Forest and Stream 



A Weekly Journal of the Rod and Gun. 



Terms, p a Year. 10 Cts. a Copy. ) 



Six Months, $3. j 



NEW YORK, OCTOBER 4, 1888. 



I VOL. XXXI.— No. 11. 



I No. 318 Broadway, New York. 



CORRESPONDENCE. 

 The Forest and Stream is the recognized medium of entertain- 

 ment, Instruction and information between American sportsmen. 

 Communications on the subject to which its pages are devoted are 

 respectfully invited. Anonymous communications will not be re- 

 garded. No name will be published except with writer's consent. 

 The Editors are not responsible for the views of correspondents. 



AD VERTISEMENTS. 

 Only advertisements of an approved character inserted. Inside 

 pages, nonpareil type, 30 cents per line. Special rates for three, six, 

 and twelve months. Seven words to the line, twelve lines to one 

 Inch. Advertisements should be sent in by Saturday previous to 

 issue in which they are to be inserted. Transient advertisements 

 must invariably be accompanied by the money or they will not be 

 Inserted. Reading notices $1,00 per line. 



SUBSCRIPTIONS 

 May begin at any time. Subscription price, $4 per year; $2 for six 

 months; to a club of three annual subscribers, three copies for $10; 

 five copies for $16. Remit by express money-order, regi ered letter, 

 money-order, or draft, payable to the Forest and Stream Publishing 

 Company. The paper may be obtained of newsdealers throughout 

 the United States, Canadas and Great Britain. For sale by Davies 

 & Co., No. 1 Finch Lane, Cornhill, London. General subscription 

 agents far Great Britain, Messrs. Davies & Co., and Messrs. Samp- 

 son Low, Marston, Searles and Rivington, 188 Fleet street, London, 

 Eng. Brentano's, 17 Avenue de l'Opera, Paris, France, sole Paris 

 agent for sales and subscriptions. Foreign subscription price, $5 

 per year; $2.50 for six months. 

 Address all communications. 



Forest and Stream Publishing Co. 

 No. 318 Broadway. New York City. 



CONTENTS, 



Editorial. 



Fishing Rights. 



The Tcbique Murder. 

 The Sportsman Toukist. 



An Outir.g in Lake County. 

 Natural History. 



Snakes and Their Young. 



Otters in Europe and America. 

 Game Bag and Gun. 



Woodcock. 



"Which is Most Savory? 



Some, more Bear Stories. 



One Good Man Gone Wrong. 



Drop of Stock. 



Chicago and the West. 

 Camp-Fire Flickerings. 

 Sea and River Fishing. 



Large Maskinonge in Canada. 



Sword B sbi n<? off Block Island. 



The Chicago Fish Display. 



Chicago and the West. 



Trout in Maine. 



The Current River Region. 



The Tobique Murder. 

 Fishodlture. 



Breeding the Grayling. 

 The Kennel. 



The London (Ont.) Show. 



The Kennel. 



The History of a Mushroom. 



Indiana Field Trials. 



St. Paul Dog Show. 



Our Boston Show Report. 



Mr. Anthony's Hallucination. 



Public Judging at Birming- 

 ham Dog Show. 



Judging at Buffalo. 



Beagles and Foxhounds. 



Lessons from Buffalo. 



Dog Talk. 



On to Richmond. 



Kennel Managemen t. 



Kennel Notes. 

 Rifle and Trap Shooting. 



Range and GaUery. 



The Trap. 



The Tucker System. 



Atlantic Ammunition Win- 

 ners. 

 Yachting. 



Grayling— Sa che i o Matches. 



Quaker City Y. C. 

 Canoeing. 



The A. C. A. Meet of 188S. 



Yonkers C. C. Regatta. 

 Answers to Correspondents. 



THE TOBIQUE MURDER, 

 'T^HE well-known tendency among certain classes to 

 seek a palliation of the offenses of those who are 

 charged with capital crimes is naturally manifesting 

 itself in behalf of the two men Trafton and Phillipine, 

 now on trial in Andover, New Brunswick, for the murder 

 of Mrs. Howes on the Tobique River. The press dis- 

 patches tell us that there is a strong undercurrent of 

 sympathy for the accused. This sentiment is based on a 

 feeling that, the assassins were driven to their deed by 

 irritation at the unjust usurpation of certain natural 

 rights of fishing; and that they were infuriated because 

 victims of a vicious system of leasing, which robbed them 

 of their privileges, for the benefit of rich anglers from 

 abroad. They were "village Hampdens," making a stand 

 for liberty, reason their sympathizers; and this argument 

 is said to have so much weight that a verdict of man- 

 slaughter instead of murder is looked for. 



