FOREST AND STREAM. 



265 



CANADIAN FISHING LEASES. 



THE PREROGATIVES OP LESSEES. 



WE have received from D. G. Smith, Esq., of Chat- 

 ham, N. B., Canada, the following resume of the 

 case between the lessee of the Southwest Miramichi salmon 

 angling privileges and the anglers who took the liberty of 

 fishing within its limits against his wishes and in defiance 

 of his guardians. It would have been forwarded more 

 promptly but for an accident which happened to the writer 

 on the 10th instant, and through which he is still reposing 

 in splints .— 



"The Southwest Miramichi river, between Price's Bend 

 and the headwaters, better known as the "Burnt Hill" dis- 

 trict has been leased by the Dominion Government to 

 Chris. Robertson, Esq., of St. John, for fly-fishing for sal- 

 mon etc. Mr. Robertson has had Messrs. Robert Orr, of 

 Fredericton, John Dyer, of Boston, and other anglers as- 

 sociated with him in carrying the responsibilities and en- 

 joying the privileges of the lease. 



The lease, which like all others for salmon angling in 

 Canada was issued by the Minister of Marine and Fisher- 

 ies, bears date the 31st of October, 1873, and is to continue 

 in force nine years from the 1st of January, 1874, to 31st 

 December, 1882. The rental is to be paid annually in ad- 

 vance, and the Lessee is bound to conform to all the pro- 

 visions of the fishery laws of Canada, and observe all the 

 regulations of the Department oisting at the time the 

 lease was made, or to be issued thereafter by the Depart- 

 ment. The privilege of fly-fishing in front of their own 

 lands is reserved to actual settlers, and the Lessee is bound 

 to establish and maintain efficient private guardianship 

 upon the stream throughout each season to the satisfaction 

 of the Department, which reserves to itself the right of 

 four rods. 



Before Mr. Robertson had obtained the lease a number 

 of Fredericton gentlemen, including His Honor Judge 

 Steadman, J. H. Phair, and Mr. Hanson, Secretary to the 

 Receiver General, had been frequenters of the Burnt Hill 

 pools, and they determined that t] ey would continue to 

 fish them, lease or no lease. They carried out their in- 

 tention, and after they had trespassed several times, in 

 spite of wardens and overseers, Mr. Robertson determined 

 to bring them to book. He accordingly brought an action 

 for trespass late in the season of 1875 against Messrs. 

 Steadman and Phair, they at the same time consenting to 

 the proceedings, in order to have the question involved 

 tested. The case of the plaintiff, (Robertson) after quoting 

 the lease, which I have sufficiently outlined above, was 

 stated as follows: — 



'Under his lease the plaintiff has claimed to be in the 

 occupation of the said fishery station, and the right to pre- 

 vent parties fishing therein contrary to the act under which 

 it was granted. The defendants being British subjects 

 during we year 1875, and during the season in which fly 

 surface fishing for salmon was lawful, entered upon a por- 

 tion of that part of said river so leased to the plaintiff, and 

 fished for and caught salmon in the manner known as sur- 

 face fly-fishing, against the will of the plaintiff and with- 

 out his consent, which is the alleged trespass.' 



'That part of the river in which the alleged trespass was 

 committed is situated above the ebb and flow of the tide 

 (as in fact is the whole of that part of the river so leased to 

 the plaintiff) and is navigable for canoes and small boats to 

 pass and repass thereon, and has been used since the earli- 

 est settlement of the country by the public as a highway 

 for such canoes and small boats, and to float down loose 

 timber and logs to market in very large quantities.' 



'The lands bordering on both sides of the said part of 

 the river in which the alleged trespass was committed were 

 granted by the Crown to the New Brunswick and Nova 

 tScotia Land Company, who have conveyed a portion there- 

 of to different persons. The bed of the river was, how- 

 ever, in the grant to the New Brunswick and Nova Scotia 

 Land Company, expressly excepted therefrom and reserved. 

 For the purpose of this case neither of the parties claim as 

 Riparian owners.' 



QUESTION. 



'The question for the consideration of the Court is: "Has 

 the Dominion Government power under the British North 

 American Act 1867 and the Fisheries Act power to grant 

 the lease in question? If the Court are of the opinion that 

 they have such power, judgment to be given for the 

 plaintiff for $50 damages and costs. If the Court are of 

 the opinion that no such power is given, judgment to be 

 given for the defendants with costs.'" 



