March 14, 1889.] 



FOREST AND STREAM. 



IBB 



Whether the hooks be large or small, see that they are 

 strong and securely fastened. In all salt-water fishing 

 one is liable to strike a large fish. When such a fish is 

 lost through weakness of tackle, even though it is hut 

 seldom, one does not soon forgive himself. The fish 

 which we lose may not all be large ones, but the largest 

 often do escape. Therefore, when snoods get worn and 

 lines tender, throw them away or give them to the chil- 

 dren. Where fish run generally of uniform size one is 

 apt to adopt a style of handling which will lose anything 

 unexpectedly large. Thus, last autumn when I was 

 catching haif-pound weakfish, I unconsciously got the 

 habit of striking on a bite and then holding the fish firmly 

 as he made his first struggle. This worked for small fish, 

 but when a large one bit he had broken my snood before 

 I appreciated the need of giving any line. When fishing 

 for weakfish with a float it is necessary to strike quickly 

 in order to take in the slack sufficiently for the stroke to 

 reach the hook. But when my bite was from a ten j>ound 

 shark, who took the bait off with a rush, I lost hook, float 

 and all. More watchfulness and sensitiveness on my 



{•art would have told me that this was no common puli. 

 n fishing in a current it is natural to let the pole point in 

 the direction of the line. Under these circumstances an 

 unexpected strong bite finds the fisherman without any 

 spring of the rod to ease the strain or give him time to 

 collect himself. 



It is in careful attention to the minutiae of his art that 

 the fisherman derives his chief satisfaction. Everything 

 should be arranged with express reference to the kind of 

 angling being done, and should embody his ripest ex- 

 perience. Eveiw particular, adjustment or method should 

 be able to explain itself , and should have its own history. 

 This gives interest and pleasure even when luck has 

 failed. We learn by our failures as well as by successes. 

 The true fisherman is forever learning. He has confi- 

 dence in his theories and practices, and yet he is con- 

 tinually changing both for something better. All seasons 

 and places are available for either plans or execution. 

 He can always either devise tackle or try it. 



While the writer feels the charms of the forests and 

 streams, and holds them to be tenderer, more delicate 

 and fuller than anything which the salt marsh or bay 

 can offer, just as the grass and flowers of the upland 

 meadows are finer than their counterparts by the 

 sea. yet sea fishing has its pleasures, and they are of the 

 same kind, though different in degree, as are the delights 

 of other angling. To arouse tliis interest in others more 

 than to increase their basket, has been the object of this 

 paper. . Penn. 



Notes from Savannah. — We are indebted to Mr. 

 Thomas Lee, who has just returned from a cruise, on the 

 Southern coast, for news from some of the points visited. 

 At Savannah, Georgia, the first ripe female shad seen by 

 dealers were three caught in Savannah River, Feb. .28. 

 The Yacht Club at Thunderbolt, near Savannah, has a 

 small pool, about 10ft. across and 3ft. deep, caused by the 

 overflow from an artesian well. We are informed that 

 the steward of the club placed a few striped bass about 

 (Jin. long in this pool last April. They were fed chiefly on 

 crabs and oysters, which they took freely, rushing partly 

 out of the water in their eagerness to seize the food. 

 Now the bass are about 20in, long and very stout. The 

 water never freezes, and the temperature does not vary 

 much. There is no kind of shelter for the fish. The 

 steward put four sheepshead in the pool, and one of them 

 which survived is now about 6in. long and very lively. 

 There are several river catfish also in the little inclosure. 

 The growth of the striped bass under the conditions 

 related is remarkable, and so is the success in keeping 

 a sheepshead in fresh water. At Body Island, Feb. 6, 

 there were no birds on the marshes except a few snipe. 

 Ducks were abundant, but excessively wild. 



Ftsb Protection by Anglers.— We give below an 

 illustration of the methods employed by an intelligent 

 body of Pennsylvanians in the protection of public prop- 

 erty. This association is ever active also in measures for 

 the. increase of the fish supply; its members have asked 

 the Commissioners to stock the Delaware and the Susque- 

 hanna with large-mouthed black bass. This notice is 

 sent out for posting: "The fish in the public streams of 

 the State of Pennsylvania belong to the citizens thereof , 

 and the Catching and destruction of fish by means of 

 nets and other illegal devices at any time, and especially 

 in the spawning seasons, is in defiance of the law, and in 

 violation of the people's rights. Every citizen should 

 demand the arrest of the violators of the fish laws, and 

 assist and encourage the prosecution of such offenders. 

 The Anglers' Association of Eastern Pennsylvania, No. 

