188 



FOREST AND STREAM. 



IApbil S, 1885 



WHY FISH LAWS ARE NOT RESPECTED. 



IT TS not many years ago when all legislation in this State, 

 looking to the preservation of fish and game, was almost 

 universally regarded as an attempted restriction upon the 

 natural right of every citizen.. The hatred entertained by 

 the first settlers of this country toward the game and fish laws 

 of the mother countries seems to he so deeply implanted that 

 it has been transmitted through every successive generation 

 to the present one with unabated force. "In this country 

 the woods and streams are free," is the response commonly 

 made when any one claims the exclusive right to hunt or fish 

 on his own land. However absurd this belief or assertion 

 may be, it is nevertheless very often sincere. There are few 

 who have had any opportunities for observation , who cannot 

 point to more than one pond or stream deliberately injured 

 or ruined, because the attempt of the owner to prohibit 

 trespass upon his premises was not only regarded as an act 

 of hostility to the neighborhood, but also as an actual inter- 

 ference with the right of every citizen. People are slow to 

 recognize or assert their rights as riparian owners to the 

 waters which flow over their lands, for fear of some secret 

 attempt at retaliation. 



The cutting of a tree or injury to a growing crop will be 

 quickly treated as a trespass by the man who will quietly 

 look on while a half score of persons will deliberately drag 

 a seine through his pond or stream, in wanton disregard of 

 his rights, and in violation of the laws for the protection of 

 fish, and consider himself lucky if they " count him in " 

 when they cast lots for the " catch." 



If riparian owners were aware of their rights, and the 

 popular sentiment would sustain them in asserting them, 

 there would be no more need of game constables to-day than 

 there would bo of wood or grain constables. There has 

 been, however, duriug the last ten or twenty years, a very 

 decided and satisfactory change in the popular sentiment 

 throughout the entire State, and it would have been much 

 more satisfactory if the legislation relating to fish and game 

 had been more uniform and more consistent with vested 

 rights. 



The successive acts of our Legislature have not been re- 

 spected, but have too often begotten a spirit of resistance, 

 because they were harsh and unequal, and contrary to the 

 public sentiment, even when the popular sentiment has 

 been in favor of enacting and enforcing stringent laws for 

 the protection of game and fish. 



What for instance could be more absurd or unjust than 

 the law enacted some twenty or more, years ago, which made 

 every person liable to a penalty of $25 who happened to 

 cross the land of any person without permission on his way 

 to a stream, even though he had the consent of the riparian 

 owner to fish: and which gave the right of action not to the 

 owner of the land only, but to any scalawag who might see 

 fit to sue for the penalty. 



While we have no law as absurd as that on our statute 

 books to-day, we do have laws which are impossible of en- 

 forcement. 



It would be a grave disaster if our courts should hold cer- 

 tain portions of our present law unconstitutional, for the 

 reason that the Legislature had exceeded its powers, and yet 

 the fear of just this result has prevented prosecutiou, while 

 the failure to prosecute has only tended toward a greater or 

 less defiance of the law 



We know personally oi more than one deliberate and wan- 

 ton violation of the fish law within the past year or two, by 

 persons who had the guarantee of some shrewd lawyer that 

 in case of trouble he would drive a "coach and four through 

 the law." 



The right of the Legislature to pass laws for the protection 

 of game and fish, has been exercised under the clause in the 

 Constitution authorizing it to pass general laws. 



A general law is one which whether applied to the entire 

 State, or limited in its scope, must affect equally and uni- 

 formly, all who are interested in the subject of the legislation. 



Wlien two or more persons are in possession of a common 

 right, the Legislature may prescribe the mode in which that 

 right shall be" enjoyed by a general act, which must affect 

 all equallv. 



If the legislative act restricts the enjoyment or use as to a 

 portion, and enlarges or continues it as to the rest, or what 

 is worse, if it bestows the entire use or enjoyment on a 

 portion, and prohibits it as to the rest, it would not be a 

 general law. 