It appears, however, that the trouble between the ac- 

 cused men and the Howes party had nothing to do with 

 the leasing of fishing rights. Phillipine was enraged 

 against Major Howes, because the Major had ordered 

 him away when spearing salmon. The spearing was un- 

 lawful. The law prohibits it. No one is permitted to 

 spear. The law applies to all waters and to all persons. 

 Lessees of streams are forbidden to spear. When Philli- 

 pine was engaged in taking fish by this mode he was 

 violating a law common in its application to all. In 

 wreaking his revenge on those who had interfered with 

 him in his lawless salmon spearing, therefore, he was not 

 asserting the exercise of natural privileges that had been 

 taken from him and given to another. He was not vin- 

 dicating the rights of natives against the usurpations of 

 outsiders. 



Whether a poverty-stricken family should go hungry 

 for the lack of a speared salmon is one question, but to 

 manufacture sympathy for these men on the pretext that 

 their crime partook of the nature of an act of self-defense 

 against a tyrannical system of river leasing is clearly not 

 admissible, 



FISHING RJGI1TS. 

 Rdittrr Forest and Stream: 



I Inclose a clipping from the Boston OloM of July 30, which ex- 

 plains itself: "To the. Ktfitor of the Globe: Has the public a legel 

 right to fish, by wading in, or from a boat on a natural stream or 

 pond, leased or stocked by private parties, if it can be done with- 

 out trespassing on the grounds owned cr leased by said private 

 parties?— Angler. No; it's the fishing that constitutes the tres- 

 pass.— People's Lawyer." "Angler" is not quite satisfied, how- 

 ever, and would like the editor to answer the following questions: 



First— Is it true that fishing constitutes the trespass? 



Second— If so, does the owner of the land bordering one side of 

 a brook, own to center of said brook ? 



Thir l— Is it trespassing, or illegal to fish from a highway 

 bridge, crossing a "posted" brook? 



Fourth— If a "posted" brook empties into tidewater, is it tres- 

 passiug to ascend the stream in a boat, and fish from same? 



Fifth— Is there a common law governing such cases, or are they 

 decided by State legislation? 



An answer to these questions through the columns of the 

 Forest and Stream will confer a favor upon the undersigned, 

 and also will be of interest to others. Angler. 



The property which exists in game under the common 

 law has been fully explained in these columns. While a 

 man may have absolute ownership of domestic animals, 

 he can have only a qualified property in those of a wild 

 nature while they are alive. The reason is that wild 

 animals in captivity have a tendency to return to their 

 original surroundings. If they escape the property in 

 them is lost. When killed, however, they are the sub- 

 ject of absolute property. The owner of land also has a 

 qualified property in game while it is on his land, and 

 has the exclusive right to pursue and take it. If a tres- 

 passer captures or kills game it becomes at once the 

 absolute property of the land owner, who may recover it 

 by legal proceedings if necessary. The land proprietor's 

 property in living game grows out of" his ownership of 

 the soil, and terminates when the game passes off his 

 land. This rale includes the ownership of and the right 

 to take fish. Under the common law the right of fishing 

 depended upon and was co-extensive with the proprietor- 

 ship in the soil, unless specially extended by government 

 grant or by a long-continued use which had ripened into 

 a prescriptive right. It follows that to determine the 

 common law right of fishing in any case, we must ascer- 

 tain the ownership of the soil under the water. 



It was a settled principle of the common law, that the 

 owner of lands on the banks of fresh-water streams and 

 rivers, above the ebbing and flowing of the tide, had the 

 exclusive right of fishing, as well as the right of property 

 opposite to their respective lands to the middle of the 

 stream. 



' Where a person owns the whole of the soil over which 

 a water course runs, in its natural course, he alone is 

 entitled to the use and profits of the water; and where a 

 person owns only the land upon one side of a watercourse, 

 his interest in the soil, and his right to the water, extends 

 to the middle of the stream. Concomitant with this in- 

 terest in the soil of the beds of watercourses, is an ex- 

 clusive light of fishery; so that the riparian proprietor, 

 and he alone, is authorized to take fish from any part of 

 the stream included within his territorial limits." 



To such an extent did a fishery attach to the land under 

 the common law, that it was held to be a tenement, and 

 subject to dower, so that a woman was entitled to one- 

 third of the profits of a fishery of which her husband died 

 seized. An action in ejectment would lie for its recovery 

 and a person who injured a fishery could be sued for 

 trespass. 



The right of fishing in streams and unnavigable rivers 

 was subject to the qualification of not being so used as to 

 injure the private rights of others; and it did not extend 

 to impede the passage of fish up the stream by means of 

 dams or other obstructions. 



