FOREST AND STREAM 
[Oct, 15, 1898. 
witches, and the Colonel came limping in. He had been 
hurrying on, had caught his foot under a root, and m 
falling had turned his ankle, and it was paining him. 
He wore boots, and could not bear to have the boot on 
the injured foot pulled off. "Cut it," said he, and I had 
it off in short order. His ankle was swollen, and as he 
could not walk through the miles of brush to the horses 
there was a question what was to be done. Joe offered 
to carry him out on his back, but I decided that Joe should 
see to getting the bear out of the woods and leave the 
Colonel to me. 
I had seen wounded men carried off the field in a 
blanket slung between two muskets, and the Colonel 
must go in an easier manner than clinging to a man, 
"pick-a-pack," We had axes and rope. Two stout 
poles laid 2ft. apart were laced with rope; twigs were laid 
lengthwise on the litter and then a bed of Spanish moss 
was made on the twigs. I would have liked the bear skin 
to top it off with, but that was needed to keep the bear 
meat clean. Joe detailed two strong men and an axe- 
man to clear the way, and we laid the Colonel on the 
improvised litter and started. Joe was left to dress the 
bear, wait for the return of the men with the litter and 
take the bear out on it to a wagon, which was in wait- 
ing- 
We picked up the Colonel's rifle on the way out, and as 
soon as we came to water I wrapped up his ankle and 
soaked the bandages, which were handkerchiefs, neck- 
ties and his stockings. Our axeman cleared the way 
through the brush for two men abreast, and when we 
came to the horses a discussion arose. 
"Riding home, Colonel," said I, "with your leg hang- 
ing down will increase the inflammation in your ankle 
I am not a surgeon, but I know that; I don't know 
whether your trouble is a dislocation, a fracture or a 
strained tendon, but I fear that a ride, which I estimate 
as at least ten miles, in the saddle will not only add 
to your suffering, but may defer your ultimate recovery." 
"Well," replied the Colonel, "if I go back in that lum- 
ber wagon with the bear, I will either sit on the seat 
and with my leg down get more jolting than I will on 
Caliph, one of the best saddle horses in the State. Or, 
if I have a bed made beside the bear I will not only 
have a dislocated ankle for Dr. Gordon to attend to, but 
there will be curvatures and dislocations of the spine to 
be corrected. I will ride." 
I was overruled. When the Colonel was disabled I 
thought myself in command. Fortunately George came 
to the rescue and suggested: "Suppose you ride woman 
fashion, grandfather, and put your injured leg over the 
pommel?" That settled the question. And in that way 
we went home. 
The sun had gone down before we reached the man- 
sion, and supper was awaiting us. Dr. Gordon was there 
before us, having been sent for by a special messenger, 
and as there was no immediate danger he waited until 
after supper to examine his patient. In the meantime 
I examined the Doctor. He was stout, reserved, fifty 
at least, and had a .glass eye. This defect was only appar- 
ent when he looked directly at you. but as he compli- 
mented meon the manner in which inflammation had been 
kept down in the woods and on the way home, I saw 
that he was willing to grant to a layman a little knowl- 
edge of "first aid to the injured." 
Dr. Gordon. 
Having put the Colonel to bed and ordered his supper 
sent him, the Doctor and I joined the family at the even- 
ing dinner. The talk was naturally upon the hunt, in 
which the boys occupied the center of the stage. I 
took a dislike to the Doctor because of his extreme 
punctiliousness, his deliberate speech and his general 
manner, all of which I mistook for affectation, a thing 
that is not excusable in a man who has reached the time 
of life when he debates whether he shall shave or let it 
grow. There is an indefinable something about a man 
which attracts or repels at the first contact, and as often 
reverses the verdict after further acquaintance. 
Said George: "Jack missed his first shot, and so did 
I, but I didn't kill a dog." 
"What does a cur amount to, anyway?" Jack hotly re- 
plied. If I'd 'a' killed Bob or Dan when shooting wood- 
cock that would have been something to talk about; but 
a cur or two from the negro quarters are not worth 
mentioning." 
George, who, as I have said, was at the "disagreeable 
age," answered: "You happened to kill the bear at your 
second shot, with a cooler head to coach you. If I 
had a second shot I might have done the same, without 
killing a dog." 
