448 
FOREST AND STREAM. 
[June io, 1899. 
I am afraid this will prove a serious drawback over here ; 
however, we will see. 
Rainbows still do wonderfully well ; we now get nearly 
perfect impregnation by letting the water which envelopes 
the ova drop and remain in the spawning dish before 
milting, this water, of course, is not the water which is 
avoided in dry spawning, but the watery fluid which sus- 
tains the ova inside of the female, 
The steelhead ova forwarded by Captain Dougherty, 
and sent over via Cape Vincent Station in Mr. Stone's 
care, arrived beautifully about fourteen days ago. Loss in 
hatching and transit under 720 out of 10,000 eggs, and I 
hope the fry, which are vigorous, will give a good account 
of themselves. The ova arrived packed on trays bot- 
tomed with strong bleached swansdown (canton flannel) 
and on which swansdown moss was packed. The ova 
were placed on the moss in single layers, and covered 
over with the xxsual coarse mosquito netting. Plenty of 
air space was provided between every tray by driving 
small nails, with about Jc+in. of their lengtlr sticking out, 
into each traj^ corner. I think this Avould be the correct 
way of transporting the iiiykiss ova too, and in view of 
this I have had the following equipment made here, as the 
mykiss ova develops so quickly, and your plan of hatch- 
ing en route is still rather dangerous. 
I have put freshly spawned and freshly impregnated 
rainbow ova, immediately after the washing and after the 
first white ova were picked out, on similar moss trays 
very thinly, omitting, however, the top mosquito netting 
and leaving the ova loose on the moss with J^in. air space 
next to the swansdown. The inoss pads were well 
soaked before putting on the ova and the woodwork and 
swansdown was soaked for forty-eight hours before put- 
ting on the moss (I found this necessary as the wood- 
work absorbed too much moisture afterward if not so 
treated) ; the six frames were put on top of one an- 
other and a moss box (moss 3in. thick) added at top and 
bottom, moss well soaked. No ice was applied, and the 
ova was packed in an outer case with moss lining (not 
hay nor chaff, which would heat) Sin. all around. 
The ova were left imdisturbed except for the closed box 
being sent by rail around about here and back several 
times, and then opened after twenty-four days, and the 
ova were found to be doing remarkably well toward 
eyeing, the loss in dead and fungused ova being small 
comparatively. 
I understrapped (cotton ribbons nailed tightly across 
below the swansdown, crosswise), some of the frames to 
obviate the puddling of the moss, and these frames did 
best. Could you have a similar experiment made with 
some my kiss ova?" 
German fishculturists arc very thorough with all these 
experiments, and this letter from Mr, Jaffe contains valu- 
able information. Very recently I have learned that the 
Pennsylvania Fish Commission will not cultivate the rain- 
bow or brown trout in the future. Our breeders have had 
much trouble in impregnating and rearing the fry of the 
rainbow, as compared with the ease that the eggs and fry 
of the native Eastern trout may be impregnated and 
reared, and the fish find greater favor abroad than it does ''n 
eastern Nova Scotia waters when brought from the Paci- 
fic slope. The my kiss (Rocky Moimtain or black spotted 
trout) mentioned by Air. Jaffe have been hatched in the 
East only in New York State, so far as I know, and they 
are a spring spawning trout like the rainbow. The Fish- 
eries, Game and Forest Commission find no difficulty in 
getting an impregnation of from 90 to 95 per cent., but the 
embrj'o is apt to burst the egg just before hatching, and 
there is loss between the times of hatching, and the times 
-of feeding, so there is a loss of 40 per cent, on such a 
matter. 
