Oct. is, 1898.] 
FOREST AND STREAM. 
strike a vein upon their own lands have a right to draw, 
but subject to such statutory regulations, as the law- 
making power of the State might enact in the exercise 
of its police power, 
The police power extends to almost all kinds of prop- 
erty and rights, and its exercise by the Legislative 
branch is almost unlimited except where taken away, 
or limited, by the State or National Constitution. 
Courts and law writers have not attempted to define 
it with precision. It is the general power of the Legis- 
lative, branch to enact laws for the common good of all 
the people. All property and all rights are held in sub- 
jection to the exercise of this power because all in- 
dividual property and individual rights in every organ- 
ized community are connected with and related more or 
less intimately to the individual property and individual 
rights of others. In the exercise of this power, criminal 
laws are enacted, laws relating to the support of the 
poor, to the education of young people, to build and 
maintain highways, and, to accomplish these, ends, the 
individual is often compelled to surrender a portion of 
his rights to property and sometimes his liberty. In 
Livermore v. Jamaica, 23 Vt. 361, this court held that 
the taking of one's land for a public highway was not 
such a taking as required money compensation to be 
made therefor under the Constitution, but that the bene- 
fit which he derived from the establishment of the high- 
way might be offset to the damage he sustained from 
the taking, The court says: "The Constitution is the 
paramount law of the land, and every statute, which is in 
contravention of the Constitution must be held in- 
operative and void. 
"Whether the statute, or that section of it by which 
the commissioners were governed in making their ap- 
peal, is repugnant to the Constitution must, we think, 
depend upon whether the taking of land for a highway 
is such an appropriation of the property to public use 
as is contemplated by the Constitution. The taking 
of land for a highway does not divest the owner of his 
title in fee. The public only acquire an easement and 
the right of the owner to use, occupy and control the 
land in any manner which is not inconsistent with the 
public enjoyment of the easement still remains. Upon 
a discontinuance of the highway, the possession of the 
land reverts to the owner in as full and ample manner as 
he originally held it. In the opinion of the court this 
is not such a taking of property for public use, in 
the sense of the Constitution, as necessarily requires 
compensation for the same to made in money. To 
bring a case within this provision of the Constitution it 
should be such a taking as divests the owner of all title 
to or control over the property taken, and is an Un- 
qualified appropriation of it to the public." In Com- 
monwealth v. Tewksbury, 11 Met. 55, the owner of the 
fee of a portion of the beach which helps form Boston 
harbor was prosecuted for taking sand and gravel there- 
from under a statute which made such taking a penal 
offense. He defended, and one ground was that the 
statute was unconstitutional because it was a taking of 
his property for the public use without making com- 
pensation. The court, in an opinion by Shaw, Chief 
Justice, held that, although the statute prohibited such 
taking of sand and gravel with no limitation in regard 
to time, it was not such a taking of his property as 
required compensation under the Constitution, but a 
regulation of his use of his own property necessary in 
the interest of the State to protect the harbor of Bos- 
ton, and therefore constitutional, and that the respon- 
dent was guilty. 
The same power which may tax the people to estab- 
lish and maintain good roads for the common benefit 
of the public may tax them and take measures to pre- 
serve and increase the common fund of game and fish, 
from which all can take, subject to regulations pre- 
scribed by the Legislature in the exercise of this power. 
In Thorpe v. R. R. Co., 27 Vt. 140, Am. Dec, 625, and 
note, this court held that a law passed subsequently to 
the granting of the charter of the defendant — which this 
court held to be a contract — compelling the defendant to 
maintain, for all time, at a considerable expense, suit- 
able fences on the sides of its railroad track, was a 
proper exercise of this power. That decision has been 
generally approved and followed. This power has been 
exercised in regard to almost every species of property 
and of all kinds of rights. It is very elastic and adjust- 
able to new circumstances and new situations — as flexi- 
ble and adjustable as the maxim, Sic utere tuo ut alienum 
non laedas, in which it has its origin. 
In addition to the case already cited, the following 
(which could be added to at pleasure) are good illus- 
trations of the extent and application of this power: 
Champers v. City of Greencastle, 138 Ind. 339: 46 Am. 
St. Rep. 390 and note, in which it is said: "The police 
power of the State extends in the direction of so regu- 
lating the use of private property, or of so restraining 
personal action, as manifestly to secure, or tend to the 
comfort, prosperity or protection of the community." 
