., 1888.] 



FOREST AND STREAM 



191 



mill to go into bujsinress ui'h Mr. Appleton, now of tlio firm ' 

 of Appli-ton ^Litchfield. 304 Washington street, Boston; 

 who have tin- bot it- in charge and who have sent n- a i ota- 

 logue of ISO volumes. The catalogue will be furnished on 

 application. Many <>f the works wire rebound by Mr. 

 Prom/, and the collection is a good one, containing jome 

 r.-in -liurik-. aii Sir. Prouty's.roos and Bahing tackle will 

 oIko be on sale. W^cearnusfly commend the sole to Eho allcn- 

 lion of our readers, 



grant bv tho State. The second involves a question probably 

 peculiar to this plaintiff in error, and one which th.- court, I 

 am inclined to think, upon examination, will fiivl is sin' 

 generis. 



$is!i culture. 



THE FOX RIVER FISHWAY CASE. 



IN tho Supreme Court of Illinois. Northern Grand Division, 

 March term, A. D. i v st. 



Wu.i.i.w I'ahkek, (o Dm 



- ( 'iiv.it it. Court of 

 The People or ths state Of Illinois. \ /,v,,,/„// GQuMy, 



ST-vrl-tMENT OF THE &ABH. 



This-, iliy oommenced in October, t&ffl, be- 



fore a Justice of theTeace in Kendall comity, by criminal 

 complaint and warrant against the plaintin in error for a 

 violation Of Bection l of theact of the General Assembly of 

 tin- State, approved March •.•;.. 1-; I us amended by the act of 

 h regard to fishwavs. A f amended the section 

 is as follows: "Section 1. That it Bhallbetbe duty of any 

 a or persons who now own or may hereaftw erect any 

 Sam or Other Obstruction across any of the rivers, creeks, 

 streams, ponds, lakes, sloughs, baron's, or other watercourses 

 wiihin the- State, to pin tabb- lishwnys. in <mlci 



that the free passage of tish up or down tlirou; 

 may not be obstructed. And any person failing to provide 

 -ml, Bshways ahall be subject to a line not exceeding SSS0O per 

 year, to be recovered before any justice of tin- peace in the 

 county or counties where such dam or obstruction may be 

 placed: Provided, that tins act shall not apply to streams. 

 ponds, lakes, sloughs or bayous, that maj be obstructed or 

 closed by work or works done under the act of July I. 1871, 

 entitled, 'An act to provide for the construction and protec- 

 tion of drains ditches, levees and other works now in force 

 or : " !•■■ here Liter passed/ " 



The I r just iee resulted in the conviction of the 



plaintilt in error, who appealed to the Circuit Court. There 

 an agreed case was made and the cause submitted to the 

 couit without a jury. As this was the first case in this State 

 under the act in question, without argument the court mi- 

 dl red B pro forma judgm en a ;.ih:-i : !i • •!. :■ aidant an', litu 1 1 

 linn s::\ tfpoi validity of the 



statute abovi quoted, the plaintiff in error prosecutes his writ 

 i,i this court. 



in.- l.i.i- agreed upon . 



The piainti'ii in error is the owner of realty on both sides of 

 Fas River, In Oswego, Kendal! county, where the onlydam 

 across the river in that township exists, and has been" -inc.: 

 Ms purchase, oi it, August 1. 1871. The power created by the 

 dam is asDd b, him to propel the machinery of a flouring 

 null, on the one side of the stream, and a furniture factcr 

 on the Other. Tli,- dam has a .-ix-mot head, and in fact as is 

 agreed, obstructs the free passage of Gsh up and down 

 through the stream :ii. that point, and ha.- done mi since the 

 act in question loo's effect No Bnitable fishwas has been 

 placed in the dam to afford the free passage of BsL and said 

 si ream is aaturallj i be bom- of what is known as -game fish" 

 and "food ashes." 



It does not appeal' in the case that the erection of a suitable 



tin: pi, iter created bv it tor manufacturing purposes. 

