246 



FOREST AND STREAM. 



[Ootobeb 28, 1880, 



She country is for jjiany miles in Ijreadti trodden like a large 

 road. — From t/ieMtn«, p. OS. 



The Papi-aboitk— /i'M«te?!4, Vt, Of/. 15. — /;"'//-)■ Foi-ent 

 and tHtremn: JVow won't you please toiuforni an ;uixious imb- 

 lie what the deuce a Pappal)otlc is? Wo liavt iioiin.i u gxT.ai 

 deal of this tliinij in your columus, hut whetlier it is fish, liesli 

 or fowl, or hard-Sliell wc don't know. Please explain. 



Veiibk Moste. 



We will, we will. The strain shall be forthwith taken offl 

 the mind of "Verde Monte" and otlicrs, and their anxiet}^ 

 and that of the public shall hi.', in a measure relieved. Know 

 then, Oh anxious publio, that a Pa.ppabotte is mntlu-i fisli, 

 flesh nor liard-shell, but fowl. In fad, not to put too line a 

 point on it, a bird. Pappabotte is the Creole i^reiicli name 

 given in Louisiana ami some of the Gulf States to tlie gray 

 plover. >>v Bmiiam's sandpijier (^'1 '•</{«;■«.■>• biiHr'.uidu,<). "I'lie 

 name is referred lo liy Audubon in his biography of thus sxjccics. 

 Other names applied to it are upland plover and field plover. 



SPl gnltme. 



The Alabama. Fisn Com.missiok.— In our list of Pish Com- 

 missioners pviblished lasl week we left out this State because 

 we failed to hear from them, and as in no case did we use any 

 information at second hand -\s'e were obUged to leave Alaba- 

 ma out. We arc soriy now that we did not \vait one week 

 more, as we have ju.st. heart! from them ; but beginning on the 

 l.t^t of September wc tliouyht that aU not heard from by the 

 miildk: of October nmst cerlainly have disbanded or ceased to 

 exist. Few know liow niueli laljur it involves to get up the 

 annual list, fur altlioiii^i-L many respond promptly, Others are 

 absent, and it takes several letters to find them and get a rc- 

 si)Ou.se. There sxre changes every year, and as the Eohest 

 AND Stkeam is the organ of communication between all tish 

 cultm-ists in the civiUzed world, it is a matter of public neces- 

 sity as well as conveinence to have such a.li3t. To complete 

 it wc now print : 



Alabama. 



CliMlcs S. G. Doster ...Prattsville 



D. B. Hundley Comtland 



THE PISmVAY QUESTION IN IOWA. 



. A MILLER PBOTBSTS. 



^ OxpORD Mills, SepUmbei' 20, 1880. 



Editor /?,(;v,!(?.— You will oblige menuicli if i'ou will give 

 me s|ia -e ti express uiv views in relation to a law pa.ssed by 

 the Jiigiiieentli General Asseniblv of the State of Iowa. 



ChapterlSfi, Seelion 3, of said law reads; " If, within six- 

 ty days after the service of a notice liv the shcrifE of the 

 county, the ow)ici, agent, or parly in eliaigo sliall fail to con- 

 struct and attach a tisliway to such dam, as required by the 

 Connniasioner, then the count_v Boar-d of Supervisors shall 

 immediately ])roceed to construct tuid attach the same ; and 

 f^ when so constructed, the original cost and twenty per cent, 

 >' thereon, as a penalty, shall be entered upon the tax hook of 

 the county, and shall be a lien on said property, to be col- 

 lected in I he same manner as provided by law for the collec- 

 tion of other taxes." 



Section 4 reads: "To carry out any of the provisions of 

 this act, the county Board of Supervisors mB}^ Issue count}' 

 warrants ftir the payment of sucli expenses, "and when the 

 taxes are paid, (be warrants and all accrued interest thereon 

 shall be refunded to the county, and the balance, after pav- 

 ing the Clerk antl Slate (Jonmiissionei- and Board of SupMv 

 visors for their services etc., and proceeds to be paid over lo 

 the county treasurer, and will become a part of the school 

 fmid." 