People v. Wagner, 86 Mich. 594; 24 Am. St, Rep. 141 
and note; People v. Ewer, 141 N. Y. 129; 38 Am. St. 
Rep. 788 and note; Butler v. Chambers, 36 Minn. 69; 1 
Am. St. Rep. 638 and note: State v. Heinemann; 80 
Wis. 235; 27 Am. St. Rep. 34 and note, in which the 
police power is defined as the power of "the State vested 
in the Legislature to enact such wholesome and reason- 
able laws, not in conflict with the State or Federal Con- 
stitution, as may be conducive to the common good." 
Health Department v. Rector (145 N. Y. 32), 45 Am. 
St. Rep. 579 and note. The opinion in the last case is 
carefully prepared. Among other things, it says: 
"Laws and regulations of a police nature, though they 
may disturb the enjoyment of individual rights, are not 
unconstitutional, though no provision is made for a com- 
pensation for such disturbances. They do not appro- 
priate private property for public use, but simply regu- 
late its use and enjoyment by the owner. If he suffers 
injury, it is damnum absque injuria or, in the theory of 
the law, he is compensated for it by sharing the general 
benefits which the regulations are intended and cal- 
culated to secure. Dillon on Municipal Corporations, 
4 ed., sec. 141 and note 2; Commonwealth v. Alger, 7 
Cush. 83, 84, 86; Baker v. City of Boston, 12 Pick. 184 
193; 22 Am. Dec. 421; Clark v. Mayor of Syracuse, 13 
Barb. 32, 36." This was said in upholding a law which 
compelled the owner of a tenement block erected and 
in use before the passage of the law to introduce water 
at quite an expense so it could be drawn from a faucet 
on every floor of the block, Com. v, Kimball, 24 Pick. 
359; 35 Am. Dec. 326 and quite extensive note; People 
v. Arensberg, 103 N. Y. 388; 57 Am. Rep. 741 and note. 
The framcrs of the State Constitution early began 
to regulate the right to kill deer and take fish and musk- 
rats, for their protection and preservation for the com- 
mon benefit of the people, and to destroy noxious wild 
animals, wolves and panthers, by the payment of boun- 
ties with money raised by enforced taxation. These 
were done by acts passed in March, T797. 2 Tolman's 
Comp. Sts. 19 to 24. The Constitution in its present 
form was adopted in 1793. The act for the preservation 
of fish makes the erection of any dam, hedge, seine, fish 
garth, or other stoppage, in any watercourse whereby 
navigation or the passage of fish may be obstructed, a 
nuisance and punishes the person erecting the same with 
a fine. It also establishes a "close season" when trout 
cannot be taken. 
The definition of public waters apparently excludes 
from the jurisdiction of the State private preserves and 
posted waters. This is not true. Both are subject to 
the police power of the State. Any man can be punished 
if he injures the rights of their owners. Posted waters 
obtain additional protection by an exercise of the police 
power. At common law, the owner could only recover 
for trespass upon his land, and the invasion of his right 
of fishery— generally a very ineffectual remedy. Hence 
the right of the riparian owner was rarely regarded, or 
enforced, before the Legislature, to protect his right, 
allowed him, if he complied with the law in regard to 
posting his premises, to recover of every violator sub- 
stantial damages. Where the owner availed himself of 
this law, the Legislature evidently considered that the 
unreasonable destruction of the natural supply of fish 
in the trout brooks and streams would be stayed and 
that such streams would need no further protection. 
Hence such brooks are excluded from the jurisdiction 
of the Fish and Game Commissioners. But it reason- 
ably judged that a non-boatable stream which the ripar- 
ian owner would not be at the expense of costing was 
already depleted of the natural supply of this valuable 
kind of food and needed to be replenished. It, there- 
fore, allowed the Fish and Game Commissioners to 
restock it at the expense of the people; and to make 
that expense profitable to such riparian owner and to 
the people of the State, the fish must be protected from 
destruction until they began to reproduce, and then the 
community should not be burdened to protect his right 
beyond what the common law furnished for five years 
longer. By providing that such waters should be waters 
over which the State has jurisdiction, it did not take 
away such riparian owner's right to maintain trespass 
against every one who should enter without his license 
upon his premises and catch fish from the non-boatable 
stream thereon. The action of the Fish and Game Com- 
missioners in stocking the stream and posting it presum- 
ably would enure to the benefit of such rinarian owner 
and all other riparian owners on that and other con- 
nected streams. Whether it would or not, the constitu- 
tion clearly empowered the Legislature to pass such 
laws as, in its discretion, it might judge would be for 
the common benefit of the people of the State. 
