266 BULLETIN OF THE UNITED STATES FISH COMMISSION. 



36.— AN IMPORTANT FISILWAY CAUSE. 

 By MERWIK P. SNELI.. 



The case of William Parker versus The People of the State of Illinois 

 has come to the supreme court of Illinois on a plea of error from the 

 circuit court of Kendall County. It is a somewhat important one from 

 a fish-cultural point of view, as it involves the question whether or not 

 a land-owner upon an unnavigable stream can acquire a prescriptive 

 right to obstruct the passage of fish by a dam which has no fish-way. 



Mr. William Parker, the plaintiff in error, owns a Hour mill and a 

 furniture factory, which are situated upon his own land, on opposite 

 sides of the Fox River, in Kendall County, the necessary machinery 

 being moved by water-power supplied through the means of a dam with 

 a six-foot head. An Illinois statute, similar to ones existing in many 

 of the States, makes it the duty of all persons owning or erecting 

 dams to furnish them with suitable fish-ways, so that the migrating 

 species of fish may have free passage to and from their spawniug- 

 grounds. Mr. Parker, convicted before a justice of the peace for a vio- 

 lation of this act, appealed to the circuit court, in which judgment be- 

 ing rendered against him, he prosecutes a writ of error in the supreme 

 court of the State. 



The rather elaborate argument of the counsel for the people, Messrs. 

 Eugene Canfield and R. P. Goodwin, appears in the Forest and Stream 

 for April 5, 1883, under the heading The Fox River Fish-way Case. 



It had been claimed in behalf of Mr. Parker that the stream not be- 

 ing a navigable one, the right of fishing therein did not belong to the 

 public, but was vested in the riparian proprietors, and that, as the dam 

 bad been in existence for about fifty years without having caused any 

 complaint on the part of the other proprietors, its owner had acquired 

 against them a prescriptive right to prevent the passage of fish. 



It was also held that the general act under which he was prosecuted 

 was unconstitutional, since it impaired the obligations of the contract 

 contained in a certain private act, passed in 1857, which allowed one of 

 his remote grantors the right to increase the height of the dam in <jues- 

 tion, and thus to cause the water of the stream to overflow the lands of 

 neighboring proprietors, upon making due reparation. 



This latter branch of the argument has little general interest, as the 

 case is in this particular an unusual one, and the disputed points are 

 outside the range of what may be properly termed fishery law; it will 

 be sufficient to say that the counsel for the people seem to have demon- 

 strated, not only that nothing secured by the private act was affected 

 by the provision regarding the erection of fish-ways, but that the pri- 

 vate act itself had become void on the adoption of the State constitu- 

 tion of 1870. 