Even though the law be a local one, in its scope and effect, 

 it must be general or equal in its application. And such a 

 law will always command respect. 



The Constitution also provides that the Legislature may 

 delegate to boards of supervisors certain powers of legisla- 

 tion' within, and affecting their several counties, but under 

 this power, can it delegate a power it does not itself possess? 



Can a board of supervisors under the power given to it to 

 pass laws for the protection of fish, enact a law relating to 

 its county which the Legislature could not enact? 



To illustrate. Suppose that at the point where three coun- 

 ties meet there lies a lake of say a hundred acres. The 

 riparian owners own to the center of the lake, with the ex- 

 clusive right of fishing on their own land. 



Suppose the Legislature should now pass an act prohibit- 

 ing by name all those living in one county from fishing in 

 this lake for five years, permitting those in one of the other 

 counties to fish with hook and line in certain months, and 

 allowing those in the third county to fish when and as they 

 see fit. Would such an act be within the constitutional 

 powers of the Legislature? Would not the ownership of the 

 land adjacent to and underlying the lake carry with it as a 

 vested right in each riparian owner the right to catch on his 

 own land, the fish abounding in the common waters, on the 

 same terms as his neighbors? If the Legislature cou:d not 

 pass sucli an act, would it make any difference if, instead of 

 prohibiting or permitting these persons by name, it should 

 arrive at the same result by dividing them into groups, by 

 adopting the county fines as arbitrary, geographical lines of 

 separation? 



If it could not enact such a law, would a board ot super- 

 visors, under its delegated authority, have the power to en- 

 act a law which would have precisely the same effect? But 

 yet this is, in its practical effect, the result of many of the 

 acts recently passed by the Legislature and by the boards of 

 supervisors of our different counties, acts which have, in 

 effect, drawn an arbitrary line through or across lakes or 

 streams, in the waters of which persons have a common in- 

 terest as a vested right, thus practically enlarging the enjoy- 

 ment of that right to a portion by limiting or denying it as 

 to the rest. 



There are streams in this State the centers of which con- 

 stitute the boundary lines dividing different counties, in one 

 side of which it is lawful to catch trout, while to take them 



in the other side at the same time and in the same manner is 

 prohibited under severe penalities. 



1 >o our astute legislators for one moment suppose that the 

 persons owning the land on the closed side of these streams, 

 whose only privilege is to sit on the bank and watch their 

 opposite neighbors as they lure the fish to their side and 

 then take them, will aid in or countenance the enforcement 

 of a law which prohibits the enjoyment of what they con- 

 sider to he, and what may indeed be. a vested right? 



The general law (Sec. 33) divides in two the Wallkill, 

 which was stocked at private expense some years ago with 

 black bass. Any person having a net or fyke in his posses- 

 sion on the shore of that stream in Orange county, is guilty 

 of a misdemeanor, and liable to a penalty of $25 (Sec. 24) 

 While the possession of nets and fishing with fykes (for 

 suckers and eels) is lawful in Ulster county. 



Unless a fyke can be invented, which will discriminate in 

 favor of suckers and eels, bass fishing in the Wallkill will 

 soon he well nigh ruined, for no possessor of a net or fyke 

 can be found in Ulster county who can tell a sucker or eel 

 from a black bass. 



The question of the legality of this kind of legislation has 

 never been before the courts, but we do not believe that it 

 would ever be upheld as within either the letter or spirit of 

 the constitution. 



The reason has been already suggested. 



First — Every act of the Legislature of a local nature should 

 be made to apply, without reference to county lines, to the 

 entire waters of a lake or stream, in the waters of which, as 

 it flaws over their land, the ripariau owners have a common 

 right or interest. 



Second— The power to pass laws for the protection of fish, 

 when given to boards of supervisors, should be restricted to 

 those waters, whether lakes or streams, which lie wholly 

 within their respective counties. 



