172 LHE SHAD STREAMS OF PENNSYLVANIA. 


persons and communities along said river, the act provided that the 
several companies owning or interested in dams on the Susquehanna, 
or on the North or West branches of the same, between tidewater and 
Wilkes-Barre on the West Branch, should, within six months from the 
passage of the act, erect such undergates, sluices, chutes or other devices 
in all dams as would permit the free passage of shad, salmon and other 
fish up said streams. 
The second section provided that if the owners of said dams neglected 
or refused to construct sluices as would allow the free passage of fish 
up said river within six months after the passage of the act, they should 
be liable to a fine of two hundred dollars, to be recovered as debts of 
like amount are recoverable by law. 
Notwithstanding the alleged unconstitutionality of this act by reason 
of interfering with vested rights, the canal company, in return for some 
desirable legislation by which they were authorized to raise their feeder 
dam not exceeding three feet, consented to comply with its provisions, 
and accordingly constructed a fishway from a plan chiefly devised by 
the superintendent of that company, with some modifications suggested 
by the fish commissioner of the state appointed under the act of 1866. 
This fishway was placed about one-fourth of a mile from the York county 
shore. At this place a section forty feet long was taken from the dam, 
on which a-new sub-dam was erected, so that its highest elevation would 
about equal the level of the water below the dam. The lower slope of 
the sub-dam was placed at an inclination of one in fifteen, and the sides 
of the aperture in the main dam were dentated or framed in a series of 
offsets so as to promote the formation of eddies in the current passing 
over the sub-dam. Shad and other fish in their endeavors to pass the 
dam were expected to be under the influence of gravity in opposite di- 
rections, the lower water seeking to obtain its level, the top of the sub- 
dam, the other water rushing through the aperture would meet and 
drive it back with a force considerably impeded by the cushion, so to 
speak, of lower water. The fish were expected to find this opening 
through which they would endeavor to pass up. If they failed in the 
first few trials they would naturally seek the eddies in the recesses at 
the sides of the sluices where they would gather strength for a new trial. 
The weak point in this structure was that the fish met the greatest 
resistance at the top where they were expected to enter the dam and 
when they were in their most exhausted condition. The fishway failing 
to answer its purpose it was abandoned and a new one constructed a 
few years later at a different point in the dam. 
The act of 1866, so far as the canal company was concerned, was of 
the nature of a contract; certain privileges were granted in return for 
certain duties, and until both parties acted the contract was incomplete. 
It was required that “a suitable way for the free passage of fish” should 
be constructed, and as the contrivance described was inefficient for that 