As a guest I was uneasy, and I noticed that the Doc- 
tor was, but to our relief Mrs. H. quietly said: "Boys, 
remember that the table is no place to bring quarrels; 
there must be no more talk about the hunt until you 
leave the table. Doctor, will you be helped to more of 
the fowl? Will you, Major?" 
"Blessed are the peacemakers!" We left the table 
without allowing the boys to mar the harmony, owing 
to their early training under a most excellent mother. 
In the evening Dr. Gordon and I met in the room of 
Col. B. The Doctor still addressed me as "Sir," and I 
soon learned that that was a term which was common in 
the South, and thought no more of it. If a man in 
New York should begin a sentence with "Sir! I re- 
ceived your note," etc., I would think that there was 
trouble brewing. As my dislike of Dr. Gordon was 
merely a temporary one, not based on any reason, it 
soon passed, and after we had summoned Joe to look 
over the wounded dogs by lamplight and the Doctor had 
attended to them as carefully as if they were human, I 
knew more of him, 
In addition to the one dog killed by Jack and one by the 
bear, the casualties included three broken legs, which 
were set; about a dozen cuts, which needed a stitch or 
two, and an assortment of cuts and bruises which time 
would heal. These things attended to, we took a look 
at the bear, as it hung in an outbuilding. It was a big 
fellow, fully 5ft. in length, and probably weighed close 
to 400lbs. 
It was time that I took my leave, but both the Colonel 
and the Doctor so strongly urged me to stay a few days 
longer that I complied. 
[TO BE CONTINUE!).] 
Closed Trout Brooks. 
Opinion of the Supreme Court of Vermont Regarding the 
Constitutionality of Section 4,568, Chapter 189. 
(Opinion filed July 20, 1898.) 
STATE V. THERIAULT, ROSS, C. J. 
The respondent excepted to the judgment of the city 
court of the City of Montpelier, holding, on demurrer, 
the complaint of the State's attorney sufficient. The 
complaint is in three counts. They all charge him with 
illegally fishing in a stream known as Hale's Brook, on 
kind owned by George Hale in the county of Washing- 
ton which brook flows into the Winooski River, a boat- 
able stream. Each count alleges that the brook had 
been stocked with trout by the Fish and Game Com- 
missioners and duly posted and advertised agreeably to 
V S Sec 4,568. The first count alleges that this was 
done 'with the consent of George Hale, the owner of 
the land over which the brook flows. The other two 
counts do not allege any such consent. 
V S 4568. reads: "When the Fish and Game Com- 
missioners place fish in a pond or stream they may 
prohibit fishing therein, or in specified portions there- 
of for a period not exceeding three years, by posting 
notices to that effect conspicuously upon the banks 
thereof and publishing such notice three weeks succes- 
sively in a newspaper published in the county where 
such" waters are located; if a person fishes or attempts 
to fish in such waters within the time specified, he shall 
be fined $50. if prosecution is commenced within six 
months after the offense is committed." 
V S 4567 reads: "Waters stocked by the Fish and 
Game Commissioners shall thereafter be treated as pub- 
lic waters, but any person who might otherwise make 
the same a private preserve or posted waters may do so 
at the expiration of five years from the date of filing, 
with the Fish and Game Commissioners, a written no- 
tice of his intention so to do." 
By V S 4565, the Fish and Game Commissioners 
are authorized, at the expense of the State, among 
other things, to introduce trout, shad, salmon and other 
good varieties of fish into such streams, lakes and ponds 
within the State, not private preserves or oosted waters 
as they deem suitable to the successful cultivation of 
fish V S., 4,562, defines "private preserve, posted 
waters" and "public waters" as follows: 'Private pre- 
serve- a natural pond of not more than twenty acres 
belonging to a common owner, or any artificial pond 
made solely for the purpose of fishculture." 'Posted 
waters: all waters on lands posted as provided 111 this 
chapter." "Public waters: all waters of which the 
State has jurisdiction, except private preserves and 
posted waters." Elsewhere in the same chapter it is 
provided that the owner or occupant of enclosed or 
cultivated land may, by posting notices as thereby re- 
quired, prohibit shooting, trapping or fishing thereon, 
under a prescribed penalty. These are the main pro- 
visions of the statute bearing upon the section brought 
under consideration. There are provisions establish- 
ing a "close season" for hunting and fishing, or a 
time in the year when all persons are prohibited from 
hunting and fishing, and also regulating the manner 
and means by which hunting and fishing shall be prose- 
cuted in the open season. These statutes express the 
Legislative will regulating the rights of riparian owners 
in regard to taking fish from a common stream, and 
make the Fish and Game Commissioners officers to 
carry that will into execution. This is shown by the 
decisions hereinafter cited, and by all authorities. The 
respondent does not contend otherwise. 