A person might have an exclusive right of fishing in a 

 navigable river or tide water by special grant from the 

 crown, but not otherwise. On the other hand, in rivers 

 not navigable (and in the common law sense only rivers 

 in which the tide ebbed and flowed were deemed naviga- 

 ble) the owners of the soil on each side had the right of 

 fishery. It was an exclusive right and extended to the 

 center of the stream opposite their respective lands. 



Such was the common law, and generally it may be 

 said to maintain throughout this country, though modi- 

 fied more or less by the laws of the various States. 



The opinion which seems to prevail in the minds of 

 many people that in this country the public may fish any- 

 where, was refuted by the United States Circuit Court in 

 Rhode Island as far back as 1828. An action was brought 

 against the defendant for trespass for entering the plain- 



tiff's land and taking fish from his millpond. The prin- 

 cipal question was whether the plaintiff, who had a long 

 lease of the land, had any property in the fish, and the 

 court held that, all the land having been leased to the 

 plaintiff, the water and the fish therein passed to him as 

 incidents to the lease. 



About the same time the Supreme Court of Massachu- 

 setts delivered a similar opinion. The defendant came 

 upon the plaintiff's land and caught fish from his pond. 

 When an action for trespass was brought the defendant 

 offered to prove that the pond in which the fish were 

 caught was merely an enlargement of a stream of water 

 produced by the plaintiff's dam; that the stream was a 

 natural stream large enough for the sustenance of fish; 

 and that the inhabitants of the vicinity had from time 

 immemorial taken fish in the pond and stream, without 

 any interruption from the plaintiff or any of the previous 

 owners. But the court held that "the law does not take 

 notice of the right of fishery in small streams and rivu- 

 lets any further than to secure to owners of the banks of 

 such streams the right of taking fish therefrom. If the 

 stream is not navigable for boats or any water craft, the 

 owner of the land can exclude every one from the right 

 of fishing: and therefore it is that the Legislature, in 

 establishing the right to occupy such streams for the use 

 of mills have made no provision in regard to fish, except 

 where there is communication with the sea or salt water, 

 through which fish from that element have been wont to 

 pass into the fresh- water streams and ponds to cast their 

 spawn and multiply their species. There is no such gen- 

 eral right as is suggested by some of the facts proposed to 

 be proved. The custom is not one that could be sustained 

 in law; for a custom to take anything from another's 

 land, or for a profit a prendre, is not a lawful custom." 



Our correspondent writes from Massachusetts and an 

 answer to his inquiry must be found in the laws of that 

 State. At an early date the Massachusetts Legislature 

 assumed over its fisheries a control that cannot be ques- 

 tioned now. It has modified the common law in import- 

 ant particulars. The language of Chief Justice Parker, 

 in an early case, is: "It has been argued that, as the fish- 

 ery in rivers not navigable belongs to the proprietors of 

 the banks of the rivers, the Legislature had no constitu- 

 tional right to divest them, and vest the franchise in the 

 inhabitants of the town through which the river passes; 

 and upon the principles of the English common law, the 

 argument is well founded; but the constant course of 

 legislation upon this subject from the first settlement of 

 the country, we think has qualified this right, so far as to 

 subject it to the control of the Legislature in the manner 

 and to the extent it has been immemorially exercised. 

 The colonial, provincial and constitutional legislatures 

 having exercised the right for the public good of regu- 

 lating the fisheries in the several towns, the owners of 

 several fisheries and of dams across rivers held their 

 property subject to such regulations as the Legislature 

 should from time to time, for the preservation of fish, 

 prescribe." 



A colonial ordinance gave a common right of fishery in 

 all "great ponds,'* that is, ponds of more than ten acres 

 in extent, unless appropriated by the Legislature, or 

 towns acting under the authority of the Legislature. 

 This right has been maintained to the present day, except 

 that "great ponds" are now ponds of more than twenty 

 acres in area. 



The Massachusetts statutes provide that the fishery of 

 any pond, more than twenty acres in area, shall be pub- 

 lic, and all persons shall be allowed reasonable means of 

 access to such ponds for the purpose of fishing. 



That the riparian proprietor of any pond, the area of 

 which is not more than twenty acres, and the proprietor 

 of any pond or parts of a pond created by artificial flow- 

 ing, shall have exclusive control of the fisheries therein. 



That a riparian proprietor may, within the limits of 

 his own premises, inclose the waters of a stream not 

 navigable for the cultivation of useful fishes, provided he 

 furnishes a suitable passage for migratory fishes frequent- 

 ing such waters. 



That fishes artificially propagated or maintained shall 

 be the property of the person propagating or maintaining 

 them. Fines ranging from one to fifty dollars shall be 

 imposed upon any one who, without the permission of 

 the proprietor, fishes in that portion of a pond or stream, 

 or other water in which fishes are lawfully cultured or 

 maintained. 



Judge Endicott thus construed the statute relating to 

 great ponds: "It was the evident intention of the Legis- 