 The contrary is th ■ fact, The nshwav. if properh put in. 

 will stun- then instead of weaken the dam. while its use in 



only dnring the spawning season In the spring and during the 

 period when the llsh seek deep water for protection from the 

 winter's cold, at both which s - i stage of high 



in the river Tie- plan approved to, tie Irish Cora- 

 iners provides for a gate to shut olT water when not 

 needed. It, "further appears (and noon the-..- facts the plaintiff 

 in error relies for his defense, and t.. render nugatory the act 

 in question that the dam was erected in 1886, while the laud 

 belonged to the United States, by his remote grantor, who 

 acquired the government title at the land sale- in 1843 to the 



land on each side of the river abutting i i tie- dam: that the 



dam b uptedly mainJ lined since its erection, 



the dam' wa- raised 'io its prc.-c':i! height", at which' it has since 

 i a maintained, ft appeal's though thai the cost of a* suit- 

 able dshwaj would be somewhere about SO0O; that Pox River 

 is not within the proviso ol theact above quoted, nor within 

 IC-nd ■ stream.in fact, navigable, norhas it 



r the stream is navi- 

 h. should that- fact bo 

 deemed material, the court will doubt less take notice that, it 

 is such above the dam in question, from M.-llc-ni-v, in Mo- 

 Henrv con:.' n ' I think beyond, the north line of 



the State, though the use oi it there as such is mainly coa- 



whleli | will analyze lii.-ther a 



These were all the facte a] 

 substance. Othei facts whicj 



will be referred to in th- argument. 



Plaintiff in .-no veral matters as error, bul 



in the argument, his coun- : - propositions only: 



I ii-t ':. ■ .'do. th,- onlyright 



.-. bo riparian proprietors, and the 



lir.ll 



th-- rig 

 t hi-, da i 

 out tho 



acquired 



land, they took their 



of prop, riv subject to 



r of plaintiff in ciTor in 



,--..! i 



iih- 



, Rfc 



jr. in this State, 

 ii. in which the 

 ity. have no ru. 

 -hat tlie contest 



Kit true that: 

 as anon-navigab 

 in their sovereic 

 aU'eel l,v Icgi-lit 

 held to he narrow 

 other riparian proprietors above his dair 

 vote right merely; and that he has acqi 

 against them, a righi to lnamtaiuhis da 

 the State in us sovereign capacitv has t 

 thai he l.mld and maintain therein a li>l 

 mit the free passage of fish up and dowi 

 point; and that the Government titles oi 

 proprietors above his dam were and arc 

 ner to the rights of his remote grantor 

 tie- public domain oi the United States.' 



Kirsi. fhe latterparl of the above qt 

 tie disposed of. and upon the authority o 

 Wilcox v. McGeee, 12 111. SSI ; Haddon v. 



In the firsl Case cited, it was expre 

 from the Government conveys ouly the 

 state, and is wholly irrespective 

 and dams, put by the settler ay 



as a matter of pri- 

 •ed by pi,-erip!,on 



to the extent, that 

 power to require 



-ay suitable to per- 

 the stream at that 

 the several riparian 

 lUhject in any mar. 

 u a dam built upon 



tin 



lent. 



111.-! 



ICtl 



III ii 



It 



nlv that 



meut is made to show 

 vested as against other 

 ruht- have been thcreb' 

 Indeed it could not. sen 

 of the State to exercise Its police | 

 any period of time, however long. 

 Citizen byway of prescription aga 

 Legislature should see fit to comn 

 scriiition amounts merely to the oi 

 If, therefore, as I shall endeavor I 

 state will never be presumed to h. 

 power to grant awaj its rights oi 



not possibly be ]>i-'-M-rib,-d tor bv t! 



It is well settled that the ,l...-tvii 

 apply at all to any servitude not ofc 

 the right < 

 !88,4o8, 53 

 hold that < 



in lighl and air. and wa 

 the earth, is incompatib 

 try comparatively newl- 



The doctrine of prcsci 



th- laud whllethe title Is to 

 aws ih.it other purchasers 



ed States. 



el impliedly admits that the 

 . and at it- present height 

 live rights to its owner 'as 

 caoacitv. Tho whole argu- 

 •hts have become 

 us. where Bshing 



ich 



pa rum 



irttulcd. 



ly be contended that tl 



in Id be availei 

 st that powei 



sumption of a lost, £ 

 establish further 01 

 ,e. and in fact has m 



Th 



commonly called game, is in the owner of the land where the 

 latter may happen to be. 