The respondent contends that V. S., 4.568, is uncon- 
stitutional, in that it deprives the owner of the land 
over which the brook flows of his exclusive right to 
catch fish therein for the period of three years, and 
then makes them public waters for at least five years 
longer, without compensation. This is his only con- 
tention. Without considering whether the respondent, 
being a stranger to the right to fish in this brook, can 
raise this question, we will pass to the consideration of 
the broader question, which alone has been argued, 
whether the statute is unconstitutional as regards the 
owner of the soil, to whom the right to fish attaches. 
There can be no doubt that, if this deprivation of the 
owner of the soil over which the brook flows of the right 
to fish in it. for the time specified, is the taking of pri- 
vate property for public use, the law must, as to him, be 
held unconstitutional. 
Article 2. Chapter 1, of the Constitution of Vermont, 
provides "That private property ought to be subservient 
to public uses when necessity requires it, nevertheless, 
when any person's property is taken for the use of the 
public, the owner ought to receive an equivalent in 
money." If the act infringes .this constitutional provi- 
sion, the Legislature had no authority to enact it. and 
it is without legal validity. But this provision of the 
constitution must be read in connection with its other 
provisions, and especially must be considered with 
Article* 5, Chapter 1. of the Constitution of Vermont, 
which declares: "That the people of this State, by 
their legal representatives, have the sole, inherent and 
exclusive right of governing and regulating the internal , 
police of the same"; and Section 40 of Chapter 2, of the 
Constitution of Vermont, reading: "The inhabitants of 
this State shall have liberty in seasonable times to hunt 
and fowl on the lands they hold, and on other lands not 
enclosed; and in like manner to fish m all boatable and 
other waters (not private property) under proper regu- 
lations to be hereafter made and provided by the Gen- 
eral Assembly." Hence the question for consideration 
is whether the act of the Fish and Game Commissioners, 
definitely and specifically authorized and performed by 
and under V S., Sec. 4.568. is a taking of a right be- 
longing to the owner of the land over which the brook 
flows, for the use of the public; or whether it is a 
regulation of his use of that right under Section 40 of 
Chapter 2 of the Constitution of Vermont, and an 
exercise of the right of governing and regulating the 
internai police of the people of the State, reserved to 
their representatives by Article 5, Chapcer 1, of the 
Constitution of Vermont. 
In considering this question it is necessary to keep in 
mind the nature of the right and of the property out of 
which it arises. The right to take from flowing waters. 
not boatable, in this State, pertains solely to the owner 
of the land through which such waters flow. It pertains 
to such owner personally, and is his private right, but 
he does not own such flowing water and only has the 
right properly to use it while on its passage. He can 
use it in a reasonable manner for domestic purposes, 
for creating power and for taking fish therefrom. He 
must not divert it from its course, nor pollute it, but 
leave it so that the land owners on the stream above and 
below him can enjoy their full like use of the water, and 
among these the right to take fish from the stream. 
This right implies and carries with it the common right 
to have fish inhabit and spawn in the- stream. For this 
purpose they must have a common passageway to and 
from their spawning and feeding grounds. Fish them- 
selves are ferce natures, the common property of the pub- 
lic, or of the State, in this country. From this common 
property, the owner of the soil over which the non- 
boatable stream flows has the right to appropriate such 
as he may capture and retain; but this right of capture 
and appropriation is subject to regulation and control 
by the representatives of the people, so that there shall 
continue to be a common property. 
