28 
for one man to catch a sack fuwU in an afternoon's 
fishing, when they are biting. One man, whom I know 
to be perfectly reliable, tells me he caught 138 pounds 
in two hours, from i to 5 pounds each. What do you 
think of that? 
"Anglers who wish to come here will have to bring 
boats (canvas folding boats the best). There are 
only two boats here, one, I think, can be rented, the 
other cannot. I forgot to say that Walker Lake is a 
part of the Walker River Indian Reservation, and one 
cannot leave a boat or anything else, as the Indians will 
get away with it; they take everything in sight." 
There are also silver trout in this lake, and some 
years ago salmon from 10 to 25 pounds. No salmon, 
however, have been taken for the past 6 or 7 years, 
the bass are supposed to have destroyed them. 
To reach Hawthorne, Nevada, coming west, stop 
at Reno, and change to the Virginia and Truckee Line 
to Mound House, again change to the Carson and 
Colorado Narrow Gauge to Hawthorne. Hawthorne 
lies four miles south of the lake. Excellent accommo- 
dations may be had at the Lake View House, and 
teams can be hired to take parties to the lake. 
James Watt. 
Rockefeller vs. Lamora* 
Full Text of the Opinion, Appellate Division of the New 
York Supreme Court, June Term, 1903. William 
Rowkefeller, Appellant; Oliver Lamora, Respondeat. 
Appeal by the tjlaintiff from a juds:ment of the County Court of 
FrauWin county in favor of the defendant, dismissing the plain- 
tiff's complaint, at the close of the evidence, entered in the Frank- 
lin County Clerk's office on the sgcond day of January, 1903; and 
also from an order bearing date the 16th day of December, 1902, 
denying the plaintiff's motion for a new trial made upon the 
minutes. Kellas & Genaway, for appellant. Saunders & Saunders 
for respondent. 
Houghton, J. 
The plaintiff is the owner of about 50,000 acres of 
Adirondack forest lands, being the greater portion of 
townships 16 and 17 in Great Tract No. i of Macomb's 
Purchase, in the southern part of Franklin county. 
The St. Regis River, which flows northwesterly into 
the St. Lawrence, has its source, in three branches, in 
this vicinity. What is termed the Middle Branch rises in 
the St. Regis Lakes situate in township 18, which joins 
- township 17 on the east, and flows for several miles 
through the plaintiff's lands. On the easterly side of 
township 17 is a considerable body of water known as 
Fallensby Junior Pond. Its inlet is from_ Slush Pond, 
situate on the westerly borders of township 18, and its 
outlet empties into the Middle Branch of the St. Regis 
River on plaintiff's land. In the southwest part of the 
township is a pond known as Bay Pond, the outlet of 
which flows into the West Branch of the St. Regis River, 
v/hich does not join the Middle Branch for many miles 
after leaving the territory owned by the plaintiff. In the 
rijortheast part is located Quebec Pond, the outlet being 
Quebec Brook, which flows northerly off the lands 01 
plaintiff and eventually joins the Middle Branch a con- 
siderable distance bejond the borders of his tract. A 
small tributary, known as McCollum's Brook, rising on 
another township, empties into Quebec Bropk just south 
of the north line of township 17. 
The plaintiff completed the acquisition of his lands in 
the spring of 1899, and immediately began the establish- 
ment of them as a private park for the protection or 
propagation of fish, birds and game by the publishing and 
posting of the rotices provided by Article IX. of the 
forest, fish and game law as then existing. Since that 
time the entire tract, except about twenty-five acres 
cleared for a camp near Bay Pond, has been devoted to 
the uses of a fish and game preserve. The plaintiff en- 
gaged and has kept employed, men to look after his lands 
ynd to preserve them from trespass. English deer were 
imported and turned loose among the native deer, both of 
which have been fed during the winter when occasion re- 
quired. Fish, birds and deer have largely increased since 
the establishment of the park. 
In April and May, 1902, the defendant, on three several 
occasions, entered upon the plaintiff's lands and fished in 
the Middle Branch of the St. fiegis River. He knew of 
the published and posted notices, and, in addition, had 
been warned by the plaintiff's keepers not to iish upon the 
plaintiff's lands because it was a private park. He caught 
and carried away a number of trout on each occasion. 
The plaintiff thereupon brought action in justice's court 
against him, to recover the penally in the form of exem- 
plary damages, prescribed in section 203 of the forest, fisii 
and game law The defendant justified his trespass on 
the ground tha: the waters on and running through the 
plaintiff's lands and pretended park had been stocked with 
fish by the State, and that hence the plaintiff had no right 
of action for the penalty in the form of exemplary 
damages against a citizen fishing in such waters. 