From the Salmon Rivers, 
If any one of the many vexing things in this life is 
more vexing than another, it is, in my estimation, to 
have two invitations to fish two of the best salmon rivers 
in Canada, and think about it during the winter, and 
when the season for salmon fishing coines, to be kept 
at home b\^ "ofi^icial duties." My physician (he is an 
angler, and an angler makes the best kind of a physician 
— ^for an angler) says that I am suffering for the benefits 
to be derived from a vacation on a salmon river, and I 
feel that he is right about it; but I have a conscience 
(what an entirely unnecessary thing a conscience is at 
times, when it rears up on its hinder legs and pricks 
your entire system so that no argument can knock it 
out), and that conscience lias been wrestling with me 
for several weeks. Twice I have had it down, so that 1 
thought T might get the decision, but it rose again, smil- 
ing, and as busy qs a boy digging angle worms. Last 
year I knocked it out in one round when a telegram 
came to me saying the salmon were coming into the 
Ristigouche. and it did not recover until I was across 
the border in Canada, where I had it at a disadvantage, 
for m.y conscience does not understand Indian or habi- 
tant French. Tt has been a little weak this morning, 
since I received a letter from my friend Mr. Archibald 
Mitchell, dated at Runnymede. P. Q,, on the Ristigouche 
River, May 30, which reads: "My son and I arrived here 
Friday last. The Matapedia bridge is half gone, 
not on account of a freshet, though the ice got jammed 
on one side, which made tlie current so strong on the 
other side that the water undermined the piers and car- 
ried part of the bridge down. We fished Friday after- 
noon. Saturday afternoon and all day yesterday (Mon- 
day), and have had all the fun we want beaching kelts 
and letting them go. I beached eight yesterday, all 
large and mended kelts, nearly if not quite as bright as 
fresh sunfish, I hooked one on one of his fins just above 
the vent, and he made lots of sport and crossed and re- 
crossed the river, and we all thought it was a fresh-run 
fish for some time. They are not getting many salmon 
in the nets below yet, and there appear to be very few 
in the river although Mr. Falls killed a 28-pounder on 
the Goelet water yesterday morning, and a 40-pounder 
is also being reported as taken on the club water above 
Matapedia Saturday. On account of salmon being so 
scarce, we are going down to Tide Head to-day to try 
and get some trout fishing. We are the first fishing party 
on the river this year. You make a mistake not to see 
your way clear to have som.e salmon fishing this sea- 
son. You will accomplish more in the_ long run by 
breaking aw.ay from your desk for a while^ and killing 
«ome salmott than by grinding at it all the time." 
That sounds like advice that should be followed, and 
I know Mr. Mitchell is a man of good judgment and 
something of a doctor, for he can mend a reel or a rod 
and splice a fractured line and even make salmon flies. 
Since I have read his letter I have smoked several pipes 
over it and must confess that my thoughts have been less 
on "official duties" than on the last salmon I killed at 
Runnymede last year, a fish of 26i-41bs., gaffed from the 
canoe, which gave me a fight so interesting that while 
it lasted if my conscience had roared at me through a 
megaphone I would not have known that I had it in the 
canoe with me. I am not sure, but this day seems to be 
not a good one for a conscience that cannot talk Kanuck 
to be j)rowling around. A. N. Cheney. 
Fishing on Posted Streams. 
PoTTSviU.E, Pa., May 27. — Editor Forest and Stream: 
For many years it has been a disputed question whether 
it was possible to prevent fishing in private or preserved 
streams in this State, and it may interest you to read the 
result of a case just tried in Alonroe county. I inclose 
you Judge Albright's charge to the jury, and the cir- 
cumstances of the case as reported by the Monroe Demo- 
crat, The case was tried at a special term of the Civil 
Court, Judge Edwin Albright presiding, W. D. S. 
For several years there have been in existence in this 
county a number of fish and game associations, which 
have purchased or leased many miles of streams and many 
acres of land for the purpose of the preservation and 
propagation of fish and game. Their right to forbid hunt- 
ing or fishing on their respective preserves has been ques- 
tioned, and especially so with respect to the right of all 
persons to fish for trout in the streams in which the State 
had placed trout fry. Articles have been published in 
some newspapers to the effect that the Supreme Court 
had decided that this right could not be abridged, and the 
various fish associations could not prevent fishing in their 
streams if fish from the State hatcheries had been placed 
in them. Everywhere throughout the county the subject 
has been discussed and many people are honest in their 
conviction that they have the right to fish in any stream 
for which fish commissioners have furnished fish. 
Consequently the several cases for trial in court this 
week were of more than usual interest. These suits were 
actions in trespass against John Ely, William Seiple and 
Joseph Delp, all of Northampton county, for fishing and 
taking trout in the McMichaels Creek in Chestnuthill 
Township in April, 1898. The actions were brought by the 
Pohoqualine Fish Association, the owner of about six 
miles of this stream, and upon • which the fishing was 
done. The court. Judge Albright presiding, began con- 
sideration of the three cases, wliich were tried together, on 
^londav noon. 
The Fish Association was represented by Messrs. Storm 
and Palmer, while Messrs. Staples and Erdman repre- 
sented the several defendants. 