The preservation of the common property and its in- 
crease by the introduction of new and better species of 
fish is not a taking away of the right of the owner of 
the land on the stream to appropriate therefrom, but a 
preservation or enlargement of such right. The State, 
the representative of the people, the common owner 
of all things ferce natures, not only has the right, but 
is under a duty to preserve and increase such com- 
mon property. Such is declared to be the duty of the 
representatives of the people in the articles and sections 
of the Constitution of Vermont referred to. Such, also, 
was the common-law view of the nature of the rights of 
persons in streams and in animals ferce naturce. Says 
Mr. Justice Blackstone in his Commentaries, book 2, 
page 14: "But, after all, there are some few things 
which, notwithstanding the general introduction and 
continuance of property, must still unavoidably remain 
common; being such wherein nothing but an usu- 
fructuary property is capable of being had, and, there- 
fore, they still belong to the first occupant, during the 
time he holds possession of them, and no longer. Such 
(among others) are the elements of light, air and water, 
which a man may occupy by means of his windows, his 
gardens, his mills and other conveniences. Such also 
are the generality of those animals which are said to be 
ferce naturce, or of a wild and untamable disposition, 
which any man may seize upon and keep for his own use 
or pleasure. All these things, so long as they remain in 
possession, every man has a right to enjoy without dis- 
turbance, but if once they escape from his custody, or 
he voluntarily abandons the use of them, they return 
to the common stock, and any man else has an equal 
right to seize and enjoy them afterward." The same 
writer treats more fully of this class of common prop- 
erty and of the rights of individuals therein in chapter 
25 of the same book, and there lays down the principle 
that an individual may acquire, or have, a qualified 
property in such animals, among which fish are classed, 
either because of his industry in capturing and retain- 
ing them, or on account of their inability, for the time 
being, to escape from his premises or control, like young 
game birds while in the nest, or on account of his 
special right or privilege of capturing and killing them 
in exclusion of other persons. This latter right does 
not exist in this country, except as limited by owner- 
ship of the place from which they are taken, and the 
right to exclude others therefrom. 
Not a decision in this country, State or national, has 
been brought to our attention by the respondent, nor 
by quite an extensive examination of such cases which 
holds that such acts of the State Legislature in regard 
to this cla'ss of property and in restraint of the right of 
the riparian owner to take and appropriate fish there- 
from are unconstitutional. They have uniformly been 
held to be not a taking of private property or private 
rights for public use, for which compensation must be 
made, but an exercise of the police power of the State 
to preserve or increase a common property and to regu- 
late the right to capture and appropriate therefrom so 
as to preserve and increase the common property, or, at 
least, to prevent its diminution or destruction. Many 
cases might be cited in support of what has thus far 
been said. I quote from but a few. In Peters v. State 
of Tenn., 33 L. R., the plaintiff in error owned a tract 
of land covered by water from which' he alone had the 
right to take fish. The water was not a stream through 
which other riparian owners had the right to have fish 
pass to and from their feeding and spawning grounds. 
An act limiting his right to take fish therefrom only 
with rod and line was held constitutional, the court say- 
ing: "Fish in streams or bodies of water have always 
been classed by the common law as ferce naturce. in 
which the riparian proprietor or owner of the soil cov- 
ered by the water, even though he may have the sole and 
exclusive right of fishing in said waters, has, at best, • 
but a qualified property which can be rendered absolute 
only by their actual capture, and which is wholly di- 
vested the moment the fish escape to other waters. 
2 BI. Com. ^92; People v. Bridges, 142 111 30; 16 L- 
R, A. 684. 
"But, in addition, the power of the Legislature to 
enact laws for the protection and preservation of game 
in the forest and fish in the waters of the State has been 
so frequently exercised, and, when challenged on con- 
stitutional ground, has been so uniformly maintained, 
that the question has now passed beyond debate. Mor- 
rey v. State, 6 Lea. 218: Lawton v. Steele, 152 U. S 
1.33; 38, L. Ed. 385; Magner v. People, 97 111, 320; 
People v. Bridges, supra; TLedman on Pol. Powers, ss. 
125, 127." See, also, State v, Mrozinski, 27 L. R. A. 76; \ 
State v. Lewis, 20 L. R A. 52; Ex parte Maier and note. 
42 Am St. Rep. 129; Fish and Fisheries, 7 Am. and 
Eng Encv. of Law, 23; State v Roberts. 59 N. H. 
2^6; Trout and Salmon Club v. Mather, 68 Vt. 338; 
Drew v. Hilliker, 53 Vt 631. Lawton v. Steele, supra, 
establishes the attitude of the Supreme Court of the 
United States in regard to the constitutionality of such I 
laws and that they are but police regulations within the 
powers of the States to exercise. Townshend v. State., 
37 L, R. A. 294, is an interesting case upon the right of" 
a State to enact a law regulating the use of natural gas.t 
It treats it as common property from which those who 