Some one has suggested that the State had no right 
to send the Fish and Game Commissioners upon Mr. 
Hale's land to stock the stream. The law is paramount 
to his property and rights within the inhibitions of the 
State and national constitutions. As well might he 
contend that the law could not send its officer upon his 
land to arrest him for a criminal act or to attach his 
property at the suit of a creditor. On any view, even if 
the owner of the land over which the stream flows had 
been the violator of the law and was under prosecution, 
this statute must be held constitutional and enforce- 
able; and much more against this respondent, who clear- 
ly had no right upon Mr. Hale's premises nor the right 
to take fish from the stream of water flowing thereon. 
Judgment affirmed and cause remanded to the city 
court. 
Thompson, J., dissents. 
CHICAGO AND THE WEST. 
Michigan Hatchery Mishap, 
Chicago, 111., Oct. 8.— Michigan State fish hatchery 
at Sault Ste. Marie last week suffered a severe loss, and 
from a curious cause. In the breeding ponds, con- 
nected with the waters of the Sault, there were over 
1,200 large mature trout used for breeding purposes. In 
the morning the water was noticed to be lowering in 
the breeding pond, through one of those mysterious 
changes of the. Great Lakes water level which at times 
take place. Before any remedy could be devised the 
pouds were empty, and over 900 trout were dead, the 
best of the breeding stock. 
This rising and falling of the water in the Great Lakes 
is an odd phenomenon. Sometimes the rise or fall will 
amount to 6ft. The velocity of the wind and the 
variation of barometric pressure are supposed to have 
much to do with this "seich," as it is technically known. 
Sometimes within two hours there will be a difference 
of a foot in the tide gauges on the east and west sides of 
Lake Michigan. It is stated that at one time in 1893 
a heavy gale on Lake Erie raised the water at the 
eastern end 5ft. and lowered it 5ft. at the western part. 
Changes of less extent have been noticed in Lake 
Superior, but the above disastrous flux seems to have 
been, about as serious as any recorded. 
Saving the Little Ones* 
At La Crosse, Wis., the work of seining young fish 
out of the landlocked sloughs adjoining the Mississippi 
River has been continued this fall, with the most gratify- 
ing results. About 55 citizens of La Crosse have joined 
in defraying the expenses of this work, which has been 
placed in charge of Deputy Warden Carl Palmer. It 
is estimated that over 100,000 young fish have been 
saved, most of them black bass. This is a record of 
which La Cross« may very well be proud. I have 
eariier stated that La Crosse is one of the very best 
places in the West for fly-fishing for black bass. 
Lunge, 
Mr. Robert Mitchell, of Appleton, Wis., last week 
was lucky enough to land a 2olb, niuscallunge in the 
waters near Manitowish, Wis. 
Mr. Caldwell and party, of this city, have returned 
from their trip to their old stamping grounds in Wis- 
consin, and they brought a couple of hundred pounds 
of muscallunge to show that they did business. 
The largest muscallunge taken anywhere this season, 
so far as I have learned, was that killed by Mrs. C. F. 
Tatum, in Big St. Germaine Lake, of Wisconsin. This 
fish was sent down to Kaempfer for mounting. It 
weighed 461bs., and was the largest muscallunge. that I 
have ever seen. The largest I ever heard of taken in 
Wisconsin was 55lbs. By the way, I should be very 
much obliged if some one familiar with St. Lawrence 
and other angling records would tell me which is the 
heaviest weight of muscallunge for those waters. I 
would like very much to know the heaviest weight of 
muscallunge taken in the United States or Canada. 
Mounting Trout. 
There is displayed in a show window on Washington 
street, this week, a trout mounted in a curious and 
effective way. This was the second largest trout taken 
by the Oliver party on the Nepigon, account of which 
was made earlier. This trout was mounted by making a 
half-section of the skin, cutting it along the back and 
belly, the half-skin being then sewed neatly about its 
edges to a piece of birch bark. This' makes a very 
fetching style of mounting. 
Obituary, 
In speaking of noted Chicago anglers a week ago in 
these columns, I mentioned the name of Mr. James L. 
