American Fisheries Society. 39 



water capable of floating logs and small row boats, tlioiigh at 

 other times row boats can not be taken np the stream without 

 dragging or pushing them over shallow places. Wade, defend- 

 ant, entered upon this stream from a public highway which it 

 crossed, and thence went b}' boat up stream and caught fish by 

 hook and line in a pond the plaintiff, the club, had created by 

 erecting a dam on the stream, for the purpose of widening the 

 stream and making a fish pond of it. The court after a very 

 learned argument, held the stream a public navigable stream, 

 and that the public had a right of fishery in it while passing up 

 and down it, and keeping within the limits of the stream, and 

 not going upon the owner's dry land to get to the stream. This 

 happily settles one phase of the question, but others still perplex 

 the subject of the stocking of the lesser streams. 



IX. Tlie Legislature may prevent the 'pollution of streams, 

 30 as to destroy fish therein and may declare the pollution a pub- 

 lic nuisance; and such pollution may he enjoined. 



People V. Truckee Lumber Co., 116 Cal. 397; 



State V. Kroenert, 16 Wash. 644; 



Blydenburgh v. Miles, 39 Conn. 484. Substantially the 

 same rule has been applied in Wisconsin. 



SUGGESTIONS AS TO PROTECTIVE LEGISLATION. 



In view of the constitutional and other difficulties in fram- 

 ing adequate protective legislation, I venture to offer the follow- 

 ing suggestions to those preparing legislation on the subject of 

 protecting fish and game, confining the suggestions only to legal 

 points : 



1. The penalties should be imposed as forfeitures and not as 

 fines. The prosecution should be in the form of a civil action to 

 recover a forfeiture and not for misdemeanor, in criminal form. 

 The reason for this suggestion is that in most of the states, I 

 think in all, the prosecution thus secures the right of appeal, 

 when the justice or lower court, overawed by local sentiment, or 

 .sympathizing with the offenders, decides against the state. All 

 wardens know the difficulties attending prosecution in the petty 

 •courts. There can be commitment to jail till forfeiture is paid, 

 the same as in case of fines, and in the case of agents of trans- 



