THE PROFESSOR AND THE LAND OWNER. 



91 



"do you know you are liable for false im- 

 prisonment? And now, sir!" addressing 

 Mr. Jones and his client, "since we are in a 

 Court, will you state your client's grievance 

 if he have one and I will answer it If he 

 has suffered pecuniary loss for which I am 

 liable. I will pay it!" 



Mr. Jones arose and stated his case : 



"It is a popular fallacy and an almost 

 universal impression that wherever there is 

 a right of navigation, or wherever a boat 

 may pass, i. e., wherever 'the water is boat- 

 able,' there is a corresponding right to en- 

 joy whatever fishing the waters may afford ; 

 and this regardless of the wishes or desires 

 of the owners of the lands on either or 

 both sides where there is a union of title, 

 in which case the ownership of the land 

 under the water would also attach with 

 rights of the upland property. Now such a 

 believer fails to discriminate and distin- 

 guish between the right of navigation or to 

 use the water as a highway, and the right 

 to property which only the owner of the 

 banks* possesses, i. e., of fishing, irrigation, 

 watering cattle, etc. Mr. Lvle is the own- 

 er of both sides of this stream, which is 

 non-navigable and non-tidal. He is there- 

 fore the owner of the land between the 2 

 shores. In common presumption he is the 

 owner of the fishing which may be had 

 within the limits of his proprietary rights ; 

 therefore to that extent he is the owner of 

 the waters that yield fish whereof he alone 

 may take. Being above flux and reflux of 

 the tide,, he owns it exclusively, save only 

 that up and down this water the defendant 

 may pass, using it for boatable purposes 

 only, as a highway on his journeying." 



"Truly he speaketh to the book like my 

 Lord Hale in De Jure Maris," murmured 

 the Professor as he began to perceive that 

 his antagonist was not so bad. 



'"The public, including my friend and his 

 guide," continued Mr. Jones, "have the 

 right of passage alone. Others may have 

 rights such as rafting, marketing, ferriage; 

 but this defendant in tying to the bridge 

 and fishing therefrom was guilty of tres- 

 pass ; and then in landing on the shore." 



"May I interrupt?" said the Professor, 

 suiting the action to the word. "I am a 

 stranger in this vicinity. I assume the 

 bridge is public property, that I had the 

 right to tie to it and that it has been so 

 decided !" 



"Quite so," said the opposing counsel. 

 "We do not complain of tying to the bridge 

 for purposes of rest ; but to tie to it and fish 

 therefrom, is the act we complain of." 



"Ah, truly hath he read the sages of the 

 law," murmured the Professor, with grow- 

 ing admiration of his antagonist and a 

 keener zest for the legal struggle. 



"Now in hooking the fish in these waters 

 and then going on the shore to land the 

 "fish," continued Mr. Jones, "this defendant 



was guilty of trespass or unwarrantable 

 entry on the land of Mr. Lyle. In netting 

 the trout the defendant was guilty of con- 

 version, in that he exercised dominion 

 over the property of Mr. Lyle, and 

 in killing the trout , totally destroyed it, 

 for which he is liable to my client. The 

 Court will note that the defendant 

 was fishing at the mouth of the lake, 

 which Mr. Lyle has expended large sums of 

 money to stock. In fact, one of the patri- 

 archs of this body of water has been killed, 

 in the very demesne of the complainant. 

 Full warning was given that fishing in this 

 water was prohibited ; that anyone disre- 

 garding the notice would be treated as a 

 trespasser and punished to the full extent 

 of the law ! These notices, as Your Honor 

 is aware, are publicly and plainly posted on 

 both banks, from one end to the other end 

 of Mr. Lyle's property. This was private 

 water which had been improved for the 

 propagation of fish. Large sums of money 

 have been exoended by my client, for years, 

 in stocking the lake with fish, and my client 

 is entitled to the benefit of the statute and 

 of the common law for his full protection 

 and indemnity. The valuable property 

 rights which have been unlawfully invaded, 

 are, fishing in my client's waters ; entering 

 upon and committing trespass on the land ; 

 and killing a trout which is the specific 

 property of my client !" 



The Professor arose, and bowing to his 

 opponent, greeted the Court and said, 



"My learned friend, if he be right in stat- 

 ing that his client owns the land on both 

 sides of the stream and no one else has the 

 separate right of fishery, which may be 

 owned in such a stream as this, severable 

 and apart from the land, has some cause 

 for complaint against me. Not so broadly 

 as put, but strictly of technical trespass, 

 because I put my foot upon his client's land 

 without his consent. My learned friend 

 will, I trust, admit that 6 cents would be 

 liberal compensation for the injury to this 

 freehold. Indeed, My Lord Kay, for whom 

 I have the highest respect, once suggested, 

 as pointing out the absurdity of this claim 

 of trespass, that if by the side of a highway 

 an artist set up his easel and made a sketch, 

 he might be a trespasser, but no one in his 

 senses would bring an action of trespass 

 against him for doing so. It may well be 

 that this historic stream is not navigable 

 and therefore creates private rights; for a 

 learned Chief Justice has said.it is not every 

 stream in which a fishing skiff or gunning 

 canoe can be floated in high water, that is 

 deemed navigable. Again, it has been said 

 that the public has a right of way only in 

 every stream that is capable in its natural 

 state and its ordinary volume of water of 

 transporting the products of the forests or 

 mines, or the fruits of the soil upon its 

 banks. But the damage suffered is not the 



