FISHERIES.

II. Public fisheries generally. and protest of the owner of the banks and bed of the stream, is an exercise of a right given to the public under Wis. Laws 1893, chap. 307, § 20, and not a trespass. Willow River Club v. Wade, 42 L.R.A. 305, 100 Wis. 86, 76 N. W. 273.

§ 6. Acquisition by prescription.

a. A person cannot claim by prescription merely, as one of the public, a right to fish on private land of another, because the public cannot prescribe. Albright v. Cortright, 18 L.R.A. 616, 64 N. J. L. 330, 45 Atl. 634.

b. The unorganized public cannot acquire the right of fishing in a pond, either by grant or by prescription, even if each individual member of such public acquires the right. Turner v. Hebron, 14 L.R.A. 386, 61 Conn. 175, 22 Atl. 951.

§ 7. Impairment of right.

a. The rights of fishery and privileges of the shore to which the people of Rhode

Island are entitled, under the Constitution of the state, guaranteeing a continuance of the rights previously existing under the charter and usages of the state, are not violated by filling or partially filling, a cove basin covered by tide water, under the authority of an act of the general assembly, where it appears that the fisheries, if they had not wholly ceased to exist, at least had ceased to have any substantial value. Clarke v. Providence, L.R.A. 725,

16 R. I. 337, 15 Atl. 763.

b. An injury to a public fishery in navigable waters, which affects all alike who fish in that locality, will not sustain a private suit by a fisherman who has no special privilege or right to fish at the place affected. Kuehn v. Milwaukee, 18 L.R.A. 553, S3 Wis. 583, 53 N. W. 912.

§ 8. Power of state to grant exclusive right to fish.

See also post, § 18 a.

a. A state in the exercise of its power of regulation and control may grant exclusive State v. rights of fishery to individuals. Leavitt, 26 L.R.A. (N.S.) 799, 105 Me. 76, 72 Atl. 875.

b. The state ownership of fish and game is not such a proprietary interest as authorizes a sale thereof or the granting of special interest therein or license to enjoy, but is solely for the purposes of regulation and State v. preservation for the common use. Mallory, 67 L.R.A. 773, 73 Ark. 236, 83 S. W. 955.

b. Regulation and protection.

§ 9. Generally.

Of shell fish, see post, § 20.
Jurisdiction of admiralty, see ADMIRALTY,
§ 3 f.

Prohibiting shipment of fish from state, see
COMMERCE, § 66 b-d.
Equal protection and privileges, see CONSTI-
TUTIONAL LAW, §§ 290, 296, 385, 386.
Due process in regulations generally, see
CONSTITUTIONAL LAW, §§ 482, 594.

a. In general.

4621

Due process in seizure and destruction of
property used in violation of law, see
CONSTITUTIONAL LAW, § 661 d-g.
Police power as to, see CONSTITUTIONAL
LAW, § 706.
Jurisdiction to enforce fish laws on bound-
ary river, see COURTS, § 33.
Power of court to review fish and game laws,
see COURTS, § 107.

Legislative power to create public right of
fishing in stream, see EMINENT Do-

MAIN, § 198 a, b.

Injunction against destruction of fish, see
INJUNCTION, § 60 d.
See also post, § 19 c.

a. Power resides in the several states to

regulate and control the right of fishing in
jurisdictions.
the public waters within their respective
Lawton v. Steele, 7 L.R.A.
134, 119 N., Y. 226, 23 N. E. 878, aff'd in
152 U. S. 133, 38 L. ed. 385, 14 Sup. Ct.
Rep. 499.

b. The state has the right and is under the duty to increase and preserve fish in streams. State v. Theriault, 43 L.R.A. 290, 70 Vt. 617, 41 Atl. 1030.

State ex

c. The right of fishing in navigable waters is common in the public, and subject to legislative protection, and control. rel. Remley v. Meek, 51 L.R.A. 414, 112 Iowa, 338, 84 N. W. 3.

d. The legislature of a state has ample authority to adopt all precautions and regulations deemed desirable or necessary for the preservation and increased producState v. Harrub, 15 tion of its fisheries. L.R.A. 761, 95 Ala. 176, 10 So. 752.

e. The legislature has the power to enact laws for the protection and preservation of game in the forests, and fish in the

waters, of the state.