To this the Pish Cotumissioner adds, on his o-vvn responsi- 

 bility, with all the dignity that belojjgs to his office, in his 

 notice to mill owners : "No temporizing or temporary work 

 will do, as it will be at the mill owner's expense, as the law 

 requires liim to keep it in constant repair," 



Mr. Editor, I am a citizen e.f these United States and desir- 

 ous of showing wilUng otiedience lo the laws thereof. I de- 

 rived my tille lo my land from the United States govern- 

 ment, clear of any and all encumbrance, without any 

 reservation of erecting or upholding (ishwavs for the tieneii't 

 of other parlies. Therefore I claim pi'otcction from the 

 United States from imposition .and unjtist laws. Neither the 

 Blate of Iowa nor any other State has any right lo pass any 

 law that will ainio}', hamper, endanger or depreciate the 

 value of any man's property, without' paying him in lull for 

 all damages he may sustain. If the peoplt^ of the Stale of 

 Iowa want lu preserve the tish, what claims havethev on the 

 mill owners to com) el them to he at all the expense f Does it 

 beuelit Ihe miller more than the farmer, or auv one else? Do 

 they consider the mill owner an intruder? "Do they prefer 

 cat-tish and wall-eyed pike to the manufacturing interests of 

 the Stale? If .so, why don't they pass a law that will give 

 them Uie power to destroy all the mill-tlams in the State, and 

 give the fish a chance ? Thevhave just as much right to pass 

 a law of this kind as they ha'vc to pass Ihe other. 



What benelit does Ihe jniller derive from this heavy ex- 

 penditure of money ? You rarelv lind the miller with a fish- 

 pole in his liaud. It is not this class of nuMi who reap the 

 benefits from the lish law. Fen- my own part f would give 

 con.siderable money if there were not a fish in our I'ivers. 

 They are the cause of liiinaing a parcel of lazy loafers to oiu- 

 hshinge- Mv ..]-. "1:111, ih, , .uniry and the towns, who destroy 

 the suit" !' .!' .. - I. .rinccdown and hnrninL,' fences 



and di- _.:i .11 \r ' '.,!', ,l;iv. to liie annovance of i^niet, 

 peaeeulili; ^.,d luv.-.ilii.lin,., enizens. Of cours'e there are f<-w 

 exceptions u, tins rule. Is ii tor a class of men and liovs like 

 this that the millers .are re(|inreil to he at from *:300 to *500 

 expeii.se in erecting a tishway to preserve tlie fi.sh and contrib- 

 ute to their pleasure ; not alone tlus amount of expenditure, 

 Imt they are required to keep this annoyance and encum- 

 brance in perpetual repair, no matter whether it is carried 

 out by any tlow of ice and figs that passes over the dam— 

 wliich wiU he the eascMiine limeB out of ten— or whether it 

 carries out Ihe dam as welb 



Heretofore the mill o\TOers of the State of Iowa have been 

 well protected in their rights by the enactment of good sound 

 Ittws on water privileges ; and for this reaaon Iowa stands 



second to no grain mamjfacturing State in om- Union— as the 

 reports from tlic late Miller's (Jon vcntiou at Cincinnati wiH 

 show. Is it possible that all the protection we have hereto- 

 fore enjoyed is to be destroyed by some wild tish fanatic who 

 cares more for a wall-eyed pike or a sun-flsh than he does for 

 all the manufactming interests of the State? Let the millers 

 of the State rise in their might and defend tliem.sclves against 

 such tmjust and arbitrary laws, as they have done heretofore 

 in suchca-scs of imposition, and llicv will undonbledly come 

 out victorious. 



If this fish law can be enfoi-ccd, then the next law I expect 

 to see enacted will be one requiring ever}' farmer who owns 

 100 acres of land on the line of any railroad throughout the 

 Slate of Iowa to l)uild, grade and lay a track the entire length 

 of his farm at his own 'expense. Not only this, but the law 

 will require him to keep it in constant repair, at the risk of 

 losing the balance of his farm if he does not complj^ with all 

 the reiiuirements of the law, whether from nnwilhngness or 

 inability. All the,se benefits he is expected to donate to the 

 travel of the general pidjhc. Why not enact and enforce a 

 law of this kind ? One can be as easily enforced as another. 

 I can see no difference. 



If the people of the State of Iowa want to stock their rivers 

 with fish, why not levy a general state lax for the purj^iose of 

 erecting these fishways and keeping them in repair, at the 

 same time giving the mill owneJ a guarantee that any 

 damages he may sustain from the erection of such hflbway 

 will be promptly paid by the Stale, or the county in whicii 

 the mill dam is located. The State ha.s no more claim on the 

 null owner in this respect than it has on the farmer, me- 

 chanic or an}- other class of men. I think it is the duty of 

 the press throughout the Sttite to come out boldly and de- 

 nounce all such un j ust laws. Justice. 