When that is done, every law will be general in its appli- 

 cation as to all affected by ft, and then, if it is not respected 

 and obeyed, it can be enforced. 



In making the above criticism, we are not unmindful of 

 the fact that the " Senate and Assembly," as asserted by the 

 Court of Appeals, "possesses all legislative power except 

 when restricted by other provisions of the same instrument. " 



The game and fish laws have been enacted, however, as 

 general laws. 



If they are not general laws, they must be private or local 

 acts, and as such,' under the restriction of the Constitution, 

 they would certainly be incapable of enforcement. 



J. a, Yan Oleef. 



Poua gkeepsie, N. Y\ Mai-chsJO 



THE MOST KILLING FLY. 



Ediitsr Fa/eat and Stream: 



1 have read with a great deal of interest the discussions of 

 numerous fly -casters on the merits of different flies. 



The verdict seems to be in favor of the scarlet ibis with 

 the majority of them, but my experience has been different. 



On the Androscoggin waters the scarlet ibis is a very kill- 

 ing fly, especially for chubs; but on the streams and ponds 

 of northern Coos, there are several dies that will take the 

 lead of it. 



The largest number of trout I ever saw caught in one day's 

 fishing, I took nearly all with Ronald's stone. It was done 

 on Mill Brook, in Stark, a rapid, rough stream, and formerly 

 one of the best trout streams in the county for small trout. 

 I scarcely ever caught one in that stream weighing more 

 than three-quarters of a pound. But years ago, when the 

 upper Ammonusuc River was full of them, the oldest inhab- 

 itant tells of how, in his younger days, he could go out any 

 morning and take all he 'wanted, and weighing from two to 

 five pounds each. Alas, for the degeneracy of modern 

 times. 



I don't dare to tell just how many Frank Bellows and my- 

 self caught on that two days' trip, for it would sound too 

 much like a fish story; but it is needless to say that we 

 couldn't duplicate the number in twice the time this year. 



I. will venture to say that there is not a stream in Coos 

 county where as many trout can be taken with the ibis as 

 with many other flies that I could name. With ponds it is 

 different. In some few of them the ibis is a killing fly, but 

 in the majority of them the Montreal, brown and gray 

 Caughlins, coachman, professor, queen of the water, and 

 golden monkey, will be found a long ways ahead. 



The silver doctor is a leading fly in the Rangeley Lakes, 

 but here it is nearly useless except at Second Connecticut 

 Lake, where I have used it with success. 



The hackles are all good at certain times, dependent on 

 seasons and weather, they usually being better on streams 

 than ponds. The brown, red and grizzly leading respect- 

 ively in the order named, the killer of one day being, 

 frequently, totally useless the next. 