The several witnesses for the plaintiff showed that each 
of the defendants had been fishing in the stream, and had 
taken fish therefrom. They also testified that sixty-three 
printed notices were posted along the streams showing 
them to be private, that the fish warden told the de- 
fendants the stream was private and fishing was forbidden 
and Wardens Haney and Siglin threw stones in the stream 
to prevent any further catching. It was also testified to 
that the defendants left the stream at about noon, but in 
the afternoon again returned and resumed fishing and 
endeavored to bribe the wardens who were persistent^ in 
their efforts to prevent their fishing. The Association 
further showed that it had expended large sums of money 
in the propagation of treat. 
The plaintiff's completed their case on Tuesday fore- 
noon, when the defendants' counsel moved a compulsory 
non suit, which was refused by the court. Mr. Erdman 
then opened for the defense. The position taken by the 
defendants was that the plaintiffs were entitled to nom- 
inal damages. The ownership of several miles of the 
stream by the Pohoqualine Fish Association was admitted 
as well as the fact that they, the defendants, had been 
guilty of trespass. They also admitted that in the event ot 
the defendants having gone on the stream wilfully and 
maliciously then the plaintiffs were entitled not only to 
nominal, but also to punitive or vindictive damages. 
They, however, maintained that such was not the case. 
They offered to show, in order to avoid punitive damages 
and show their innocence of wilful entering and trespass 
upon the lands and streams of the Association that for 
some time the rights of fishermen had been agitated and 
somewhat in doubt, that they had seen an article in the 
Times which led them to believe that they had a perfect 
right to fish in any stream which had been stocked by the 
State with trout, that they had consulted two attorneys 
of Northampton county, who had advised them that they 
had a perfect right to fish the stream provided they 
waded the creek, that fully relying on this advice they 
actually believed they had a right to fish, and on that ac- 
count persisted in fishing even after they had been warned 
oft' by the warden, A portion of the above evidence, the 
Times article, was not admitted by the court, the court 
not being of the opinion that newspapers were safe ad- 
visers in legal matters. 
The several defendants were then sworn and testified 
virtually to the above facts, and denied having gone into 
the stream to make a test case. 
An attempt made to show that Justice of the Peace D. 
M. Haney had informed the defendants that according to 
law they had a right to fish in that stream was ruled out. 
Hon. Nathan M. Lesh and others testified that they had 
placed trout fry in the stream about three-quarters of a 
mile from where the defendants fished. The defense 
closed at about 3 o'clock. 
In bis charge to the jury. Judge Albright called their 
attention to the several kinds of damages from trespass, 
and fully defined the rights of property owners. As 
there are a number of facts of interest in his charge, and 
permission has been given us to print it, we give the main 
points below. 
The jury found the defendants guilty of trespass, and 
nominal damages of one dollar each was placed on the de- 
fendants, and also one dollar each vindictive damages. 
In regard to the costs, it is very probable that they will 
be placed upon the Wind Gap men, although the matter 
will be determined at an argument court. The law is 
that where the court will certify that the trespass is wilful 
and malicious, the defendants must pay the costs. In this _ 
case the judge charged the jury that if it found the de-' 
fendants guilty of wilful and malicious trespass they must i 
find the damage more than one dollar, which was done. 
The Pohoqualine attorneys asked the court to niake the' 
certificate that the trespass was wilful and malicious. The 
defendants' attorneys moved against it and aii argument 
will follow. 
The amount of the costs will be in the neighborhood of ' 
$150. I 
Judge Albright's charge to the jury covered the follow-' 
ing points of law : 
In each of these three cases the plaintiff seeks to re- 
cover damages from the defendants for the alleged tres- 
pass on the plaintiff's property. It appears that thei 
Pohoqualine Fish Association is a corporation enactedi 
under the laws of Pennsylvania in the year 1894, and it 
appears that shortly after that they acquired by purchase! 
and by lease a right to the stream known as McMichaels^ 
Creek in this county, and an ownership of a strip of land, 
on each side of the stream for some four or five miles. 
Both this corporation and other persons put in trout 
that were hatched artificially. It appears that above the, 
holding of this corporation the stream extends a number 
of miles, and it extends for miles below their holdings, 
and the fish were not confined on the company's property.^ 
They could go up beyond it and down below it. It is not a, 
case of fish confined in a stream which belongs to a single 
owner, nor is it a case of fish in a pond. The fish them- 
selves under the conditions we have to do with here are 
not the subject of property; they are considered to be wild 
creatures like bees in an undomesticated state, rabbits and 
other wild creatures. 