 1020 Arch street, Philadelphia, will pay the sum of ten 

 dollars for every conviction for offense against the fish- 

 ing laws of Pennsylvania, and request the active and 

 earnest co-operation of all citizens in this matter." 



Trout in Nova Scotia.— Brooklyn, N. Y.— I have 

 read with much interest the discussion on the sawdust 

 question, I was "glad to see that "Fisher," of Kingston, 

 N. B., received, such an answer, as his disparaging re- 

 marks on Nova Scotia "troutlets" deserved. I have had 

 good fishing in New Brunswick, but for the past four 

 years have been going to Nova Scotia in preference. I 

 remember having whipped Pickett's Lake, near King- 

 ston, for three days in the summer of '81 without success. 

 Friends said that the trout were "Loyalist" fish and 

 would not rise to Yankee flies; but Mr. Scribner, of 

 St. John, who was there at the time, had no better suc- 

 cess. Last summer in Nova Scotia I hooked at one cast 

 two trout, weighing 5^ and 2-Hbs. My experience is that 

 the trout are larger and more abundant in Nova Scotia 

 than in New Brunswick. I send herewith a Halifax 

 Chronicle of the 22d ult. that has some pertinent remarks 

 on sawdust and governmental action relating thereto. — 

 P. B. V. 



Chesapeake Bay Fishes.— Investigations made at 

 Fortress Monroe, Virginia, March 1, showed the presence of 

 great numbers of small anchovies and spot, which were 

 chilled by the extremely cold weather and came ashore. 

 The fishermen were catching nothing in their traps except 

 a few alewives and menhaden. 



Nova Scotia Fishes. — Alewives and salmon were 

 caught at Tusket, N. S., March 5. This is the first appear- 

 ance for the season, and the earliest catch of alewives 

 ever known there. 



The Carp as Food.— If "H.," whose dislike of the carp 

 is so plainly stated in Forest and Stream of Feb. 21, will 

 take the trouble to read the articles on the results of caip 

 culture in the United .States published in the Bulletin U. 

 S. Fish Commission 1883, and the Report of the same com- 

 mission for 1884 he will find that he differs in his opinion 

 not only from us, but from a vast majority of persons 

 who have reared and eaten the carp. A reference to the 

 valuable treatise on pond culture by Carl Nicklas will show, 

 also, that the price of carp in Germany has increased 

 within the last twenty-five years from $7.50 per cwt. to 

 $15 and $t7.50 per cwt. Wallem's recent report on the 

 fresh fish trade will prove that in Dresden living carp 

 selluow for 15 to .20 cents per pound, while in Leipzig the 

 price is 22-i to 25 cents per pound. And this in a country 

 which has wall-eyed pike, whitefish, trout and salmon! 

 It is out of reason to expect a carp to capture lively 

 animals, for its teeth are in the pharynx, and intended 

 for crushing tender vegetables. It is a slander to say 

 that it will thrive only in low surroundings. The best 

 carp sold in some Eastern cities are from rivers whose 

 waters are pure enough to support bass, and occasionally 

 a salmon. The carp, however, was not introduced to 

 take the place of game fishes; it was intended primarily 

 lor the warmer waters in which the Salmonidas are not 

 found, and it was expected to furnish an abundance of 

 good food at small cost. A fish of this kind has an im- 

 portant place in our economy, entirely different from 

 that of the leaping salmon and the rushing trout — a place 

 worthily filled, and with satisfaction to those who have 

 learned how to care for it and when to eat it. 



Wire Leaders.— Mt. Vernon, N. Y., March G. — Editor 

 Forest and Stream: For some time past I have been 

 watching your fishing notes to see if any report would be 

 made by some one who has used the wire leader intro- 

 duced last year by Shipley & Co. Will not some one 

 who has tried it and knows tell the rest of us how it 

 worked ? I did not know about the affair until too late 

 to give it a trial, but if it is practical it will be one of the 

 most convenient articles of tackle that has been brought 

 out in a long time. No more soaking; then also one can 

 tie leaders with scarcely more trouble than if they were 

 so much string. If those who have used novelties would 

 only speak out and say whether or not they were good, 

 more money would be spent for things really worth buy- 

 ing and less spent on plausible trash. Almost every 

 angler tries something new each year, but no one is able 

 to test all the novelties brought out each year. — Lance- 

 wood. 



Brook Trout in Nebraska. — The U. S. Fish Com- 

 mission has received from Long Pine Creek, Nebraska, a 

 brook trout (Salveliniis fontinalis), three years and seven 

 months old, measuring 17in. in length and weighing 21bs. 