Etrn.y by commissioner shaw. 



After giving the law, the correspondent, who evidently, 

 from what is ^VIitten, is a miU owmer, gives what appears to 

 he his eai-nest, honest sentiments, and states quite fuUy what 

 he thinks to be the grievances to which dam owners are sub- 

 jected by the flshway law. Being a good argument from his 

 point of view, it deserves a carefid and cancfid consideration 

 at the hands of the public. 



He says first : "lam a citizen of the United States and 

 desirous of showing willing obedience to the laws thereof. 

 I derived my title from the United Slates govermnent, clear 

 of imy anil all encumbrance, without arty reservation of 

 erecting or upholding fishways for the benefit of other par- 

 ties," imd claim protection from any law thai will hamper, 

 endanger, or depreciate the value of my property, without 

 payment in full for all damages sustained. 



The writer overlooks the fact that he is but one of several 

 htmdreds that have obtained titles exactly alike from the 

 general government to the banks of the Wapsipinicon River, 

 and that by maldng the river impassable for fish he has been 

 depreciating the value of their property, thereby doing in- 

 dividually to all these parlies just what he now complains 

 the State should not do to him. 



AVe hold these prhiciplcs to be well settled by usages and 

 decisions— so many that v\e find it impossible in a short 

 article to quote but a very few of them : 



1. In any grant from the public to individuals, any 

 privilege which is not expressly gi'antcd is witldield. 



2. A river is a public way. 



3. The right to the water and fish in a stream is a joint 

 one to all the owners, and must be so used by each as not to 

 unreasonably interfere with the rights of others. 



4. The passage of fish in a river is a public right. 



,5. The Legislatirre has the right to make such laws as will 

 protect the public from injury by an improper use of any of 

 these public rights. 



To partially prove the correctness of these positions we will 

 suhunt a few decisions. 



"Every owner of a dam kolds it on condition or limitation 

 that a sutficieut and rcasonaljle passage way shall be allowed 

 for fish, lliis limilalion, being for the benefit of the public, 

 is not extinguished by any inattention or neglect ui compell- 

 ins the owner to comply with it." (Stoughton v. Baker, 4 



Miiss.. rm.) 



In that case there was neglect to build a fishway from 1634 

 to 1789; but it was held that the duty continued. 



" The preservation of fi.sherics is for the benefit of the pub- 

 lic. Tie: "i-bi inlinve the fi.sh pass up a river is a public 

 right. I -!i i iiiueh the tish is in the owners of the soil- 



but tile I .1 ; ' I lie tish there, so that they can be caught, 



isapulil:; n!"ii. ' i Commonwealth v. Ksaex Co., 13 Gray, 

 247. j 



"The grant of privileges and exemptions to a corporation 

 is strictly construed agahist the corporation, and in favor of 

 the public. Nothing passes but what is gi-anted in clear and 

 explicit terras." (O'hio Life Ins. Co. v. Debolt, 10 llowm-d, 

 43,').) 



," Owmcr.ship of the hanks and bed of a. stream gives to the 

 proprietor the exclusive right of tisbery 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, nor both combined, 

 conler any right to erect any obstructions in a stream to pre- 

 vent the" free passage of fish up and do\\-n the river at their 

 accustomed .s<-asons, 'as such obstructions would impair and 

 ultimalelv destroy ail such riglus owned by other proprietors 

 both above and li'elow the obstruction on such stream. 



"Siuih water is everywhere regarded a pubhe right, and 

 fisheries, even in waters "not navigaljle, arc so far public rights 

 that the Legislature ma\- oi'daiirand establish regidalions to 

 prevent olislructiousto the pas.sageof fish, and to promote the 

 usual and uninterrupted enjoyment of the right by riparian 

 o\vners." (t'ommissioncra v. Holyoke Water Power Co., 

 Supreme Com-l e'f United States, December Term, 1872.) 



This llolye>ke i.ase is tlic most noted that has ever been de- 

 termined in this country, and was especially favorable to the 

 dam owners, aa a moment's glance at what was claimed by 

 the defendants will show. 