The riciit. of ttshing upon one's own land in natural streams 

 is otthe same degree fn this country as the right of hunting 

 orkflling or in anymanner redudng into ,„,---- -ion .-.ame. 

 The ownership of all ttshandgame which are !/ee ornot 

 domesticated within the Siate. is to the State as the sovereign 

 power. It-is because of ttiis mainly n not wholly, that (he 

 Bame power existB as to each in the State, to pass t&wsregii- 

 lating the taking of the same by the oitizen, into his possea- 

 jion and mr his own use, and so tnruiug the same into private 

 property, or providing for their increate. 



No extended argument or citation Of authorities to susl <•<■ 



this pn,|,o-it ion i- d-d. \ sincle illu-l ration will suffice 



;.:•-: Suppose a fts.il in Pos Ri tip the 



stream ov.-rth- lands .-acb <>f A. S. & I - Does i1 b lome ths 

 property of either while upon his | : ,„d ■ Certainly not, unless 



. The People, 9i il 



. in N. V. 10, thoroughly approved io the 



re expressly put tipou the samefootrng as 



e can be upon princrple no distinction 

 the rights of the i itizeu or thu powi i 6l 

 ir argumi d ■• n (rom the ati- 



the different sort, ol fishnries cdnilicting 



i. All lb 



' ■ 

 tizeu? under gjvi n I iivum-fair.rs. than as 

 ner the owner-hip and authority ol the 

 •iplurc 

 Lo'i-ship 01 I 



pre-cript: I - ■ Bsi the 



Ii loll-lv 



o i he ii' e passasi r»J fish amount 



.;,le -,, tht ' bion the 



= called the police ■ 



of fish in the natural streains of the State 

 peoph- or an, portion ,-i them, no ptv- 



,e set mi by one u lei tn.'i l.t.oi:- e. u oh- 1 1 uc- 



n a-j-im-t the will of the Legislature ex- 



irmsrequiM-d by its pi'ganic lawi 



- d and w cupicd land m this Si 



•e the enactment of the Srst actot'oui 



it unlawful to kill prairie chickens during 



the year, might as well ' Unwed '•• set 



prosecution tor violating the act, that be 

 3Tiod of twenty years killed every bud of 

 ia •! come upon his land during the pro- 

 80 had a prescript" e right to - ■■: ' he law 



with the eircunii 



ettledand not fu 

 t-iiui includes as 



ic tiling causing the 

 squisite time bv the 

 105, 132, r.s. Neither 

 land when he cannot 

 igs: lb. 156. Neither 

 ii jury is done and be- 

 o one will claim of 

 ■ent. like the floivatte 

 e vested by the lapse 

 Hut what isclail I 



resist tie- acouircinent liv legal proceed! 

 does the time begin to run until th, 



c is apparent: ib. 128, 128, 355. — 1 



couise that servitudes which are appa 

 of water caused by a dam cannot becon 

 of time so that, they can lie prescribed foi 

 here, is wholly a different matter. 



It i-not pretended that the plaintiff in error has acquired 

 as .m easement any of the rights of fishing which other 

 riparian proprietors may have upon the stream as appurte 

 nam to their land. It is rather that he has acquired the right- 

 by tlie uninterrupted maintenance of the dam in question for 

 so long a period, to prevent the iree passage of fish up the 

 stream in the land.- owned by suchother riparian proprietors, 

 where they have the common law right of fishery. 



\\ hen ; In.-se dams were nrst erected, and indeed until within 

 afew years, their effect upon the tish and fisheries in and 

 along the stream, was little understood. It was only until a 

 very recent period that it became known that the spawning 

 beds of the most valuable tish which naturally frequent tlie 

 si ream in oiiestioii. which largely supply tiiis stream, were 

 allowed lands along the Illinois and Miss 



it li the other dai 



id thai these mill da 



i.,, the depopulate 



Us be fairly claimed tin 



ft In 



aterial 



the stream, as'an obstruction to the free 

 depletion of tish was not so obvious a 

 building mid maintaining the dam, as 

 which bears the semblance even of an eas 

 in favor of its owners, as against other 

 even, who have come to be injuriously 



ilfeeied In 

 s. No on, 



it t 



If it be so claimed the answer is obvious. iNo one can pre- 

 scribe for a public nuisance: lb. fail. 