The defendants in April, 1898, fished in this stream 
where the company owns it. Each of these three defend- 
ants has testified that on a certain day in April they went 
together and intended to- go to this stream and fish and 
did go there. ^ They entered the stream and each caught 
some fish. They fished in the forenoon and afternoon 
of that day. The wardens employed by the company, 
say they told them they_ had no right to' fish there, but 
that the defendants continued to fish, saying they had a 
right to fish, and then the wardens, in order to prevent 
them from taking any or many fish, threw stones and 
sticks in. The result was that each of the defendants 
caught, took and carried away several fish, and for thai 
alleged unlawfvil act the company has brought these three 
actions. This is not an action or prosecution brought foi 
a violation of the fish laws. It is simply an action o] 
common law trespass brought by one man against an- 
other, who it is alleged unlawfully entered upon his land 
At this point the Judge gave some general directiotfj 
as to the duties and powers of juries. 
These defendants admitted that they waded the stream 
belonging to the plaintiff, and they fished. That consti^ 
tuted a traspass. One who intentionally enters. upon the 
lands of another, when there can be no pi-etense that f 
was accidental or unintentional or necessary, commits 
traspass; and when a party goes upon your lands or am 
other person's land, insisting that he has a right to gc 
there, and particularly when he persists in remaining 
when he is warned off by you or your servants, he com 
mits a trespass; and when he is such an intruder he be 
comes a trespasser, and it is the right of a citizen to havt 
that declared. It is all the same when in passing from th! 
land of another you walk upon the land or in the stream 
it is a trespass, and the excuse set up by the trespasser! 
■ that they thought they had a right to fish there does no; 
affect the question of right. It does not affect the ques* 
tion as to whether they were trespassers or not. If yoi 
have a stream flowing through your land with fish in it 
or if you have a flock of chickens, and some one come | 
and insists upon fishing in your stream, or taking you 
chickens, it is no defense when you sue him for trespas 
if he says he thought he had a right to fish in your strean 
or take your chickens, inasmuch as some lawyer tol* 
him that. So in each of these cases the plaintiff is enti- 
tled to recover. 
In every action of trespass where it is found that th 
defendant is in the wrong and the plaintiff is in the right 
then the plaintiff' must be awarded at least nominal dam 
ages; that is, some small sum to indicate that the plain 
tiff was adjudged to be in the right and the defendant i' 
the wrong. Such nominal sum is some small sum. W 
say to you that you can treat $i in each case as nomina 
damages, to which the plaintiff is entitled, and that i' 
each of these cases you are to return a verdict for plair 
tiff for at least $1. 
In addition to such nominal sum, in actions of tres 
pass, where the plaintiff prevails, he may be entitled to 
further sum as compensation for what he' lost or fc 
the injury that he sustained. In this case there was ni 
damage done, as it is not said they spoiled anything o: 
plaintiff's property, and consequently we say to you tha 
as compensation the plaintiff is entitled to nothing, be I 
yond the $1, so far as we have presented the matter- \ \ 
you. They took fish which were of value, no doubt, bu 
inasmuch as there was an open stream these fish wer 
wild creatures, which one person had as much right t 
as another. Therefore, we say to you that you canivc 
give plaintift' an}^ sum as the value of the fish as com 
pensatory damages. 
The question remains, gentlemen, as to whether yo 
shall add to the $1 nominal damages in each case a fur; 
ther sum in the . nature oi vindictive or punitive dain 
ages. In an action of trespass where the charge is soni 
wrong and it appears that the wrongdoer acted oppre> 
sively or outrageously, and with a high hand, or reck 
lessly disregarded the rights of another, or that he war 
tonly disregarded another's rights, then a jury, afte 
awarding nominal damages, may add punitive damage 
as a proper punishment of the defendant, and in such a 
action, when the plaintiff prevails, and such ground fc 
further vindicative or punitive damages is not showr 
then no such damages shall be given. 
Defendants' counsel here has not taken the ground tha 
you shall find a verdict in favor of the defendant. H 
had too much regard for you to mislead you, if he couh 
into the disregard of your duty and to find a verdi< 
against the law and against the right, but insists that yo 
ought to stop at^ noiitinal dartiage§, $1 in eac, 
cas-gi The plaintiff ia-slsts that under the xircumstence' 