It was claimed for them, as has been claimed by om cor- 

 respondent, Ihai tliev had a good title from the Government, 

 anil so were entitled'to use their property as tbev saw fit. 



It was claimed that they had used Ihe'w-ater power, as they 

 were using it, for a long period of time and .so had obtained 

 the right to use it by statute of limitation. 



It wa.s claimed that they had expended .$3,000,000 in im- 

 proving their power, and "ao it was against public policy to 

 compel them to put in a fislnvay. Also, that they had paid 

 owners of fishing or riparian rights above their dam .ii-iO.OOU 

 for those rights, and that that fact ahouhi relieve them. 



But u)ore especially it was claimed that thei/ had a npedal 

 charlt:)- frtrm the titnit Leginlature ptrviiUing them tv build jiuit 

 .smk (7. dam ax thfy had biiilC. 



We have not lime or space to go over this case, but will 

 say that all that was claimed for the defense was proved or 

 admitted ; that it .was argued by eminent counsel, both be- 



fore the Supreme Com-t of Massachusetts and tho Supreme 

 Ooiu-t of the United States ; that on August 31, 1873, Uie 

 Supreme Com-t of Massachusetts enlereil a decree! aaain-st tho 

 dcfeirdants, compelling them to put inn li-li.-. :iy : that upon 

 appeal to the Supreme Court ol the 1 r . 1 ; - -.1 :;; :■/ 1 lie decree 

 was affirmed at the Deeember term, l.-ii:;' :,'.lili.ii 1 lie own- 

 ers were compelled to put in a flshway. We Coiiil cite doz- 

 ens of dedsions bearing upon the question, anil in all our 

 reading know of no one decision that has not borne in the 

 same direction. So we consider the (piestion virtually settled, 

 .so far as the courts are concerned. 



The Judiciary Committee of the House and Senate of the 

 Seventeenth General -Assembly of Iowa, eumposed of tlie best 

 of legal talent, so determiued'aii. I 1 . i- . 1 1. nlier a full inves- 

 tigation, when this law was lull ■ I ' ' ihilr aeliou. 



Outside of Ihis (|uestion ol i.i. .. one ot right or 



"justice." Originally all the pur, liaH 1.-, ,-,i ijro|.H:rty along a 

 stream pay the sainc price for their lands, I'IbIi were abun- 

 dant aloiig the .streams, and arc the juroperty of ihe joint 

 owners. One num builds a darn that elfectually stops tho 

 passage of fish ; but as they arc plenty, no one objects. The 

 miU power hruurs wealth t"o the owner, until lie boasts of its 

 value. The dam brings barrennc-'S of fish to tlie stream, un- 

 til the mdl owner, scorning the little that is left, says: "I 

 would give considerable money if thci'c were not a lish in. our 

 river." 



Now those who have sufl'ered these losses ask those who 

 have assmned to own all there was of value along ihe river, 

 and in so dohig ueariy deslroyel their neigbbm^' riiiiits, to .so 

 use the privilege they are enjoying as 1,0 I'ermit the fish to 

 pass up the streams through the "waste water that Hows ovei' 

 their dams, in order not to entirely annihilate the Ij.sh— know- 

 ing full won that wliat they ask wiU only partially restore to 

 them their rights, but being willing to suffer this much rather 

 than to injure in the least the water powei's that fm-nish the 

 motive power for an mdustry which is fully and justly appre- 

 ciated. 



The fair discussion of this questiou wi.nild oceuyiy more 

 space than we have at our command, but wo think that what 

 we have said covers the case fully, ^vllere the builders own 

 the land wholly upon which their dams are built. But, it 

 might be added, in meandered streams, like the Wapsipini- 

 con, a portion of the lands upon whicli the dams are built. — 

 that is, the bed of the stieani— has ncv(ir been bought or sold, 

 and belongs as justly to the pooiesi peison in these United 

 Slates as to the? parties who a.ssume to own the dams that are 

 upon them ; antl there is no question, as a matter ot fact, blit 

 that an action for their entire removal could be sustained in 

 the proper courts, if sulTicieul cause were shown for so tki^ 



IVhat wc have written is in the kindliest of feeling toward 

 mill owners, but is what we believe to he the facts and the 

 law in tne case, and ^K\n\t is beint; demanded by the masses 

 of our people at the hands of owners of dams. 