That action resulted in a judgment for the defendant, 
and the plaintiff appealed to +he county court of Franklin 
county for a new trial, which resulted in a direction of a 
verdict for the defendant, at the close of the evidence, 
and it is from that judgment that the plaintiff appeals. 
On that trial the plaintiff established the facts hereinbe- 
fore staled, and the defendant sought to prove the stock- 
ing of the watefs by the State in justification of his acts. 
Errors were committed on the trial in the admission of 
uhproved documents and lett^s, but this court puts its 
decision on broader grounds. The vast sums of money 
'expended by individuals and clubs in establishing and pre- 
serving private parks in the Adirondacks, and the great 
interest which the citizens of the State have in their 
rights to the pursuit of pleasure and health in that region, 
demand from the court a broad interpretation of the law. 
The provision of law with respect to establishing private 
parks, in force in 1899, contair\ed in section 212 the fol- 
lowing limitation: 
Provided, however. That all waters heretofore stocked by the 
Stale, or which may hereafter be stocked by the State from any 
of the hatcheries, hatching stations, or by fish furnished at the 
expense of the State, shall be and remain open to the publir 'o 
fish therein the same as though the private park law had neve.r 
existed. l!ut nothing herein contained shall be construed as 
alTectiug any rights now existing of persons owning lands or 
holding leases dl private grounds, waters or parks prior to the 
passage of thi^ act. 
For the purposes of the discussion of the case, it will 
be assumed that the defendant preyed that the witness 
FOREST AND STREAM. 
Dwight, between the years 1891 and 1894, not being the 
owner of the lands or having any fishing rights in the 
streams, and without the consent of the owners, stocked 
the inlet of Fallensby Junior Pond with speckled trout fry 
procured by him from the State hatchery and hatched at 
the State's expense; and that he also stocked, in the same 
manner, with lake trout and speckled trout fry, the inlet 
of Bay Pond; and that such fish were furnished by the 
State Fish and Game Commission, on his request, they 
knowing where they were to be placed. Also that the 
witness McNeill stocked before 1899 McCullom's Brook 
with speckled trout fry, under the same circumstances 
and under the same conditions. 
This state of facts did not, we think, justify the de- 
fendant in his trespass nor authorize the court to direct 
a verdict in his favor. 
It will throw light on what the Legislature could do 
and intended to do in the passage of the parking law, to 
investigate the right of the individual owners of the land 
and the people at large. 
A-s early as the Year Books it was the common law of 
England that a right to take fish belonged so essentially 
to the right of soil in streams where the tide did not ebb 
and flow, that, if the riparian proprietor owned upon both 
sides the stream, no one but himself might come within 
the limits of his land and take fish therefrom. And thfe 
same rule applied so far as his land extended, to-wit, 
to the thread of the stream, where he owned only upon 
one side. Within these limits his right of fishery was 
held to be sole and exclusive. (Washburn's Easements 
and Servitudes, 411.) The right to hawk, hunt, fish and 
fowl was held to be such an interest in land that if it was 
intended to be more than a present personal privilege, it 
must be evidenced by a grant. (Wickham vs. Hawker, 
7 Mees. & Wels., 63.) And this interest thus acquired 
was such that the owner of the fishery upon the lands of an- 
other might maintain action for trespass. (Holford vs. 
Bailey, 13 Adol. &_E1., 425.) 
The soil of navigable tidal rivers, so far as the tide 
ebbs and flows, was prima facie in the crown, and the 
right of fishery therein was prima facie in the public. 
But the right to exclude the public therefrom, and to 
create a several fishery without grant of the land, existed 
in the crown, and might lawfully have been exercised by 
the crown before Magna Charta, and could be made the 
subject of a grant by the crown to a private individual. 
(Malcolmson vs. O'Dea, 10 H. L. Cas., 593.) Notwith- 
standing Magna Charta, tlie king still retained the right 
to graiit the soil under navigable Avaters, and with it the 
exclusive right of fi,shery. And this right, exercised 
through the Colonial Governor and Assembly, has been 
recognized by our courts in confirming the title of the 
town of Brookhaven, and other towns on Long Island, 
to the exclusive right of fishery even in an arm of the 
sea. (Trustees of Brookhaven vs. Strong, 60 N. Y., 56; 
Hand vs. Newton, 92 N. Y., 88; Rogers vs. Jones, i 
Wend.. 237; Robens vs. Ackerly, 91 N. Y., 98.) 
