BULLETIN OF THE UNITED STATES FISH COMMISSION. 267 



The first point, however, is one of considerable interest, and it may 

 be worth while to present the principal points of the argument in detail. 



I. It is claimed by the plaintiff in error that, the stream being unnav- 

 igable, the question is one of private right, in which the people of the 

 State at large have no interest. 



On the part of the people it is held : (1) That the fish, which are called 

 "game fish" in the statutes of the State, are game in the same sense 

 that birds and mammals not domesticated are (vide Phelps vs. Eacey, 

 60 K. Y., 10), and have the same legal status. The fact that they live 

 in the water iustead of in the air or upon the land makes no difference. 

 (2) "The ownership of all fish and game which are free or not domesti- 

 cated within the State, is in the State as the sovereign power, * # * 

 the right of capture being * * * a mere boon, expressly or impliedly 

 permitted by the State to the citizen, to be limited or revoked at pleas- 

 ure (Wagner vs. The People, 97 111., 320)." (3) "This being so, the 

 prescriptive rights claimed against the riparian owners who happen in 

 this regard to be injuriously affected by the obstruction to the free pas- 

 sage of fish amount to nothing. If, outside of the question of prescrip- 

 tion, the State, under what is called the police power, has a right to 

 regulate the passage of fish in the natural streams of the State for the 

 benefit of the people, or any portion of them, no prescriptive right can 

 be set up by one who maintains an obstruction in such a stream against 

 the will of the legislature expressed under the forms required by its or- 

 ganic law. One who had owned and occupied land in this State for 

 twenty years before the enactment of the first act of our legislature 

 making it unlawful to kill prairie chickens during a certain portion of 

 the year, might as well be allowed to set up as a defense to a prosecu- 

 tion for violating the act, that he had for the entire period of twenty 

 years killed every bird of that species which had come upon his land 

 during the prohibited season, and so had a prescriptive right to set the 

 law of the State at defiance." 



II. It is claimed by the plaintiff that since the right concerned is a 

 private one, it may be prescribed for like other private rights; and he 

 having exercised it freely for nearly half a century, may clearly claim it 

 now by prescription. 



On the other hand, leaving out the question of the police power of the 

 State, mentioned in the quotation just above, it is held: (1) That it is 

 well established that the time giving the right to any servitude (as in 

 this case giving to the owner of the dam the right to prevent fish by it 

 from reaching the lands of his neighbors) "does not begin to run until 

 the injury is done and becomes apparent." (See Washburn on Easements, 

 pp. 128, 129, 355, 408, and 530.) (2) That " it was not until a very recent 

 period that it became known that the spawning beds of the most valuable 

 fish which naturally frequent the stream in question, which largely 

 supply this stream, were the bayous and overflowed lands along the 

 Illinois and Mississippi Eivers, and that these mill-dams in any very 



