FOREST, FISH AND GAME COMMISSIONER. 403 



property without making compensation therefor; and upon the further 

 ground that the dam in question having been maintained for upward 

 of seventy-five years the owners thereof had acquired an easement by 

 prescription to continue to maintain it in the same manner. 



This proceeding was the pioneer case testing the Constitutionality of 

 the statute and the power of the Commissioner thereunder, and the facts 

 in the case were most unfavorable to the contention of the State and per- 

 mitted the raising of almost every legal question which could be litigated 

 under the order in question. 



Mr. Justice Lyon, before whom the application was heard, upheld the 

 constitutionality of the statute and the power of the Commissioner to 

 make the order thereunder, and slightly modified the terms of the order as 

 to the period of time during which the fishway should be maintained by 

 the petitioner. 



Appeal was taken to the Appellate Division, Third Department, and 

 this court affirmed the order appealed from upon the opinion of Mr. Justice 

 Lyon, in which it was held that the rights of the Deposit Electric Company 

 to maintain its dam had at all times been subject to the rights of the public. 

 We quote the following from the opinion of Mr. Justice Lyon: 



' The people of the State have also as an easement in this stream 

 the right to have fish inhabit its waters and freely pass to their spawning 

 beds and multiply; and the right to take and use such fish for food, subject 

 to such regulations as the Legislature may prescribe, and no riparian pro- 

 prietor upon the stream has the right to obstruct the free passage of fish 

 up the stream to the detriment of other riparian proprietors, or of the public. 



" Not only has the Legislature the right to protect and regulate the 

 easements of the right of an unobstructed navigation of the streams of the 

 State, and of the right of an unobstructed passage of fish through such waters, 

 but it has also the right to prohibit the taking of fish therefrom, and even 

 from private waters within the State, and the discharge into the streams 

 of substances harmful to fish, and such power has been frequently exer- 

 cised, and such exercise repeatedly held to be constitutional and valid." 



This decision holding that fish running at large are ferae naturae, and 

 while in their natural element unconfined are public property and that no 

 person can acquire property therein except by lawfully taking and reducing 