In this country the State has succeeded to all the rights 
of both crown and Parliament in navigable waters and 
the soil under them. In England, Parliament had com- 
plete control over all the navigable waters within the 
kingdom. It could regulate navigation upon them and 
could authorize exclusive rights and privileges of naviga- 
tion and fishing. (Langdon vs. Mayor, etc., of the City 
of New York, 93 N. Y., 155.) 
The State, through its Legislature, may exercise the 
same power which previous to the Revolution could have 
been exercised by the king alone, or by him in conjunc- 
tion with Parliament, subject only to those restrictions 
which have been imposed hy the Constitution of the State 
and the United States. (Lansing vs. Smith, 4 Wend., 9.) 
It is probable that section 18 of Article III. of the 
Constitution would prohibit the Legislature from grant- 
ing to any individual or association the exclusve right of 
fishery in any of the navigable waters of the State, for 
such a grant would be in the nature of an exclusive privi- 
. lege or franchise. (Slingerland vs. International Con- 
tracting Co., 43 App. Div., 223.) And if the State had 
any title to the fish, birds and game on private lands, the 
Legislature could not give away that title to an individual 
or association seeking to park a particular territory. 
Doubtless the Legislature had something of this in mind 
when it repealed Chapter 623 of the laws of 1887, which 
provided that when any territory should be dedicated and 
designated as a private park, all fish, birds and game 
should become the properly of the owner, or the person 
or corporation having the exclusive right to shoot, hunt 
or fish thereon. But such a grant was not a necessity, 
for the proprietors of the soil through which non-naviga- 
ble streams flow have the exclusive right of fishing. 
As early as the case of Hooker vs. Cummings (20 
John. Rep., 90), it was held that in all rivers of the State 
not navigable in the sense that the tide ebbs and flows 
(except the Hudson and Mohawk rivers, to which a dif- 
ferent rule has been applied by reason of the terms of the 
grants), the proprietors of the soil through which a 
stream flows have the exclusive right of fishing therein — 
applying the rules of the common law of England to their 
full extent in that regard. This case has been often cited 
with approval, and has become one of the leading cases 
illustrating the rights of riparian owners. 
In Chenango Bridge Co. vs. Paige (83 N. Y., 178), the 
- doctrine is reiterated that the bed and banks of a fresh 
water river where the tide does not ebb and flow are the 
property of the riparian proprietor, who may use the land 
or water of the river in an}^ way not inconsistent with the 
easements of the public for passage, as on a public high- 
way. 
In Smith vs. City of Rochester (92 N. Y., 485), it is 
said that the Legislature has no more power over fresh 
water stream.s of this character than over other private 
property, except for the purpose of regulating, preserving 
and protecting the public easements. 
In the present case there is no claim that the Middle 
Branch of the St. Regis River is navigable for any pur- 
pose or in any sense. The plaintiff is the owner of the 
soil on both sides of the stream and of its bed, as well as 
of the various ponds and streams which are claimed to 
have been stocked with fish from the State hatcheries. 
Further citation of authority and illustration that when 
the plaintiff became the purchaser of the land and the 
beds of the streams and ponds, he prima facie had the 
exclusive right of fishery therein, is futile and unneces- 
sary, _ 
1 
I 
[July ii, 1903. 
What, then, was the intent of the Legislature in enacting' 
the_ parking law ? Clearly, we think, only to give one com- 
plying with its terms protection to his private rights and ' 
the right to recover a penalty in the form of exemplary ' 
damages in addition to the actual damage sustained by 
trespass. 
Article IX. of chapter 488 of the laws of 1892, as 
amended by chapter 319 of the laws of 1896, being the law 
m force when the plaintiff established his park, provided 
as follows : 
Section 212. Laying out grounds for private parks.— A person 
ownmg or having the exclusive right to shoot, hunt or fish on 
lands, or lands and water, desiring to devote such lands or lands 
and water to the propagation or protection of fish, birds or game , 
shall publish in a newspaper printed in the county within which ' 
such land or lands and water are situate, a notice, once a week, 
for a term not less than four weeks in the county where the lands 
so described are situated, substantially describing the same and 
containing a clause declaring that such land or lands and water 
will be used as a private park for the purpose of propagating and 
protecting fish, birds and game. Provided, however, That all 
waters heretofore stocked by the State, or which may hereafter 
be stocked by the State from any of the hatcheries, hatchinp 
stations, or by fish furnished at the expense of the State, shall 
be and remain open to the public to fish therein as though the 
private park law had never existed. But nothing herein con- 
tained shall be construed as affecting any rights now existing of 
persons owninor lands or holding leases of private grounds, waters 
or parks prior to the passage of this act. 