 4oz. This is part of the product of eggs sent out by the 

 Commission four years ago. The size of the specimen is 

 remarkable, and is, perhaps, unequalled except in Colo- 

 rado, where the species thrives wonderfully. 



Canada Black Bass. — Day Mills, Algoma, Can. — I 

 have put up a little cottage here to accommodate black bass 

 fishermen. The "Walton Villa" is on the shores of Big 

 Basswood Lake, and the fishing is good. — G. F. Dyer. 



FISHING RIGHTS IN PRIVATE WATERS. 



NEW HARTFORD, Oneida Co., N. Y., March 9.— 

 Editor Forest and Stream: I inclose a recent de- 

 cision of Referee Northup, of Washington county, on 

 the subject of the right to take fish from waters held by 

 private ownership in cases where the law prescribes open 

 and close seasons. The decision is one of great interest 

 and importance, and the opinion given is able and search- 

 ing. It will be doubtless of much interest to your readers. 



R. U. Sherman. 



Supreme Court. The People of the State of. New York against 

 Aden Mclntyre. L. II. Northup, Referee. 



Tbis is an action to recover penalties for violation of section 21 

 of the Laws of 1879, as amended by chapter 619 of the Laws of I88T, 

 and prosecuted by the District Attorney of Washington county, 

 by order of the Fish and Game Protector. It was admitted on the 

 trial that in the year 1887, 1888, the defendant caught and killed 

 and had in his possession ten black and Oswego bnss and gill nets 

 in and near Cossayuna Lake, in the town of Argyle, Washington 

 county, N. Y,, contrary to the said statute— if said statute applies 

 to said lake. 



There is no conflict of evidence in the case, and the only ques- 

 tions arising are questions of law upon the conceded facts. Cos- 

 sayuna Lake is about three miles in length, about one-fourth 

 mile wide, with one island of twenty acres and two small islands, 

 and said lake is inhabited by black bass and Oswego bass-. The 

 lake is supplied with water from several small streams running 

 into it (and as 1 infer, partly from springs). Its waters are dis- 

 charged by a small stream running into Mud Pond, and from 

 there by a stream into the Batten Kill, and thence into the Hud- 

 son River. The lake is within the bounds of tlie "Argyle Patent" 

 granted in Lot, and the grant was absolute, reserving only gold 

 and silver mines and pine trees suitable for masts in the royal 

 navy. The owners of the land bordering on the lake also own the 

 lands under the waters of said lake. They hold by mesne con- 

 veyances from the original patentees and are the absolute owners 

 in fee of land adjoining the lake and lands under waters of the 

 lake as fully and absolutely as is possible for any person to own 

 lands on which are ponds or small streams of water. 



The defendant is one of the thirteen several owners of lots 

 bordering on and including lands under the waters of said lake. 

 Said lake contains fish, and the land owners have in all from 

 twenty-five to fifty small row boat,?, used for pleasure and for 

 Ashing. The lake is a resort for fishermen and there are three or 

 four houses for hoarders and guests on the shores of the lake, and 

 the lake is in fact a place of public resort for fishing aud pleasure. 

 The lake and its outlet are not what is known as navigable waters 

 or streams, and all are within said patent. 



The defendant raises the questions: 



1. "That by the laws of this State fishing with a net is not and 

 never has been prohibited in Cossayuna Lake." 



2. "That if the Legislature of this State have enacted a law with 

 intent to prohibit such fishing, the same is unconstitutional and 

 void, as destructive of vested rights and contraryto theprovisions 

 of Section 18 of Article I. of the Constitution of this State." 



The defendant's counsel insists said act applies only to the 

 waters owned by the State of New York and to uavigabie waters, 

 and does not apply where the waters are owned by individuals. 

 Cossayuna Lake is not owned by the State hut is owned by indi- 

 viduals. Said Section 31, as amended by Chapter 619 of Laws of 

 1887, provides: "No person shall catch or kill any black bass in 

 the waters of: Lake Mohopee, or of Columbia county * * * be- 

 tween the first day of January and the first day of duly, or in 

 Lake George * * * between the first day of January and the 

 first day of August, or catch or kill any black bass, Oswego bass 

 * * * in Oneida Lake between the first day of March and the 

 thirtieth day of May, except in Lake Erie * * *." 



"Any person violating any of the provisions of this act shall he 

 deemed guilty of a misdemeanor, and in addition thereto shall be 

 liable to a penalty of ¥10 for each fish." 