"In December last the defendants put in their first plea, 

 in which they set forth that the part of the river where the 

 trespass was claimed to have been made, having been al- 

 ways a public and common river navigable for canoes, etc., 

 and used for the driving thereon of logs, timber, etc., 

 every subject of the realm had and ought to have the lib- 

 erty and privilege of flaking therein at all lawful times and 

 seasons; that acting upon the common right they, the de- 

 fendants, did enter, into and upon the part of the river 

 leased to the plaintiff, and did catch salmon and other fish 

 in the manner known as fly surface fishing, as it was law- 

 ful for them to do; that at the time the alleged trespass was 

 committed the plaintiff had no right of occupation in that 

 part of the river, which was not a fishing station at all, and 

 as set forth in plaintiff's declaration. 



"In his replication the plaintiff set forth, that while ad- 

 mitting he (plaintiff) was the lessee and thus in possession, 

 defendants did not show any justification for their enter- 

 ing upon and fishing said river; the assertion and fact that 

 the river is a public one for the floating down of timber, 

 passing and repassing of canoes, etc., is no answer to the 

 cause of action; the Dominion Government have the right 

 to decla-e the fishing for salmon in Canada exclusive ; the 

 Series Act of Canada is not ultra vim, and there is iiq 



right in any subject to fish for salmon in contravention or 

 violation of an act of Parliament. 



"To the replication the defendants pleaded that a river 

 navigable in the manner set forth is a navigable river in 

 which the right of fishing exists in the same manner as if 

 the tide ebbed and flowed therein, and therefore the right 

 to fish therein is common to all subjects. The defend- 

 ants, in conclusion, relied, among other things, in the fol- 

 lowing in the cause: The Government of Canada, or the 

 Minister of Marine and Fisheries, has no right to declare a 

 public navigable river in New Brunswick to be a Fishing 

 Station; no right to lease such river or any part thereof to 

 one to the exclusion of the rest of Her Majesty's subjects; 

 no right to grant a right of fishing, either in a public nav- 

 igable river or a private river in New Brunswick; no right 

 to declare salmon or other fishing in such rivers exclusive; 

 the Dominion Fisheries Act is prolanto ultra mm; a river 

 cannot be a fishing station. 



THE ARGUMENTS AND" JUDGMENT. 



"The case was argued in Trinity Term last by Chas. W. 

 Weldon, Esq., Queen's Counsel, for the plaintiff, and by 

 E.L. Wttmore, Esq., (Mayor of Fredericton) for the de- 

 fendants. The latter relied principally upon the point that 

 under the ninety-second section of the British North Amer- 

 can Act general power was given to the Provincial or Local 

 Legislature over property and civil rights within the re- 

 spective provinces, and that fly-fishing in public rivers such 

 as the Southwest Miramichi, being a civil right within the 

 Province of New Brunswick, it could not be interfered 

 with by legislation cf the Dominion Parliament under the 

 ninety-first section of the same act, which gives the Do- 

 minion Parliament the exclusive power of legislation in 

 regard to inland fisheries. Mr.,VXetmore argued the de- 

 fendant's case ably, and Mr. Weldon, in his argument for 

 the plaintiff, met the points of opposing counsel, going 

 into the subject at great length, and with a thoroughness 

 that was exhaustive. 



"Our Supreme Court is composed of five judges, viz.: 

 Hon. John C. Allen, Chief Justice of the Province; Judges 

 Weldon, Fisher, Wetmore and Duff, and these gentlemen 

 (with exception of Judge Wetmore, who did not act on ac- 

 count of being related to one of the parties to the suit) 

 gave the judgment of the Court in Michaelmas Term (Oc- 

 tober) last in favor of the plaintiff. 



"The judgment is not, I believe, to be appealed from, 

 although that course is open to Messrs. Steadman and 

 Phair. It was not, however, come to by the Court unani- 

 mously, so I will refer to it sufficiently to show the views 

 held by the Court, as well as by the dissenting Judge. 



