REPORT OF STATE BOARD OF FISH COMMISSIONERS. 101 



This right of control over the fisheries of the State by the Legislature 

 is a recognition of the State's proprietary interest in and to the fish 

 within its streams. If the authority vests in the State to enact laws for 

 the preservation of the fish; if it can prohibit fishing in whole or in 

 part; if it can expend public revenues for the propagation of fish, it is a 

 recognition of the proprietary interest of the State in and to the fish- 

 eries. 



It is obvious that anything which would injure or damage this pro- 

 prietary interest of the State above set forth, and, as in this case, totally 

 destroy the property, would be a public nuisance. 



(B) The State holds the fisheries within its territory in trust for the 

 public. 



The State in its sovereign power holds the legal title to all fisheries 

 within its borders in trust for the people. This is true as to the 

 unnavigable as well as the navigable streams. 



The same principle obtains as in the case of streams and the shores 

 to high-water mark. 



" Navigable streams and the shores to ordinary high-water mark are 

 held by the State in trust for the public." {Heckman vs. Street, 99 Cal. 

 309-10.) 



On the same principle, the State holds all highways, streets, etc., in 

 trust for the people. 



A trustee is a party in interest, and may maintain an action for an 

 infraction of the rights of a beneficiary or damage to the property held 

 in trust. (Section 369, Code of Civil Procedure; Winters vs. Rush, 34 

 Cal. 136; Tyler vs. Houghton, 25 Cal. 29; West vs. Crawford, 80 Cal. 19; 

 Walker vs. McCusker, 71 Cal. 594; Anson vs. Townsend, 73 Cal. 419.) 



Second — The owner of the soil has a special .property in fish while in 

 the water which flows over his land, and damage to or deprivation of 

 that property right would be a nuisance, and, if affecting a number of 

 persons, would constitute a public nuisance. 



In order to constitute a public nuisance, it is not necessary to affect 

 every person within the State, but any considerable number of persons. 



Section 3480 of the Civil Code defines a public nuisance as one which 

 affects an entire community — a neighborhood or any considerable num- 

 ber of persons. 



In this case counsel concede that the acts complained of affect all 

 owners of the soil along the stream, and as the complaint alleges the 

 acts to be a public nuisance, and the complaint must be taken as true 

 on this motion, it necessarily follows that a considerable number of per- 

 sons are affected. 



If the owners along the stream have a special property in the fish 

 while in the water on their land, then the acts of the defendant con- 