The appropriation to one's self of public property which 

 should be common to all is a yie/'/e-.s-/,-, and a public nui-ance. 

 Wood on Nuisances. S l-l. Dunning v. The City of Aurora, in 



The 



the I 



if I, 



nills likesa 



lei. 



'j%?,ssps 



Davis v. WtosIOW, 51 

 Kiown, Hi. 238, 



From these eases it appears tliat a . 

 stream which violates that ■•golden rule of the la 

 Glen, i -Ion. -. V c. ::•:,: cited by bio. Hopkins), "sic ntccc 

 tuo hi ..-oi nii.iiniii .'o. ./o..." especially when t affects a large 

 number of the citizens of a State, constitutes a public nui- 

 sance. 



I pon this ground it has heeii h.-ld in tin- Slale that one of 

 the co-owners of water power, created by a dam having the 

 prior right oi us- even by express contract. i-_ restricted to a 



i •:. W&j OB Co., 91 111 . 230. And where a slaughter liouv- was 

 built ina. place remote from buildings, and the business there 

 carried on for twenty years, it was held thai thi&did uot au- 

 thorissethe owner to continue it, after houses had been built and 

 roads opened ill the neighborhood. Il- had become a nuisance, 

 and no length of time could legitimate it, or enable a parts to 

 prescribe f or its continuance. Commonwealth v. Upton, It 



!:i» of the State against legislative interference 

 :■ r the power of eminent domain and upon compen- 



i'l:..t thractahov loted iiniiairs the obligation 



oi i!..-.-oii;.aci contained in the private act granted to Michael They are 

 C. Parker Ui IS".;, i.v the it.-,,, ml \--.-i.il,|y of tin's State, and 1 

 isSOl ijd as to him mid liismanle.es. iucliid'ing I h..la.-i gram .-,., ■ -.. 

 the plaintiff in error, ao provision having < a made Cor com I the water 



Sensatiou for taking- the same, under the power or eminent thpsotl,a 

 ..main in lie- Ki-hway act. ia about ii 



The determination of the lir.-l proposition will, as claimed tlieq ti 



by plaintiff in error, be decisive-as to the lights of dam-own-, their imp 



existence and continuously The ow! 



maintained tor more than u i - oi anv I the riparii 



This dam had become a public nuisance in fact. See I'oim 

 II. subdivision fourth. 



But the claim is of the prescriptive right to obstruct the free 

 passage of fish up and clown this .-.I ream by the dam in quo- 

 lion. 



Who owns the Ash; To whom do to they belong? 



,o these questions one need nol gofartofina. 



th. 



in 



it. 



llp.il 



i-all tie- distinction there 



and ii in no way affects tho legal status of the tish, 



. ownership, or the power of preventing 



>per dc-i ruction, and Bo provide for tin ir increase. 



n ship of the lish in natural streams is no more in 

 i owners than ilmt- of birds and o'tliev wild animate 



!..--J,!.it.i.-c iinikii 

 IV .■■ ; -V"".l-.'f. ■]•':, t 



Third It follows, thirefore. thai the Stale, assuob, has an 

 interest ineverj natural stream wrfiton its limits tm- tho free 



passage of its propertv, the llsh, to lie sann. extent and for 



tin- same reason thai it hi s a like interest in all of it-- territory 



wla-i-e ii- pi,. pert , , gtiiiie. resort.-. 



Hence, the case" of Woolever v. Stewart, 36 Ohio si 146, 

 cited by counsel, ought not to be followed b\ Un- i-mhi. 



II. 

 Does the lish way law a I. ..ye quoted imp -n' f It- ..bli- 

 the contract between i he Stai, and Michael '.' Parker, and 



piaint.iff in error, as his remote a--i:i ..- clain.i d to |,.i< ,- been 



made by tin- private act of 18OT reft rrcd toabov . uooompen- 

 ig made by the Stat i ■ being 



ate act, in question will be found in full in (she ah 

 ids oiici-v must be answered in the i 



positions can be dctel inue-ii iB ■ 



node 



Tie- 



■ii the following proposi 



the people. 



