited. Ruther v. Harris, 1 L. R. Exch. Div. 97.

In Pennsylvania an indictment cannot be maintained under the statute of May 5, 1876, against a party fishing in a private stream or pond, where the whole stream or pond is not so far private prop erty as to confine therein fish with which it is stocked. Reynolds 2. Com., 93 Pa. St. 458.

The North Carolina Act of 1875, chs. 115, 183. do not preclude one engaged in seine-fishing from removing stakes put up to operate the pond-net. Hettrick v. Page, 82 N. Car. 65.

In Louisiana the banks of navigable rivers, though they are the property of those who own the adjacent lands, are subject to the public use so far that vessels may make fast to the shore and to the trees planted there, and be unloaded, and the goods deposited and fishing-nets dried. So any person may fish from

those banks, build cabins on the sea-shore for shelter, and dry nets there. Civil Code, arts. 443, 446; Hanson v. Lafayette, 18 La. 295.

In North Carolina it is held that in a river not navigable for the purposes of navigation the right of fishing belongs to the riparian owner. Ingraham v. Threadgill, 3 Dev. (N. Car.) 59.

In Tennessee the owners of land on a

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