Peters v. State, 33

L.R.A. 114, 96 Tenn. 682, 36 S. W. 399.
f. The governmental power to prescribe
regulations of fishing in public and private
waters resides in the legislature. Winous
Slaughterbeck,
Point Shooting Club
L.R.A.1918A, 1142, 96 Ohio St. 139, 117 N.
E. 162.

V.

g. Fishery in the tidal waters of a state is subject to public regulation, and can be exercised only at such times and by such methods as the legislature may see fit to permit. Daniels v. Homer, 3 L.R.A. (N.S.) 997, 139 N. C. 219, 51 S. E. 992.

h. The legislature may prohibit the taking of fish from the waters within the state during certain seasons of the year, and may regulate the manner in which they may be taken during other portions of the State v. Lewis, 20 L.R.A. 52, 134 Ind. 250, 33 N. E. 1024.

year.

imi. No constitutional privilege or munity or property rights of the citizen are interfered with by prohibiting fishing in the State v. Tice, public waters of the state. 41 L.R.A. (N.S.) 469, 69 Wash. 403, 125 Pac. 168.

j. For the purpose of regulating fishing therein, a state may claim jurisdiction over a bay within its borders, the headlands at the mouth of which are less than 2 marine leagues apart, although the distance be

II. Public fisheries generally. b. Regulation and protection.
§ 12. Pollution of waters.
Prohibition against casting sawdust into
stream, see COMMISSIONERS, § 1 b;
CONSTITUTIONAL LAW, §§ 81 g, 291 a,
668 f, 706 m, n.

tween the opposite shores of the bay with-
in the headlands is more than that; and it
may prevent a citizen of another state from
taking fish in such bay, although he is us-
ing a vessel duly enrolled and licensed un-
der the laws of the United States for car-
rying on such fishery,—at least in the ab-
sence of any law of Congress, relating to
the subject and of all discrimination against
citizens of other states. Com. v. Man-
chester, 9 L.R.A. 236, 152 Mass. 230, 25 N.
E. 113, aff'd in 139 U. S. 240, 35 L. ed.
159, 11 Sup. Ct. Rep. 559. (Annotated)
k. The Maryland statute for the protec-
tion of fish in artificial ponds has no ap-
plication to a cove of navigable water.
Sollers v. Sollers, 20 L.R.A. 94, 77 Md. 148,
26 Atl. 188.

§ 10. In private waters. Shell fish, see post, § 20 b, d, e. See also post, § 14 b, c.

Protection of fish in exercise of police pow-
er, see CONSTITUTIONAL LAW, § 706 1-0.
Review by court of statute prohibiting, see
COURTS, § 95 d.

Judicial notice of statute prohibiting, see
EVIDENCE, § 3 b.

Indictment for, see INDICTMENT, ETC., §
100 a.

Protection of water from pollution generally, see WATERS, §§ 1 c, 102 p, 122 a.

a. The legislature may forbid the casting of sawdust into streams, for the preservation of the edible fish. Com. v. Sisson, 1 L.R.A. (N.S.) 752, 189 Mass. 247, 75 N. E. 619. (Annot ted)

h. The unrestrained exercise for thirty years of the right to cast sawdust into a stream gives no prescriptive right which will interfere with the public right to al-regulate such use for the preservation of food fishes. Com. v. Sisson, 1 L.R.A. (N.S.)

a. The owner of land has a right to take fish and wild game, by reason of his ownership of the soil; but the right is not an unqualified and absolute one and must ways yield to the state ownership and title held for the purpose of regulation and preservation for the public use. State Mallory, 67 L.R.A. 773, 73 Ark. 236, 83 S.

W. 955.

V.

b. The state has a right to protect fish in all streams through which they have freedom of passage to and from the public fishing grounds, although they flow over lands entirely subject to private ownership. People v. Truckee Lumber Co. 39 L.R.A. 581, 116 Cal. 397, 48 Pac. 374.

