224 REPORT OF THE COMMISSIONERS OF 



subject, that the framers of the regulation did not intend to allow either party to disregard the 

 rule that he should use his own property as not to injure the property of the owner of the 

 other right. 



Ownership of the banks and bed of the stream, as before remarked, gives to the proprietor 

 the exclusive right of fishery opposite his land, as well as the right to use the water to create 

 power to operate mills, but neither the one nor the other right, nor both combined, confer any 

 right to erect obstructions in the river to prevent the free passage of fish up and down the river 

 at their accustomed seasons, as such obstructions would impair and ultimately destroy all such 

 rights owned by other proprietors both above and below the obstruction on the same stream. 

 Fish rights below a dam, constructed without passageways for the fish, are liable to be injured 

 by such a structure as well as those owned above the dam, as the migatory fish, if they cannot 

 ascend to the headwaters of the stream at their accustomed seasons, will soon cease to frequent 

 the stream at all, or in greatly diminished numbers. 



In 1892, chapter 488 of the Laws of that year, the State of New York passed a 



fishway law which was amended by chapter 974 of the Laws of 1895 and added to by 



chapter 408 of the Laws of 1898, and now reads as follows in the Fisheries, Game 



and Forest Law : 



ARTICLE XI. 



FISHWAYS. 



Section 260. Commissioners to be notified of construction of dam. 



261. Authority of commissioners to direct fishways. 



262. Owner to comply with direction of commissioners. 



263. Commissioners to recover for construction and penalty. 



Section 260. Commissioners to be notified of construction of dam. — No dam shall be con- 

 structed by the state or any person upon any stream more than six miles in length inhabited by 

 fish protected by this act, until the person about to construct, or the officers having charge of 

 the construction of the same shall give written notice to the commissioners of such intention, 

 together with a statement of the name, length and location of said stream, and the size and 

 general description of such dam, and the purposes for which it is to be erected, together with a 

 diagram thereof. 



Section 261. Authority of commissioners to direct fishways. — The commissioners are author- 

 ized in such cases to direct the construction of suitable fishways by an entry on their minutes 

 and service of a copy of such order on the person constructing or officers having charge of the 

 construction of such dam, and the person so constructing shall at his own expense, or the 

 officers having charge of the construction shall, out of the funds appropriated for the construction 

 of such dam comply with such directions, subject, on application on notice as on a motion, to 

 the right of the supreme court to affirm, reverse, modify or alter such directions. 



Section 262. Owners to comply with directions of cotmnissioners. — Such fishways shall be 

 properly maintained by the owner or persons in possession of such dam, and shall be subject to 

 examination and inspection on behalf of the commissioners, who may direct such repairs and 

 alterations as they may deem necessary, subject to the order of the supreme court, as in case 

 of construction. 



Section 263. Commissioners to recover for construction and pe?ialty. — In case of failure, 

 refusal or neglect on the part of any person to comply with the directions of the commissioners 

 as to building and repairing fishways, the commissioners may cause such fishways to be con- 

 structed or repaired, and the expense thereof may be recovered by the commissioners in an 