Where 'a person only fishes certain waters he can find by 

 trial which flies are the most taking for the different seasons 

 and may not need to use so many varieties, but if he is going 

 over a large and varied extent of country in all seasons and 

 weathers he will have better success with a large assortment 

 of flies, varieties and sizes, than if he has but a few kinds, I 

 like to have several sizes of my favorite flies, for sometimes 

 fish will take a No. 4 best, at others a 10 or 12, or again an 

 intermediate size may be the thing. I have caught trout in a 

 pond on a bright sunshiny day when the surface was like a 

 mirror by using an extra 'fine leader and very small gnats for 

 a lure, when with ordinary tackle I could do nothing. Of 

 course I had to make a long cast and drop the flies with the 

 greatest care, and strike and handle them very gingerly. I 

 have frequently safely landed trout weighing from one to 

 one and one half pounds each, that after they were in the 

 boat you couldn't lift half their weight by the snell without 

 the hook tearing out. 1 have fished for trout with a fly for 

 many years, but am still unable to tell which is the "most 

 killing fly." It seems to me very much as it would be to 

 ask an M.D. what is the best remedy for diseases. The 

 kind of fly to use seems to depend almost entirely on the 

 various conditions of the water and weather, and as we can 

 never tell what they may be when we take our week's out- 

 ing, give us a well filled book and a large range of flies. I 

 don't think it made so much difference when trout were 

 plentier here, and when "Spioat," "Sneck Bend" and "Aber- 

 deen" snelled hooks and leaders were unknown to us country- 

 men. Then the angleworm and grasshopper were the stand- 

 ard lures; wanting these, a piece of salt pork filled the bill, 

 for, like the people of those times, their tastes were not 

 educated up to the modern standard. I' had good luck one 

 dark, cloudy afternoon with a coachman on a No. 7 hook, 

 taking over'thirty large trout, and I have tried the same fly 

 on the same pond many times since and have never taken as 

 many with it altogether as I took that one afternoon. 



S. J. G. 



TROUT AT FULTON MARKET. 



'"PHE display of fish at Fulton Market the first day of the 

 X trout season was equal to any that has been made in 

 previous years. There was an exhibition at Mr. Blackford's 

 ofboth live and dead trout that w T as instructive and enter- 

 taining, It gave an interesting lesson in fishculture and ich- 

 thyology. The New York State Hatchery at Cold Spring 

 Harbor, sent adult smelts and their eggs, white-fish eggs 

 and fry just hatched, eggs of rainbow trout and land-locked 

 salmon, young brook trout from one week to one month old. 

 Erom the United States Eish Commission at the same place 

 were shown eggs and young of salmon, with which the Hud- 

 son and Delaware, rivers will be stocked, and some mon- 

 strosities in the way of double-headed fish, etc. Erom the 

 New York Hatchery at Caledonia, were trout from one week 

 to three years old, and adult rainbow trout. 



The South Side Sportsman's Club, of Long Island, sent 

 500 pounds of live trout, weighing from one-half pound to 

 three pounds, and some fine specimens of rainbow trout of 

 three to four pounds. The United States Fish Commission 

 sent rainbow and Tahoe trout, and also trout from Pend 

 d'Oreille, and chinook and steel-head salmon. The display of 

 brook trout was perhaps not as large as regards geographical 

 distribution, but in quantity was fully up to any previous 

 one. Many private fishculturists sent trout, which were 

 labeled with their names and ponds, and there was a good 

 display of foreign fish. Mr. S. J. Moore, oE the Derby 

 Museum, Liverpool, sent specimens of the English trout, R 

 fario, and there were also fish from Scotland and other coun- 

 tries. Mr. Blackford spared no pains nor expense to make 

 a most creditable exhibit. 



We dropped down there about noon and recognized many 

 prominent anglers, among whom were Mr. M. M. Backus', 

 Mr. Francis Endicott, Mr. Wm. Mitchell, Dr. S. M. Nash. 

 Mr, H. P. Wells, Mr. John D. Hewlett, Mr. G. M. Miller, 

 and others of New York; also Mr. Frank Dcnnison and 

 Hon. James Geddes, of Syracuse, Prof. A. S. Bickmore. of 

 the American Museum, and Mr. H. F. Douseman, of Chicago. 



Col. Cuyler sent some large German carp from Prospect 

 Park, Brooklyn, which he received from Mr. Blackford two 

 years ago, and which now weigh three pounds. Mr. James 

 Annin, Jr., sent some fine live specimens of trout, from one 

 to three years old, from his ponds at Caledonia, N. Y. 



Taking the exhibition as a whole it was equal to anything 

 in the past and superior to some. The great extent of terri- 

 kay from which the specimens were drawn made it an in- 

 structive study for those interested in the differences in trout 

 caused by food, water, etc., as well as in the different species. 

 These exhibitions are very valuable as object lessons in both 

 fishculture and ichthyology. 