(Annotated) c. The owner of a lake has no constitutional right to the fish therein, which is unwarrantably interfered with by prohibiting them to be taken except in a specified manner. Peters v. State, 33 L.R.A. 114, 96

Tenn. 682, 36 S. W. 399.

d. A person having title to the soil under
a portion of a meandered lake covering
portions of several sections of land does
not have a right to fish in the waters of
the lake, even over the portion of the land
thereunder to which he has title, and even
with the consent of the joining owners,
where such fishing violates a statute de-
signed to protect the fish for the benefit of
the people of the state, who have an inter-
est in the preservation of the fish in the
lake. Bannon v. Logan, L.R.A.1916E, 522,
66 Fla. 329, 63 So. 454.
(Annotated)

§ 11. Municipal regulation.
In Mississippi River, see BOUNDARIES, § 2 c.
Jurisdiction to punish for fishing without
license, see BOUNDARIES, § 3 d.
Equal protection and privileges, see CON-
STITUTIONAL Law, §§ 290, 296, 385, 386.
See also post, § 14 a.

a. A municipality, in the absence of statute or custom, has no title to or exclusive control over the fisheries within its limits, except in private waters of which it has the title. Ex parte Bailey, 31 L.R.A. (N.S.) 534, 155 Cal. 472, 101 Pac. 441.

752, 189 Mass. 247, 75 N. E. 619.

c. Under a statute making it unlawful deleterious to the propagation of fish," into throw "sawdust or any other matter to a stream, the deleterious matter referred to is not limited to such as possesses the cludes sulphur or mine water drained from same hurtful qualities as sawdust, but inCo. 43 L.R.A. (N.S.) 401, 71 W. Va. 470. a mine. State v. Southern Coal & Transp.

76 S. E. 970.

d. The fact that a statute requires the drainage of mines does not authorize the mine owner to dispose of the copperas and sulphur water therein by emptving it into

a stream in violation of another statute

which prohibits the emptying into streams
of matter deleterious to fish. State v.
Southern Coal & Transp. Co. 43 L.R.A.
(N.S.) 401, 71 W. Va. 470, 76 S. E. 970.
8 13. Possession; selling or offering
for sale.

Statute prohibiting sale during closed sea-
son as affecting interstate commerce,
see COMMERCE, § 116 a, b.
See also post, § 20 c, d.

a. Having in possession during the close season fish purchased in Canada is not a violation of the New York fisheries, game, and forest law, §§ 110, 112, forbidding any person to catch, kill, or be possessed of certain fish during the close season therein prescribed, since the purpose of such statute is only to protect fish in waters of the state, and the possession intended to be prohibited is therefore only of fish caught or Fish Co. 52 L.R.A. 803, 164 N. Y. 93, 58 killed in such waters. People v. Buffalo

N. E. 34.

b. The possession within the state for the purpose of sale, of trout lawfully caught in another state, is subject to Or. Laws 1899, p. 199, making it unlawful to sell, offer for sale, or have in possession for sale any species of trout at any time, without

III. Private rights.

c. The state does not, by reserving by fish in the water upon his own land does statute the right to regulate the building not include the right to destroy_the_fish of wharves or the taking of shellfish when he does not take. People v. Truckee Lum granting lands covered by tide water to ber Co. 39 L.R.A. 581, 116 Cal. 397, 48 Pac, an individual, convey to him the exclusive 374. right to take floating fish over such land, although his deed contains a warranty clause. Hume v. Rogue River Packing Co. 31 L.R.A. (N.S.) 396, 51 Or. 237, 92 Pac. 1065, 96 Pac. 865.