First. Nothing . rante. 



ct that baa I" 



-lll.s 



al la\ 



■d to be -lone in i.bc pri- 



manner atfei tod by the 



J granted bj the pri- 



o grant to 



I oi b\ the plaiutill in 



-■ oi the 



That v 

 vateact, if valid as within the power i 

 ■ named, maj stfll be availe 

 error to, I reasonable extent ai l.-asi. - 

 gi-antee. 



Third. The private act in question. In so far a- air. thin; is 



. ; anted bj it. i> itself u stitutional and void, so ■ 



tewed no rights whatever upon Mj'ahael V. i irker, ot tlie 

 plaintiff in error i 



Fourth. The genera] law in lotion is fully authorized by 



that attribute of aovereigntj residing miin- Htati called the 



: aud- makes ft rule ..i oonduct obligatory upon 



all citizens and property ownei's in i In- ^t.-u.-, w ho c c wuh- 



Fifth. i-:v.-ii if the private act could bi otherwise construed, 



it niusi not he in such maun--: as to conflict With the exercise 

 of the police power whenorei the Degislarure shall so will, 

 sin.-,- ii ;- heyond the power oi oni general assembly, by grunt 



to di.'1-..-ir a s,ib.-ei|iifnt L. -a! .-:— -ii.I.K frorfl c.-..-i- 



power to the fullest extent; neither can the citizen acquire 

 right to snob exercise "bj any-protended 



l-ii--:. Nothing granted or authorized I tbed ai.ii theprivate 

 act in question tnat bus bi i u dom . ia hi anj m -mi,, r atle i • i 



or impaired by the .-uli-.-q.,,-.;; jeneral law under cCinsidcJa- 



The private act was approved, and by its It rinstook effect 

 Keb. 10,1857. Its title tvas Uoriite Miehael C 



Parker to raise a mi ustruet .. race." 



In sectiona3 of Article UI. oft 



which maj be pas 



t'ill'e!" 



No criticism evei 

 itself contains moi 



it. I cite Die i>i.n 

 be cotl-!l -ii. d as -i I 

 as wdl as wh u i- 

 llu- furl her in mv 



Alter the anactii 



follows: 

 "i'lial il shall lie la 



II lie mndi noon the I ii |.- or i IntL I he act. 

 an .me subject with what i- g.i mane to 

 i niorebj to show that the act cannot 



agby implication whtil imnot expr d, 



eutbraoed in the title, I may allude to 



r point. 



lausc. tin- lirst section oi the act- is as 



for Michael C, Parker or for bi? iieir- . r 



y may 



aril sold 



II ..II, 



lilies. 



. Hivi 



witii such abutments and -i:i-r, •,.(,, in,,.- . 

 successful eariying on •■; in. Business ..i en- ... :- ■ -.w'-miiis. or 

 other mauuffleturrag p. up..-.--: and it stmll »lso be m«- 

 ful for htm or clieiu. for the purpose 01 using the water 

 . i ,i-i a. i ,, • ,-i suiiHble cii- 



paell.v . .,11 the VM-t -i.le el .-in,' i o. I 1- sail 'I ii. . ••,- ,i. ( I. I., 



aa\- point or- point.- on the wesl .-:■:, ■ i I-', > \ Kivor, ik-i \u-en s:* i-l lUuh 

 an,! i lie puuh.- t,,-.,:-.. „. r..-.- i 



»uoh ddia sliall not, iit any bm : :.t •■- loiuiei-- 



fere null me use of the Mater n.iui i- . t .I., inill .iion iieM ^li ,m- ..el 



ikll.l tat.,.1 wliieliwii-loriiierlv , , 

 all. I BltU ll 



' -Allllil isiinthel-l r- 



-. ..,.-,:.,..,. ,,.-... tiling llOut. 



IU ' and I In. d .-■ ■ 



eminent domain shall be exercised and i he amouni ot compen 

 i-at.ion to riparian owners above, whose land 



by the raising of the .lam. and of ..wtiei-s of [and 



who-,- !;, n ,|, ,na\ be tak. i: i.-,, i',,- , . . 



