REPORT OF THE COMMISSIONERS OF FISHERIES, GAME AND FORESTS. 223 



reach their natural spawning grounds from which they had been cut off by the' 

 erection of dams for power purposes. Long before the State of New York had a 

 Fisheries Commission to make a report to the Legislature, the law-making body had 

 enacted, viz: in 1801, "that no dam should be erected on streams flowing into Lakes 

 Ontario, Erie or Champlain, to prevent salmon from following their usual course up 

 said streams, and when dams were erected they should be provided with fishways to 

 enable fish to pass over the obstructions." 



In the first report of the Fisheries Commission of the State of New York the 

 subject of fishways is treated seriously, and the Commissioners say, " If any State 

 erects an impassable dam across the stream between their spawning beds and their 

 winter resorts, they (the fish) will disappear utterly." This refers to salmon chiefly. 

 The New York Commissioners were also in doubt about the legal status of fishways 

 in dams because of an adverse decision by the Courts of Pennsylvania construing a 

 statute in that State requiring dam owners to erect fish passes in their dams. 



The Fish Commissioners of Massachusetts made a case against the owners of a 

 dam across the Connecticut river and it was carried through the State Courts and to 

 the United States Supreme Court and the following is an extract from the decision 

 of that Court : 



Rivers, though not navigable even for boats or rafts, and even smaller streams of water, 

 may be and often are regarded as public rights, subject to legislative control, as the means for 

 creating power for operating mills and machinery or as a source for furnishing a valuable supply 

 of fish suitable for food and sustenance. Such water-power is everywhere regarded as a public 

 right, and fisheries of the kind, even in waters not navigable, are also so far public rights that 

 the Legislature of the State may ordain and establish regulations to prevent obstructions to the 

 passage of fish, and to promote the usual and uninterrupted enjoyment of the right by the 

 riparian owners. 



Proprietors of the kind, if they own both banks of the. water-course and the whole soil 

 over which the water of the stream flows, may erect dams extending from bank to bank, to 

 create power to operate mills and machinery, subject to certain limitations and conditions, and 

 may also claim the exclusive right of fishery within their territorial limits, subject to such regula- 

 tions as the Legislature may, from time to time, ordain and establish. Persons owning the whole 

 of the soil constituting the bed and banks of the stream, are entitled to the whole use and 

 profits of the water opposite their land, whether the water is used as power to operate mills and 

 machinery or as a fishery, subject to the implied condition that they shall so use their own right 

 as not to injure the concomitant right of another riparian owner, and to such regulations as the 

 Legislature of the State shall prescribe. 



Evidently the right of fishery, as well as the right to use the water of a stream for mill 

 purposes, is the subject of private ownership, and when held by good title, the one as much as 

 the other is a vested right, and both alike are entitled to public protection, and are subject, in a 

 certain sense, to legislative regulation and control. Difficulties, in every case, attend the proper 

 adjustment of such rights, as the complete enjoyment of the one may interfere with the corre- 

 sponding enjoyment of the other, but the presumption is, in construing any regulation upon the 



