92 



RECREATION. 



fish taken, because in that fish he has no 

 property " 



"Permit me," said Mr. Jones rising, "to 

 inform you that the particular trout killed 

 by you has been identified by Mr. Lyle from 

 private marks thereon as having been, 

 when young, put in the lake, and having 

 been thereafter captured, it was again 

 marked, about 2 years ago !" 



"Even though he may identify this par- 

 ticular fish as having been originally pur- 

 chased by him and put, may I say planted, 

 in this private preserve, since it escaned 

 into the river it was liable to capture at the 

 hands of anyone who might have had that 

 good fortune outside the property limits of 

 the owner of the land, without being sub- 

 ject to any claim on the part of the orig- 

 inal purchaser. In this I am sustained by 

 the analogous custom, shall we say law, 

 recognized by the whale fishermen ! Mere- 

 ly harpooning a whale which breaks the 

 line, though the iron and part of the rope 

 remain attached to the whale, does not cre- 

 ate any property rights in the whale in 

 favor of the harpoon owner or thrower. 

 Nor does it give any part interest in the 

 whale, though it be captured with the iron 

 and rope still attached. A sea lion cap- 

 tured in the Pacific ocean was taken to an 

 aquarium on Glen Island, in Long Isl- 

 and Sound, whence it escaped. It was again 

 recaptured on the Jersey coast, and the 

 Court decided that the purchaser from the 

 original captor had lost all property rights 

 in the animal. If I remember correctly the 

 purchaser's contention that there could be 

 no return to natural liberty until the ani- 

 mal had reached its native place was over- 

 ruled, and natural liberty was defined to 

 be the means the animal formerly enjoyed 

 to provide for itself when by its own voli- 

 tion it has escaped from all artificial re- 

 straint and is Tree to follow the bent of its 

 natural inclination. 



"To complete property in fish, as in all 

 other game, the actual appropriation must 

 be made. If a person content with posses- 

 sion for a brief while, suffers that they be 

 voluntarily restored to the water, so they 

 must be recaptured in like manner as orig- 

 inally taken and without using the means 

 of the captor-restorer, the right of property 

 ceases and the fish belongs to the last taker. 



"While the right of fishing on the land 

 is exclusively in the owner, this does not 

 imply nor impart the right to destroy what 

 he does not capture. He does not own the 

 fish in the stream. His right of property 

 attaches only to those he reduces to actual 

 possession and he cannot lawfully kdl or 

 obstruct the free passage of those not taken. 

 If I am stating it correctly (turning to Mr. 

 Jones with courtly grace) the damage is 

 the injury suffered by the right of fishery; 

 mot measured by the fish taken therefrom : 

 since it is extremely conjectural that any 



particular person would have caught it, so 

 as to claim damages by my depriving him 

 of that property right. Certainly if the 

 tidal waters reached these lands I should 

 have committed no wrong nor impinged 

 upon any right of the owners of the lands; 

 so the injury is the invasion of the exclu- 

 sive rights of the owner. If the complainant 

 owned only to the center, quoting as my 

 learned friend has the language of the 

 books, to the thread of the stream, and the 

 fish had been hooked on the opposite side, 

 I would have the right to continue the bat- 

 tle until I landed the fish, though it took 

 me into the waters of the unwilling and 

 protesting owner. My learned friend must 

 concede that I am entitled to the fish as 

 the lawful captor thereof, while in its nat- 

 ural element, which deprived the owner of 

 the land over which the stream flowed of 

 any property rights in the fish. As far as 

 property in the fish is concerned, the fact 

 that I was a trespasser while capturing it, 

 does not deprive me of the fish and confer 

 title to it upon the owner of the fishing 

 privilege! The injury to this land owner 

 is confined to the damages suffered by the 

 presence of my guide and mvself while 

 standing on the shore, and to fishing as dis- 

 tinguished from the capture of the fish and 

 the pleasure thereof and the value of the 

 fish. Again, my learned friend is mistaken 

 in his attempt to invoke the statute for as- 

 sistance to sustain the notice, which reads : 



" 'Fishing prohibited on these waters.' 

 'Trespassers will be punished to the extent 

 of the law.' It is unavailing, because a man 

 cannot stock a stream running over his land 

 and thereby make it a private stream so as 

 to bring it within the laws which impose a 

 penalty for fishing in private waters after 

 public notice. 



"Suppose the owner of one side of the 

 banks had blasted out a hole in the middle 

 of a running stream, and filled it with rocks 

 so that it attracted trout and became a 

 favorite pool. It would not give him ex- 

 clusive rights as against the other owner 

 and the public unrestrained by the other 

 owner. The notice, however, is defective 

 and fails to invoke the benefit of the stat- 

 ute because the notice must indicate that 

 the private water is not only absolutely in- 

 closed, preventing the fish from going in 

 and out, but that it is used or improved for 

 the propagation of fish." 



Absorbed in refuting his opponent's ar- 

 gument, the Professor had kept his eyes 

 on Mr. Jones and his client. Having fin- 

 ished, he looked up at the learned Justice, 

 to find him fast asleep. Both lav/yers 

 smiled at this convincing effect of their 

 weighty arguments, and shook hands, while 

 the Professor said, 



"Permit me to introduce myself. John 

 Lawmaker, Manhattan," and laughed to 



