March 19, 1904.] 
FOREST AND STREAM. 
233 
like _ any other boots, right, and so he spent his time 
admiring and adoring the features of the great Bismarck. 
Now as to rods. How often do you see depicted in the 
illustrated, journals a picture of a trout stream. Every- 
thing is right about the stream — no blackened timber, no 
right-angled log-jants, ■ raw or . otherwise ; no shingle, no 
sound of shod canoe-poles coming round the bend, no 
hemlocks or smoky, silent Indian in evidence, and no 
red gods except may be that the angler has been throw- 
ing a red-ibis. So, as far as the stream goes, peace 
and harmony prevail. The angler is correct from the 
wader immersed to his hips to the felt hat well hooked 
with convenient flies. 
But the rod ! Oh, ye gods and little fishes ! The rod 
is correctly drawn, because, no doubt, the artist had one 
in- front of him in his studio. But the bend! And the 
handling! From under the shelving- rock w:here a tug- 
ging, rebellious, and obstinate trout is having it out with 
the lure, the leader comes. The strain on the fragile 
rod must be terrific, for, if one's eye does not deceive, 
it is but a 3^-ounce rod. Is" the angler giving the trout 
the butt ? No, my readers ! With his right hand grasp- 
ing the rod butt close above the reel, he grasps the butt 
joint Avell up near the lower ferrule of the second joint 
with his left hand ! 
You put the picture out of sight and mind and turn 
over to the next illustration. It is positively painful. You 
can't stand it. Something is going to give or break or 
snap while you are even looking on, and, fearful lest you 
m,ay hear the profanity, you turn your head away. 
A. B. Frost don't make breaks of this kind. It is safe 
to say that he fishes, and shoots as well, and he knows, 
and puts flesh and blood and action into his pictures. 
Looking at one of his illustrations is like looking at 
a perfectly dressed woman. The tout ensemble is so per- 
fect that five minutes afterward you could not minutely 
describe any one part of her apparel. So with Frost's 
pictures. You give one look, and mentally transfer your- 
self into the person of the gunner or fisherman, and are 
doing it all over again. And when a man makes you do 
that, it's art, that's what it is. Charles Cristadoro. 
Fly-Fishing— Wet and Dry, 
BY DR. JAMES A. HENSHALL. 
"While fly-fishing, wet or dry, is unquestionably the 
highest branch of angling, and far preferable to bait- 
fishing for trout, it does not follow that fishing with the 
dry, or floating fly, is a superior art to fishing with the 
v/et, or sunken, fly, as claimed by some of the dry fly- 
fishers of England. 
Judging from recent communications on the subject in 
ihe English sportsmen's journals, the ultra dry fly en- 
thusiasts have arrogated to themselves the distinction of 
practicing the most artistic and sportsmanlike method of 
angling, and look askance, if not with disdain and con- 
tempt, at the wet fly-fishers, whom they designate as the 
"chuck and chance it" sort. 
I cannot think that the position they have assumed 
can be justly maintained, or that it is warranted by the 
facts of the case. As dry fly-fishing is being taken up 
by a few American anglers, it may be well enough to give 
the alleged superiority of the method some consideration. 
Some years ago the modus operandi of dry fly-fishing 
was explained to me, personally, by Mr. William Senior, 
editor of the London Field. The angler waits beside the 
swim until a trout betrays its presence by rising to a 
newly hatched gnat or fly, creating a dimple on the sur- 
face. The angler then, kneeling on one knee, having a 
knee-pad strapped on, cautiously casts his floating May- 
fly, with cocked up wings, anointed with paraffine or vase- 
line. The fly is deftly and lightly cast, up-stream, a little 
above the swirl of the trout, and permitted to float down, 
as naturally as possible, over the fish. There being no 
response after a cast or two, the angler again awaits the 
tell-tale evidence of a trout before again offering the 
buoyant lure. 