Other sections of the article provided the kind of notices 
and manner of posting upon the land, and then followed | 
section 215, which provided as follows : 1 
Section 215. Fish or game so protected not to be interfered 
with.— Upon compliance with the foregoing "provisions for pre- 
venting trespassing or for devoting lands to propagation of fish, 
birds and game, no person shall disturb or interfere in any way 
with the fish or wild birds or wild animals while on the premises 
so protected, except with the consent of the owner or person 
having the exclusive right to shoot, hunt or fish thereon. Who- 
ever shall violate or attempt to violate the provisions of this' 
section shall be deemed guilty of a misdemeanor and shall, in 
addition thereto, be subject to exemplary damages in an amount 
not less than fifteen dollars, nor more than twenty-five dollars, in 
addition to the actual damages sustained by the owner or lessee,. 
The act did not purport to give the owners of the lands 
and streams the right to fish and hunt on their own 
premises. They had that already, and they had the com- j 
mon law action for trespass against any intruder. It is ' 
not questioned but that the Legislature could give the 
right to increased damages for the doing of certain acts 
if it saw fit. The provision for treble damages for cut- 
ting and despoiling trees upon the lands of another, and 
for forcible entity and detainer, was a part of the Revised 
Statutes before the enactment of the Code, and the power 
of the Legislature in that regard has never been doubted. 
It may be said, too, that the Legislature had in mind, 
some public benefit to be derived from the establishment 
and preservation of private parks. The law was passed 
at the beginning of the agitation for a forest preserve, 
the primary object of which was to protect the wild lands 
of the State from devastation, and thereby preserve the' 
waterways of the State. Game preserves could be estab- 
lished only in mountainous regions, and the protection of 
timber is a necessity to their continuance. | 
There was saved to the State, to remain open to the 
public, all waters theretofore stocked by the State or by 
fish furnished at the expense of the State, or which might; 
thereafter be stocked ; and it is under this provision thats 
the defendant attempts to justify his trespass. But how 
stocked? The Legislature could not authorize the Statcii 
Fish Commissioners to enter upon a man's private fishery 
without his knowledge and- consent, and deposit therein 
fish hatched by the State, and thus convert his property 
to public use and destroy his private rights. This would 
be the taking of private property for public use without 
just compensation. One might own a tract of thousands 
of acres practically valueless as timber land or for agri- 
cultural purposes, and yet of very great value for the es-: 
tablishment of a private park. The defendant contends, 
that the Legislature intended to provide that the act of a; 
stranger, in conjunction with the determination to stock 
of the Fish and Game Commission, in depositing a few 
fish hatched at the State's expense in one of the streams; 
on lands of an individual or corporation, should have'; 
the effect of dedicating to the public an entire territory,,' 
the waters stocked as well as all other waters on the 
lands, and that the owner and his gi-antees would be' 
thereafter debarred from converting it into a valuabld 
private park. This would be a more complete destruction 
of riparian rights than the declaring of a stream a public 
highway for the floating of logs, without adequate com-' 
pensation, which the courts have uniformly condemned. 
(DeCamp vs. Dix, 159 N. Y., 436; Brewster vs. Rogers 
Co., 169 N. Y., 73.) The owner of a stream could doubt- 
less dedicate it to the public use, as he could his lands tec 
a public highway, but this imports consent on his part; 
and a bargain entered into between him and the public 
authorities. 
Nor do we think that if one pond or stream on a tract 
of land should be so dedicated to the public by the owner 
consenting that it be stocked by the State, that the owner 
would thereby dedicate to the public all the other separate 
streams and ponds which might be on all the land that he ' 
owned. It is true that fish, at certain seasons of the year, 
pass from one portion of the stream to another. Trout 
fry placed in a small tributary, as they obtain greater size, 
work to the main stream, and so up that stream, and may 
never go back to the original water in which they were 
placed. But this does not constitute a stocking of the 
main stream. The language of the statute is, "all waters 
heretofore stocked." In common parlance, the use of 
the term "waters," as applied to various lakes, streams 
and ponds on a tract of land, imports a designation of 
them in severalty, and in such sense we think the term is 
used in the statute. Our interpretation of the statute is 
that the stocking of streams and waters, the beds and ad- 
jacent lands of which are owned by an individual or cor- 
poration, in order to give the right to the public to fish 
therein, must be with the consent of the owner or one, 
having a right of fishery therein, and that only the par- 
ticular stream, lake or pond thus stocked is so made pub- 
lic, and that such stocking does not open to the public 
streams to which they may be tributary; and that this 
stocking of such a stream by owners above or below 
does not have the effect of opening to the public that part 
of the stream situated on lands of an owner who has not ' 
consented to such dedication, and that the public is not 
permitted to follow the migrations of the fish and take 
them in that part of the streani on private lands without 
the owner's consent 