BAIT-FISHING FOR TROUT~ 



FROM fly-fishing we pass by natural and easy transitions 

 to bait-fishing. And this is anent bait-fishing. Now, 

 would a man with any self esteem fish with bait? It depends 

 upon'circumstances. To my mind one who would fish with 

 bait when fly-fishing is available does not take a very high 

 rank among anglers. But there are circumstances when 

 bait-fishing is perfectly allowable. In Alaska the trout will 

 not rise to a fly, but that is no reason why the people there 

 should be debarred from a delicacy which is so near at hand. 

 A friend of mine, a naval officer, whose word cannot be 

 doubted, told me that about three years ago he was stationed 

 for sixteen months in Alaska, and one day in season a party 

 of officers went Ashing up one of the streams in their vicinity. 

 The}" used salmon roe for bait, and the three hooks, which 

 composed the party, caught, in round numbers, 250 trout 

 trout ("mountain trout" my friend called them), weighing 

 450 pounds. When this statement was first made to me I 

 admitted that I could "tow it alongside," but 1 could not 

 "hoist it aboard." My friend assured me it was true, and 

 when I intimated that* I thought they somewhat overdid the 

 business, he rather resented the aspersion, and explained that 

 the fish were all disposed of by the officers and crew of the 

 vessel to which he was attached. My friend, had several 

 varieties of flies with him, to which he gave a thorough trial, 

 hut with no result. Who can blame him, then, for descend- 

 ing to bait, from which he got considerable amusement, 

 when otherwise the fish his mess required, would have been 

 bought from some of the natives? 



Again, some of us in the East who go to the Adiroudacks 

 for our fishing, find that when the extreme hot weather 

 comes, our fish leave the lakes, ponds and larger streams 

 for the grateful seclusion of small, cool, shaded brooks. 

 These are too narrow and too much overgrown with alders 

 to allow the fly to be used. Shall we, then, at these times 

 give up our favorite fish ? I say no. Life, particularly life 

 in the woods, is too short to be long depris'ed of this deli- 

 cious edible. Besides, when one takes a long tramp through 

 the woods, it is pleasant to think there are some trout wait 

 ing for one at the end of the route. I don't want to be con- 

 demned, but I confess that I have spent days, not a few, 

 bait-fishing down some quiet brook. One day during the 

 past summer I took an early start, and with Andrew Rogers, 

 for company rather than guide, proceeded over four miles of 

 mountain trail, mostly uphill. It wa3 rather laborious, for 

 the many trees that had fallen across the trail duriug the 

 previous winter had not been cut out. But when we arrived 

 at our destination, I was amply repaid by the beauties of the 

 valley and the vivacity of the denizens of the little stream. 

 Our bait was angle worms and white grubs. 



I have delightful recollections of that day, though it does 

 not compare with many days when I have fished with the 

 fly. The beauties of nature are the same, fish you with fly 

 or worm. On this particular occasion I got home pleas- 

 antly hungry and pleasantly tired, and after supper and a 

 pipe I turned me in to such a slumber as one only knows in 

 the woods. The result of our combined efforts was 291 

 trout, of which Andrew caught 161 and 1 130. While prob- 

 ably none of our fish would weigh over a quarter of a pound. 

 none was below the regulation size. By the way, what are 

 the statistics as to the number caught by each, when a gen- 

 tleman and his guide go off fishing together? In this same 

 little brook in August, '81, three of us, fishing about an hour 

 of one evening and most of the next day, caught 368 fish. I 

 remember also that I caught a cold that lasted me for weeks. 

 We slept in a roughly-built shanty, each with a single blanket, 

 and that night the thermometer .went down to 44°. It was 

 rather disastrous, but we had nobody to blame but ourselves. 

 Doubtless the experience was of benefit. From all this, it 

 will be seen that when I can't get fly-fishing and can get 

 bait-fishing, I take latter, and take it gladly. And I hope 

 your readers will not blame me for it. And at this moment 

 my bones are aching for the time to come when I may be off 

 to the woods, where. I devoutly hope I may be able to get 

 both kinds of fishing. Sons Bois. 



