2G8 BULLETIN OF THE UNITED STATES FISH COMMISSION. 



material respect tended to the depopulation of the streams of such fish." 

 (3) That, since the injury must be apparent when the time giving the 

 prescriptive right commences to run (1), and since the injury in this case 

 was not apparent until shortly before the time when the right was called 

 in question (2), it must follow that Mr. Parker cannot claim a prescrip- 

 tive right to obstruct the passage of fish by his dam. (4) That no one can 

 prescribe for a public nuisance (Washburn on Easements, p. 481). a. 

 "The appropriation to one's self of public property which should be 

 common to all is a purpestre and a public nuisance (Wood on Xuisances, 

 § 14; Downing vs. The City of Aurora, 40 111., 481)." b. "The fouling 

 of a stream with waste from mills, like sawdust and the like, is of the 

 same character (Weazie vs. Divinel, 50 Minn., 495, 496 \ David vs. Wins- 

 low, 51 Maine, 93; Gerrick vs. Brown, lb., 250)." c. "From these cases 

 it appears that any use of property in a stream which violates that 

 'golden rule of the law' (State vs. Glen, 7 Jones, X. C, 327) Sic utere tuo 

 ut non alienum kedas, especially when it affects a large number of the 

 citizens of the State, constitutes a nuisance." d. Hence the right to 

 maintain an impassable dam, and thus deprive a water-course of fish, 

 is a public nuisance and cannot be prescribed for. 



This is a test case, and upon its decision may largely depend the suc- 

 cess or failure of the efforts which are being made for the restocking of 

 those waters of the State concerned from which the most highly- 

 esteemed food-fishes have been driven by the encroachments of the 

 manufacturing interests. It is somewhat doubtful whether the common 

 law recognizes fish in an unnavigable stream to be in any sense public 

 property, and if it shall be held that the owner of a dam may acquire 

 by prescription a right to interrupt by its means the migrations offish, 

 in the face of a law requiring the erection of fish-ways, the latter will 

 become a dead letter and the good end for which it was devised will 

 fail of accomplishment. It does not seem probable, however, that such 

 a decision will be made, especially in view of the opinion of the Supreme 

 Court of the United States in the case of Holyoke County vs. Lyman (15 

 Wallace, 500), which is cited by Messrs. Canfield and Goodwin in that 

 portion of their argument bearing upon the question of the private act 

 mentioned in the first part of this article. They observed that by the 

 Supreme Court "it was held that the right to have migratory fishes 

 pass in their accustomed course up and down rivers and streams, though 

 not technically navigable, was a public right, and might be regulated 

 and protected by the legislature in such a manner, through such otficers, 

 and by means of such form of judicial process, as it might deem appro- 

 priate; and that every grant of the right to maintain a mill-dam across 

 a stream where such fish are accustomed to pass is subject to the con- 

 dition or limitation that a sufficient and reasonable way shall be allowed 

 for the fish, unless cut off by express provision or obvious implications 

 in the grant." 