Section 24 of said act, as amended by Chapter 11 oi La ws of 1886, 

 provides penalties for the use of nets, etc., in unlawful fishing, j 

 In construing a law it is proper and often necessary to see what i 

 was the object to be obtained by the law, and why it was passed 

 and for what purpose, and what was the intention of the Legisla- 



ture in passing the law, and also under what power of authority 

 the Legislature assumtd to act. For what purpose the courts will 

 take judicial notice of the general condition of affairs as relates 

 to the public, and matters of general notoriety. When the object 

 and purpose of the law has been ascertained, and the law is one 

 within the power of the Legislature to pass, it is the duty of the 

 court to give such construction to the law a3 will carry out its 

 general purpose and object, unless restrained by judicial con- 

 struction or by the absence of words necessary to declare its ob- 

 ject, and courts will not yield or waive the substance of a law for 

 mere matter of form, nor by reason of the Legislature using the 

 words "waters of" instead of "waters in" this State. It is a mat- 

 tor of history that the Legislature has sought, for years to secure 

 and enforce the cultivation of various kinds of fish, including 

 black bass and Oswego bass, for the production of too 



The courts will take judicial notice of the various laws passed 

 in relation thereto. The State pays annually large sums for the 

 production and propagation of fish, and to furnish fish for stock- 

 ing any wafers in the State. 



What force is to be given to the words, "or in any other waters 

 of this State?" The contention of defendant's attorney is that it 

 includes only the waters owned by the State. If this contention 

 is coriect the law would be a nullity as to a large part of the 

 Slate. Section 18, as amended by chapter 618, of the Laws of 

 18S7, provided; "No person shall at any time kill or catch, 

 or attempt to kill or catch any speckled trout, brook trout, 

 salmon trout, or laudlocked salmon, with any device save 

 that of angling with line or rod held in the hand, except in 

 Lake Ontario and the Niagara River, and in waters which are 

 wholly private, and iu the latter only then by permission of the 

 owner thereof. * *" A violation of theprovisions of this section 

 is declared a misdemeanor, and liable to a penalty of $25, and $10 

 additional for each fish taken. This section defines "private 

 waters" for the purposes of sections 18 and 19 only, "to mean 

 ponds or streams fed wholly by artificial sources, or by springs 

 existing upon the same farm or tract belonging to the owner or 

 proprietor thereof; or water brought by artificial pipes or chan- 

 nels other than natural, into artificial ponds or reservoirs of the 

 owner or proprietor. " Section 19 provides that "No person shall 

 catch or attempt to catch, or kill, or expose for sale, or have in 

 possession after the same has been caught or killed, any speckled 

 trout, brook trout, California trout or brown trout, save only 

 from the 1st day of April to the 1st day of Septembei\ except in 

 the Forest Preserve. * *" 



Section 19 further provides that "any person who shall at any 

 time catch or take any brook trout from any of the waters of this 

 State, less than six inches in length, shall immediately place such 

 trout back in the waters from which it was taken, and shall use 

 due care not to kill or injure the same, and the catching of such 

 fish by intent is hereby prohibited." The sale of any trout less 

 than six inches in length is prohibited. A violation of any of the 

 provisions of this section is declared a misdemeanor, and person 

 guilty is liable in addition thereto to a penalty. From the fore- 

 going provisions it is beyond doubt that the Legislature intended 

 to make the provisions of section 21 applicable to all waters in the 

 State of Now York, whether owned by the State or by individuals. 

 The only other question is, has the Legislature power to pass such 

 an act? 



Article X. of the Constitution of the L'nited States is "The powers 

 not delegated to the United States by the constitution nor pro- 

 hibited by it to the States, are reserved to the States respectively, 

 or to the people." Section 1 of Article III. of the constitution or 

 New York is "The legislative power of this State shall be vested 

 in a Senate and Assembly." By this section all legislative power 

 in the State is vested in the Legislature S. N. Y. 472,474. In the 

 people ex rel agst Flagg Hi N. Y. 401,404, it is said "All legislative 

 power is conferred upon the Senate and Assembly; and if an act is 

 within the legislative exercise of that power it is valid, unless 

 some restriction or limitation be found in the constitution itself. 

 The distinction between the United States Constitution and our 

 State Constitution is, that the former confers upon Congress cer- 

 tain specified powers only, while the latter confers upon the Leg- 

 isla ture all legislative power. In the one case the power specifi- 

 cally granted can only be exercised. In the other all legislative 

 power not, prohibited may be exercised. 



There is no express prohibition of the power to legislate as to 

 fish and fishing; nor can a, prohibi tion be implied, unless the act 

 comes clearly within some power denied to the Legislature. The 

 counsel for defendant relies upon section IS of article 1 of the 

 constitution of this State, "but nothing contained in this consti- 

 tution shall affect any grants of land within this State made by 

 the authority of the said King or his predecessors; or shall impair 

 * * any other right of property . * * " I have found both as 

 matter of fact and of law that defendant and other land owners 

 are the absolute ownors of the lands and waters of Lake Cossa- 

 yuna as fully as any one can own lands on which there are ponds 

 and streams. No right of property in defendant has been im- 

 paired—his rights of property remain the same as they were 

 Before the passage of the act in question. 