"The Chief Justice and Judges Weldon and Duff held 

 that the particular and exclusive power of legislation re- 

 specting the Inland Fisheries, given to the Dominion Par- 

 liament by the ninety-first section of the British North 

 American Act, is not controlled by the general power given 

 to the Local Legislature over property and civil rights by 

 the ninety-second section, and, therefore, the Fisheries Act, 

 which authorizes the Minister of Marine and Fisheries to 

 issue fishery leases is not ultra vires; where 'property and 

 civil rights' relate to 'matters over which the exclusive 

 legislative authority is given to the Dominion Parliament 

 the general power given to the Local Legislature must 

 yield; if the Dominion Parliament had the power to legis- 

 late on the subject of inland fisheries, it must be the judge 

 of the extent of legislation necessary;' its power could not 

 be limited to the time and manner of fishing, but it had 

 the right to prohibit fishing without a license in a non-tidal 

 river. 



"All the judges were of opinion that where there were 

 riparian proprietors the right of fishing to the middle of 

 the river would be vested in the owner of either bank, as 

 incident of ownership, but in this case, the bed of the 

 river being expressly excepted in the Crown grants of the 

 lands on either side, the rule did not apply. 



"Judge Fisher, in his opinion dissenting from the judg- 

 ment of the Court, held that the power vested by the nine- 

 ty-first section of the British North American Act was 

 merely for the regulation of the fisheries, and gave no au- 

 thority to lease or sell; that the Crown lands in the prov- 

 ince were vested in the Crown in trust for the people of 

 the province, and that the right of fishery, being incidental 

 to the proprietorship of the land, it was held as the land 

 was held, and could not be granted or leased to the exclu- 

 sion of the public. 



"The judgment of the Court, .notwithstanding Judge 

 Fisher's opinion, is in accord with the sentiment of the 

 angling fraternity in Canada, and should the points in is- 

 sue ever be carried to the Dominion Court of Appeal or 

 even to the final tribunal, the Privy Council of Great Brit- 

 ain, it is not probable that it will be altered. It confirms 

 Lessees of salmon angling privileges in the exclusive right 

 to waters leased by them from the Department of Marine 

 and Fisheries, as against the general public, and it also es- 

 tablishes the right of the owner of lands bordering on our 

 rivers to fish from such lands without hinderance from 



anyone." 



■**♦■ 



Massachusetts.— Our correspondents who have lately 

 complained so bitterly of the inefficiency of the game 

 laws will be pleased to learn that the Massachusetts State 

 Sportsman's Association will hold its annual convention at 

 the Bay State House, Worcester, at 10 o'clock on December 

 7th. As all sportsmen and sportsmen's cluDs of the State 

 are invited to be present, an opportunity is offered for the 

 ventilation of grievances and for proposing such amend- 

 ments to the game laws as may be found necessary. 

 **** _ 



—An owl was shot in Windham, Vermont, last week 

 whose wings measured, 4 feet 10i inches, from tip to tip. 



Reported exclusively for Forest and Stream. 

 In Respect to the Polar Discoveries.— -"The Polar 

 Region," remarked Professor Pericord, in one of his 

 sublime elucidations before his advanced classes, "though 

 not yet practically discovered, may be said to be well 

 known. Its precise location is indicated in the heavens by 

 the constellation called the 'Great Bear.' Hence the ex- 

 pression 'bare poles,' in technical use by Arctic sailors." 

 Here the Professor abstractedly laid the palm of his hand 

 upon the bald spot on his occiput, while he ran his eye 

 over his pupils to discover the visible effect of this as- 

 tounding revelation upon their minds. Appearing per- 

 fectly satisfied with the impression made, he continued: 

 "I do not approve," he said, "of the persistent efforts to 

 reach this sublime region, any more than I approve of the 

 attempts of theologians and transcendentalists to climb to 

 heaven by the tenets they hold. Lives and souls are con- 

 tinually lost in the endeavor. Yet I should much like to 

 learn — our curiosity is naturally stimulated to inquire — if 

 there is really an area of tropical heat and luxuriant vege- 

 tation within the drear belt of extremest cold, and of ice 

 160 feet thick, that surrounds the Pole; just as men would 

 fain solve the mysterious problem of a 'lake of fire' within 

 the cooler and more genial precincts of the celestial sphere, 

 or spheres. 



