100 REPORT OF STATE BOARD OF FISH COMMISSIONERS. 



Second — That the owner of the soil has a special property in fish so 

 long as they are in the water that flows over his land. 



First — Right of fishery in the public. 



(A) The principle involved here is the same as that which existed 

 under the common law of England. 



By the common law, all fish within the waters of the realm and all 

 animals ferse naturse belong to the King. The right of taking game, and 

 free fishery, was a royal privilege — a franchise granted by the King to 

 certain of his subjects. 



The reason of this law was, that the King is the ultimate proprietor of 

 all the lands in the kingdom; they being all held of him as the chief lord, 

 or lord paramount of the fee; and that, therefore, he had the right of 

 the universal soil, to enter thereon, and to chase and take such creatures 

 at his pleasure; and also upon another maxim of the common law: that 

 these animals are bona vacantia, and, having no other owner, belong to 

 the King by his prerogative. (Blackstone's Com., Book II, pp. *39, *40, 

 M15.) 



The right of fishery as a prerogative is upon the same principle just 

 cited. 



The law of this country, so far as the principles involved in this case 

 are concerned, is the sam.e as the common law, to wit: that the original 

 proprietorship of fish, and the right of fishery, are in the sovereignty of 

 the States — the people themselves, who hold the fisheries in trust for the 

 use of the public. 



The sovereign power in the United States is in the people. {Moore vs. 

 Snow, 17 Cal.200; Chisholmys. Georgia, 2 Dall. (A. S. Sup. C), 471.) 



Where the right of fishery existed in the King under the common law, 

 that right exists in the people of the United States, and they, in their 

 sovereign power, have the right to regulate the manner and method by 

 which fish shall be taken, and may even prohibit the catching entirely, 

 if they so elect, or may do any act in reference thereto. 



From the earliest organization of our State government, the right to 

 regulate and control the fisheries of the State was assumed by the 

 Legislature, and this right has not, we think, been questioned. 



As early as 1854, the Legislature passed an Act for the preservation of 

 fish (salmon), declaring any weir, dam, or obstruction in any bay, strait, 

 river, stream, creek, or slough of this State to be a nuisance. (Statutes 

 1854, p. 122.) 



From that time down to the present, the Legislature has passed 

 numeroiis Acts all tending to the preservation of fish within the State. 

 Not only has the Legislature passed laws to protect the fish with which 

 the streams were already stocked, but also large sums of public money 

 have been expended in propagating fish and stocking the fresh-water 

 streams of the State. 