The power of the Legislature to pass the law in question is 

 decided in Phelps vs. Racy, 60 N. Y. 10. 't hat was an action to 

 recover penalties under chapter 721 of Laws of 1871, for having in 

 his possession and exposing for sale, quail and pinnated grouse. 

 The answer admitted the possession and exposing for sale, and 

 averred that the same was in his possession in I he month of De- 

 cember, 1872, when the killing in this State was not prohibited, or 

 it was received from the States of Minnesota and Illinois where 

 the killing was legal at the time. The plaint iff demurred to the 

 answer on the ground that the fact did not constitute a defence 

 and the General Term sustained the demurrer. Defendant ap- 

 pealed to tlie Court of Appeals and that court affirmed the judg- 

 ment. The court said, page 13, "The mandate is that any person 

 having in his or her possession between certain dates, certain 

 specified game killed, shall be liable to a penalty. The time when 

 or the place where the game was killed or when brought within 

 the State, is not made material by the stat ute, and we have no 

 power to make it so." "The penalty is denounced against the 

 selling, or possession after that time, irrespective of the time or 

 place of killing. 



"Here the property was acquired subsequent to the passage of 

 the act and with the presumed knowledge of its provisions and 

 conditions. The Legislature may pass many laws, the effect of 

 which may be to impair or even destroy the right of property." 

 Private interest must yield to the public advantage. All legisla- 

 tive powers, not restrained by express or implied provisions of 

 the constitution, may be exercised. The protect'on and preser- 

 vation of game has been secured by law in civilized countries 

 and may be justified on many grounds, one of which is for the 

 purposes of food. The measures best adapted to this end are for 

 the Legislature to determine, and courts cannot review its dis- 

 cretion. If the regulations operate in any respect unjustly or 

 oppressively, the proper remedy T must be applied by that body. 

 Some of the provisions of the act in question might seem to one 

 versed in the mysteries of the subject, unnecessarily stringent 

 and severe, but we cannot say that those involved in this action 

 are foreign to the objects sought to be obtained, or outside of the 

 wide discretion vested in the Legislature. 



The late case of Bcrthoff vs. O'Reilly, 71 N. Y., 509, reaffirms 

 the power of the Legislature and holds that a law may not be 

 declared wticonstitutional or void because deemed to he opposed 

 to natural justice and equity. See also Gould on Waters, sections 

 18:i, 253, and cases there cited. (New ed.). At page 521, 74 N. Y., 

 it is said: "That a statute impairs the value of property does 

 not make, it unconstitutional. All property is held subject to the 

 power of the State to regulate or control its use t o secure the gen- 

 eral safety and the public welfare" 



In 7 Cushing (61 Mass.), 84, it is said: "All property is held sub- 

 ject to those general regulations which are necessary to the com- 

 mon good and general welfare." So in the case before us, the 

 Legislature in its discretion has decided that the public good and 

 the' public welfare requires that no black bass or Oswego bass 

 shall be caught or killed between the first day of January and the 

 thirtieth day of May, in any of the waters in the State of New 

 York. The defendant has knowingly violated tbis law and must 

 pav the penalt y. The proof shows ten fish caught and killed by 

 defendant iu violation of the law, and the people are entitled to 

 a judgment for one hundred dollars damages and costs. 



THE BURLINGTON "ELI." 

 The formerly popular Vestibule Fast "Eli" Train of the Burl- 

 ington Route 'has been resumed between Chicago and Kansas 

 City, St. Joseph and Atchison, leaving Chicago daily at 5:30 P. M. 

 The Burlington's Vestibule Trains to Omaha, Denver and St. 

 Paul will continue as before. They are the best trains between 

 Chicago and the points mentioned. Tickets can he obtained of 

 any ticket agent of connecting lines, or by addressing P. S. 

 EiisTis, G. P. & T. A., C, B. & Q. R. R... Chicago, 111.- Adv. 



Forest anp Stream, Box 2,832, N. Y. city, has descriptive illus- 

 trated circulars of W. B. Lefhniweirs book, ""Wild Fowl Shoot- 

 ing," which will be mailed free on request. The book is pro- 

 nounced by "Nanit," "Uloan," "Dick Swiveller," "Sybillene" and 

 other competent authorities to be the best treatise on the subject, 

 extant. 