The Fi.sh Commissioner claims to have made plans of fish- 

 ways, as far as he was able, so that they shall not interfere 

 with the water powers (as they only use the waste water), 

 and tliat, in his opinion, they will ad"d strength to llie dam, 

 while they are as cheap as durat>iiitv and efllcieucy will per- 

 mit, B. P. Shaw. 



FISH CLOTURE IN FRANCE. 



TjlROM the annual report of il. Ravcret Wattel, Seei'etary 

 J- to the Societe fl'Acelimatation of Paris, for the past 

 year, we publish the following translation of that portion of 

 it which relates to fish cullure. He .says: 



As in preceding years, the suliject of repeopling ilie streams 

 has continued looeeupy you serionsly, and white seelxingto find 

 a way ot putting an en-i t. . tin. i.Sus,-.; ot fishing and poaching, 

 Whichhavecause.lllir,!' I .. ... note or less complete, of 



fish m almost every ri-. 1 1 . i : to eurieh our iclliyolog- 

 ical collection with rui. : - 1 .^ ■ i rapid growth, and conse- 

 quentlv more fit thau in.lit^i u...us .si.eeies to facilitate a speedy 

 reprod'uclion of fish. Among these e.-xotic species Ihe sahnon 

 of California merits to attract om- attenlieai in a particulai' 

 manner, lieeause of its reniarkable vigor, its unusually speedy 

 development, and its fitness to endiue a high temperatm-e. 

 Thanks to Prof. Spencer F. Baird, Commissioncr-t^eueral ol 

 Fisheries m the United States, om aocicl} has obtained a 

 considerable quantity of fruitlul eggs of the tialnuj quiniiai. 

 These eggs were imrusied to several of om colleagues, and 

 judgimr from the reports which we have received, the spe- 

 cies does not seem lo lose iu any degree the excellent qualities 

 which distinguish it in Aiueriea. Already a considerable 

 number of fry have liccu emptied into a great many rivo'S, 

 and permit us to expect the iieelimatatioii of this excellent 

 species of .salmon in our i^'rench \vaters. We cannot expvLm 

 loo many thanks to Prof. Baird, wlio. by his excessive jjeuo- 

 rosily to" our society, has permitted us to obtain 30 prechms 

 an acciuisitioii. 



We owe, besides, areat gratitude to Mr. Fred Mallier, of 

 Newark, >;. J , sissistani to the Commission of North Auiuri- 

 cau Fi ti 1 I 'is been kind enough to see lo the ship- 



pixig ,1 Lineil for the society, and lo contribute in 



a.,smiii_ ' it the invoice by his intelligent and valu- 



I'lieimproveaiLntsmade in foreigit couulriciS, and especially 

 on the other side of the .Vilaniie, in the arliflcial reproduc- 

 tion of fish, have exeiied onr attention, and you have bailed 

 with great interest the infonmiiion given you as regai-ds the 

 labors of the superior (Commission on Fisheries in Ihe Unilcd 

 Stales An a.^semlilv of chstiuiruished and learned men and 

 of professional expe'rls, having' at their head the eminent 

 Prof. Speneer F. Baird, this commission renders the greatest 

 services lo pme zoology, as well as lo fishing industries and 

 the cultiu-e of fish. Tiinniphmg over every diflieulty, it has 

 succeeded in apiilying to the sea-tiah tho same process of ai'ti- 

 ficiid multiplicatii'Hi, whose uBcfuhieSS a few years ago was 

 contcaled with regard to the species living in fresh water. Il 

 is right to arid that it is on a gigantic scale, and that this pro- 

 cess°will be put in uperalign at the end of the present year. 

 The Universal Exposition of 1878 furnished tlie occasion of 

 wc>rk .su( li as couhi not escape your attention. You had u 

 report on tlic culture of fish at the great international cou- 

 cour.sc presented to you, and Mr. Chahncra has given you an 

 accomit of tlie interesting observations which he had occa- 

 sion to make at ihe Atiuarium of the Trocadero during the 

 time that the direction of this magnificent establishniCTit was 

 confided to him. 



jAIr. Duscastel sent you a detailed account of the transfor- 

 mation of salty swamps into reservoks for tish, and of Ihc 

 importance which the creation of such reservoirs would hav 

 as regards public utility. 



Finally, you have recorded -with care the communicationB 

 forwarded by Mr. Ditten on the reproduction and proiectJon 