§ 18. Prescriptive rights.
Prescriptive right to cast sawdust into
stream, see ante, § 12 b.

a. An exclusive right of fishing in a pub d. Where the owner of land bordering on lic navigable river cannot be established by waters which are navigable in fact has no prescription where it was not perfected be title to the soil under them, the right of fore the state succeeded to the rights of the fishery as well as that of navigation is in Crown, since, the state being without power the public, and not in him. Hume v. Rogue to grant an exclusive right, none will be River Packing Co. 31 L.R.A. (N.S.) 396, presumed. Slingerland v. International 51 Or. 237, 92 Pac. 1065, 96 Pac. 865. Contracting Co. 56 L.R.A. 494, 169 N. Y. (Annotated) 60, 61 N. E. 995. (Annotated) e. A shore owner cannot acquire a sevb. Where the state has never authorized eral fishery in tide water as against the the grant of an exclusive right of fishery public, by a custom among fishermen that in tide waters, no prescriptive right there. the shore owner who shall clear out a fish to can be acquired, since the presumption ing place in front of his property shall of grant which is the basis thereof cannot have the exclusive right of fishing there. exist. Hume v. Rogue River Packing Co. Hume v. Rogue River Packing Co. 31 L.R.A. 31 L.R.A. (N.S.) 396, 51 Or. 237, 92 Pac. (N.S.) 396, 51 Or. 237, 92 Pac. 1065, 96 1065, 96 Pac. 865.

Pac. $65.

f. That principle of the common law of England which vested the title to ponds, and the right of fishing and fowling thereon, in the riparian owner, was never in force in Maine so far as ponds of more than 10 acres in extent were concerned, but in that state the right to free fishing and fowling on such ponds has always belonged to the public, or if it has not always existed, it has become vested in the public by the acquiescence, of the riparian owners. Conant v. Jordan, 31 L.R.A. (N.S.) 434, 107 Me. (Annotated) g. The right to take fish in any water which is not navigable, although it belongs prima facie to the owner of the soil, belongs with the ownership of the water, if that is separated from the ownership of the soil. Turner v. Hebren, 14 L.R.A. 386, 61

227, 77 Atl. 938.

Conn. 175, 22 Atl. 951.

h. An exclusive right of fishing in the water adjacent to property is not one of the rights of the riparian owner. Ex parte Bailey, 31 L.R.A.(N.S.) 534, 155 Cal. 472, 101 Pac. 441.

i. The right of fishing in fresh water non-navigable streams is in the riparian owners. Griffith v. Holman, 54 L.R.A. 178, 23 Wash. 347, 63 Pac. 239.

j. The owner of the bed of a natural fresh-water, nontidal stream has the exclusive right of fishery therein. Hartman v. Tresise, 4 L.R.A. (N.S.) 872, 36 Colo. 146,

84 Pac. 685.

k. The owner of land through which nonboatable flowing water passes has the sole right to take fish therefrom. State v. Theriault, 43 L.R.A. 290, 70 Vt. 617, 41 Atl. 1030.

1. The owner of land covered by water has the exclusive right to hunt and fish over it. Schulte v. Warren, 13 L.R.A. (N.S.) 745, 218 II. 108, 75 N. E. 783.

m. A riparian owner's exclusive right to

c. The exercise of a fishing right by
means of nets not affixed to the soil in
front of his property, by the owner of land
bordering on tide water, is not adverse to
the public and the state, since he is merely
exercising a right to which he is entitled
as one of the public, and it is immaterial
that he warns intending fishermen away.
Hume v. Rogue River Packing Co. 31 L.R.A.
(N.S.) 396, 51 Or. 237, 92 Pac. 1065, 96
Pac. 865.

d. The exclusive right to fish in a pond
may be gained by one who excludes all
others from fishing therein without his
permission during the whole period of the
statute of limitations, although from time
immemorial all members of the unorganized
public had fished therein as a matter of
right, and a part of the soil under the
pond belongs to a town, and the title to
Turner v. Hebron, 14 L.R.A. 386, 61 Conn
another part has been lost or abandoned.
175, 22 Atl. 951.
(Annotated)

IV. Shell fish, oysters, and clams.

Death caused by tainted oysters as within | Equal protection and privileges as to, see accident policy, see INSURANCE, § 675 d. Effect of judgment to bar proceedings to ascertain whether oyster bed is desirable for public use, see JUDGMENT, § 161 e. Certainty of statute as to, see STATUTES, § 25 g, h.