"That opinions vary on these cognate topics is not incon- 

 sistent with the workings of human logic; but the differ- 

 ences that obtain, as to whether the Pole itself is a region 

 of extreme heat or of extreme cold, show how easy it is 

 for any of us to go frcm one extreme to the other; and it 

 is the effort to make these extremes meet — or, I might say, 

 in the case of famishing Arctic voyagers, bread and meat, 

 (ha! ha!) that costs the world so much of money and valu- 

 able brain." Just here the Professor complained of virtigo, 

 or dizziness in his head, although he persisted feebly that 

 he could not be regarded as a dizzypated man, never being 

 subjected to "merry- go-rounds" and all that sort of thing. 

 "You will excuse me, young gentlemen," he said, "i in- 

 tend to pursue this subject of the North Pole until I reach 

 the end of it, although I may have /ar to go." 



Scarcely had his words been concluded, as the brealh 

 leaves the lips of a dying man who has left a legacy, when 

 the classes broke up in a tumult; some of the students de- 

 claring that the grave Professor was innocent of any in- 

 tended ambiguity, distinctly saying "virtigo," whi'e others 

 maintained that he deliberately perpetrated a pun— upon 

 which the Schism still obtained. —From Professor Pericord' 's 

 Spasms of Wisdom. 



-»♦♦- — ■ 



The Rod and Gun Club of Springfield, Mass., had its 

 regular annual game supper on Wednesday evening the 22d 

 inst. From the menu we have received we judge it to 

 have been a most elaborate affair. No description of game 

 appears to have been wanting; from the lordly buffalo to 

 the delicate woodcock, all were provided. We acknowl- 

 edge an invitation to the feast, and from having before ex- 

 perienced the hospitality of the club are fully aware of 

 what we have lost. But that little word, duty, held us as 

 tightly as a chain cable, and while mourning the past we 

 can only look hopefully to the future, when the April 

 Bench Show of the Rod and Gun Club will again put us in 

 communion with its kindred spirits. 



«*-•*». , 



A Simple Disinfectant.— In our last issue we published 

 among our miscellany a clipping from an exchange with 

 the above heading regarding which a correspondent 

 writes : — 



"In the first place the article recommended is of a very 

 poisonous character when left standing about carelessly in 

 vessels as would naturally occur in such use. Secondly it 

 will not remove unpleasant smells from water closets hos- 

 pitals, fish markets, slaughterhouses, sinks, etc., etc! un- 

 less, as the article states, it is left a. fete days, for the smell to 

 pass away.' Of what use is a disinfectant that takes a 

 'few days' to effect a remedy? For removing the nuisance 

 or offensiveness of 'dead cat, rat or mouse about the house ' 

 placing some of it as directed, will have no more effect 

 than placing so much rain water in like manner. Copperas 

 has been tried and found wanting; it has but the very 

 slightest property as a disinfectant, as all health authori- 

 ties are able and willing to testify to from repeated and 

 abundant opportunities for testing. But if you desire to 

 furnish reliable information to your thousands of readers 

 for this most important purpose, viz., of suggesting an 

 effectual and instantaneous disinfectant, one which never 

 fails in destroying contagion, putrifaction, deodorizing of- 

 fensive gasses of decomposition of animal or veo- e fable 

 matter of whatever kind, then it maybe found in the^Giron- 

 din Disinfectant, and at a cost equally as cheap, with results 

 much more satisfactory. One quart of this fluid added to 

 five to nine quaits of water poured down water closets in 

 small quantities or sprinkled about places where offensive 

 odors are present, or used as spray in hospitals or sick 

 rooms, not only destroys and disinfects, but it does it 

 almost instantly. And it leaves no odor behind as manv 

 so-called disinfectants do. It is not poisonous nor injurious 

 to articles or fabrics of any kind with which it may come 

 in contact It is truly a simple, safe, certain, prompt dis- 

 fectant, and its cost places it within the reach of all beino- 

 from seven to twelve cents per quart when diluted."' & 



Acknowledgment.— We acknowledge with a befitting 

 degree of humility the numerous congratulations of news- 

 paper contemporaries and persons, that we have received 

 concerning our enlarged and improved paper. 

 «*-••». . 



Coca.— Some of our spcrtsmen friends have been ex- 

 perimenting with Coca, the South American nervine, of 

 which much has been written, We shall give the results 

 in our next issue. 



-We note the return of Prof. E. D. Cope's Scientific Ex- 

 pedition from the Upper Missouri, and shall refer to it 

 Investigations m& tb.e results of its labors. 



>:■ 