High, a Chicago lawyer who has won more than a 
passing fame by his legal works, which are accepted as 
standard in their field. I mentioned Mr. High as one 
of the Chicago anglers who control Canadian salmon 
leases. It is very sad to record this week the death of 
Mr. High, who passed away Oct. 3, of spinal meningitis. 
Mr. High was an expert angler, and an enthusiast in 
the gentle art. He had a grand collection of useful and 
valuable angling literature, including several editions of 
Walton's "Complete Angler." Some copies in _ his 
library are said not to be duplicated in any American 
collection. In large circles both of business and of 
high class sport Mr. High will be sadly missed. 
E. Hough. 
1200 Boyce Building, Chicago, 111. 
The New Brunswick Trout Season. 
Edmundston, New Brunswick, Oct. 1. — The trout 
fishing for the year has ended, and many were the 1. 2 
and 3-pounders taken, a few of 4, 5 and 61bs.; and two 
above these weights were captured in the Madawaska, in 
September. I spent two days in fishing as a sport; T 
generally go as guide and paddle and pole my own 
canoe; but this time a friend wished to go. and as I was 
the better fisher, he was to manage the canoe. We were 
proceeding up the river, Joe using the pole, I casting as 
we slowly breasted the stream. A man on a raft a short 
distance above us attracted our attention, as he was 
fishing. We were finding some fault with the way he 
was handling his rod and casting his flies; and had come 
close to him, when I heard a sharp crack behind me. 
Turning quickly, I was just in time to add my balance 
to help Joe, as he was tumbling out, and over went 
canoe with both of us into the cold water 4ft. deep. My 
first look was to this man on the raft, as I naturally ex- 
pected to hear a roar of laughter from him. I know 
had I been in his place I could not have helped it, but 
there was not a sound, and his face was as sober and 
solemn as of a judge about to pronounce sentence. We 
waded the canoe ashore, straightened things up, and 
went out to see the man, for I felt annoyed at him for 
his sullen silence. When asked why he did not laugh, he 
answered that he did not see anything to laugh at. After 
this accident, I felt it would be prudent for me to man- 
age the canoe, and I did to the finish, without further 
mishap. We took quite a number of trout, but I never 
can forget the ducking at the close of this fishing year. 
Now for the next three months we will look after' 
the deer, caribou and moose for the pleasure of the 
sportsmen who may favor us with their presence. The 
two first named animals are found in the near vicinity. 
■ While the moose roams further back in the more dense 
forests, where the trapper often runs across them while 
trapping for mink, bear, otter, marten, fisher, fox, loup- 
cervier and beaver. These trappers have lines of traps 
very often extending sixty miles, over which they go 
back and forth once in two weeks during the winter, at 
times seeing some discomfort, but having lots of pleas- 
urable, profitable excitement, arid making more money 
than they could by any other kind of work. Large game 
is plentiful, but the fur-bearing animals are becoming 
scarcer as the years roll by. S. J. Raymond. 
Spirit Lake Fishing, 
Oskaloosa, Iowa, Oct. 2. — Editor Forest and Stream: 
I have just returned from my annual fishing trip to Spirit 
Lake, where I had a splendid good time. I did not catch 
as many fish as usual, but have no cause to complain, only 
that the lake is getting lower every year. Where there 
was good fishing three years ago, now the w r ater is not 
more than 2ft. deep. The great lake seems to be gradu- 
ally drying up. The State fish hatchery, located at the 
lake, is sadly neglected; everything connected with the 
business has gone to ruin; the pools are all dried up or 
nearlv so, and none of them contain any fish. 
The Old Man. 
New York Fish Plants for J 898. 
The Fish Commissioners of New*'York have put out 
during the year which ended Oct. 1. They were divided 
as follows: Brook trout, 4,058.807; brown trout, 960,- 
743; rainbow trout', 188,260; lake trout, 914,511; pike, 
17,550,472; bass, 116,450; red throat trout, 1,000; yellow 
perch fry, 2,555,300; yellow perch fry (three months 
old), 7,500; lobsters, 6,550,000; shad, 10,897,400; tom- 
cods, 47,000,000; whitefish, 24,100,000; frostfish, 5,785,- 
000; cisco, 15,000,000; rnuskellunge, 2,650,000; herrings, 
1,500,000; smelt, 48,000,000; shrimp, 65,000; pickerel, 
50, The total counts 187,809,733. 