Now, if I have stated the case correctly, I cannot im- 
agine why this method is claimed to be on a higher plane 
of angling than the "chuck and chance it" method. Cer- 
tainly a knowledge of the habits of the trout is not essen- 
tial, inasmuch as the angler makes his cast only on the 
appearance of the fish. 
It seems to me to be akin to the practice of shooting 
pheasants with the help of a beater.. The gunner, on 
one side of a hedge, does nothing but wait for the flush- 
ing of the bird by the beater on the other side, and at its 
appearance he bangs away. 
Now, if it should be claimed that this plan of shooting 
is on a higher plane of sportsmanship than beating a 
stubble or turnip field with well-trained setters or 
pointers, one can readily see why dry fly-fishing is also 
thought to be on a higher plane of angling than wet 
fly-fishing, for the methods pursued in each case are 
somewhat analogous : The shooter waits until the bird is 
dislodged by the beater, while the angler possesses his 
soul in patience until a trout shows on the surface. 
On the other hand the real sportsman, with some 
knowledge of the habits of his quarry, works over the 
ground with his dogs, selecting such places v^^here he 
knows from experience that the game "uses," until the 
covey is pointed. He takes as much, or more, real pleas- 
ure in the working of his dogs and the exercise of his 
bird knowledge as in shooting the game when flushed. 
So the wet fly-fisher, wading down-stream or up- 
stream, brings to his aid his knowledge of the habits and 
haunts of the trout, and casts his flies over every likely 
spot where his experience leads him to think a fish may 
he. It is this eager expectancy or fond anticipation 
with every cast that makes up much of the real pleasure 
of angling, and which is utterly lost to the dry fly-fisher, 
who waits and watches on the bank like a kingfisher on 
his perch. 
While there can be no objection whatever to dry fly- 
fishing, per se, and which, moreover, I welcome as a 
pleasing and meritorious innovation, I feel compelled to 
enter a protest against claiming for it a higher niche in 
the ethics of sport than wet fly-fishing. And with all due 
respect for the dry fly-men of Great Britain, I cqnnot ad- 
mit that they trot in a higher class than those "chuck and 
chance it" fishers of honored and revered memory-— Sir 
Humphrey Davy, "Christopher North" and Francis 
New Jersey Lake Rights. 
Decision of the New Jersey Court of Errors and Appeals in the 
Swartswood Lake Case. 
The right to fish in an inland lake of New Jersey 
cannot be separated from the ownership of the lake 
and taken under the power of eminent domain, be- 
cause, first, the natural supply of fish therein is so small 
as to be incapable of meeting a public demand;- and, 
second, the object of acquiring such a right is, not use, 
which implies utility, but mere sport or pastime. 
Query: Is the value of such a right capable of es- 
timation, so that a compensation may be awarded 
therefor which shall be just with respect both to the 
private owner and to the public purchaser? 
C. D. Thompson and Charles L. Corbin for plaintiff 
in error. Messrs. Griggs and Harding for defendant 
in error. ^ 
The opinion of the court was delivered by Dixon, J. 
"An act to acquire rights of fishing common to all 
in fresh water lakes in certain counties, to acquire 
lands adjoining thereto for public use and enjoyment 
therewith, and to regulate the same" (P. L. 1901, p. 
333), declares that, in any county of the State wherein 
are fresh water lakes having an area of water surface 
exceeding one hundred acres, a commission may be 
appointed which shall have power to take in fee or 
otherwise by purchase, gift, devise or eminent domain, 
and to maintain and make available to the public the 
right of fishing in such lakes. Under this statute a 
commission has been appointed in Sussex county and is 
attempting to take by eminent domain the right of fish- 
ing in Swartswood Lake, which belongs to the plaintiff 
in error. The plaintiff resists this attempt upon the 
ground mainly that the power of eminent domain can- 
not constitutionally be exercised for the stated purpose. 
In olden times the eminent domain seems to have 
been employed only in cases of State necessity, and 
there is no instance of its exercise in New Jersey prior 
to 1776 except for highways; but undoubtedly its scope 
has been much enlarged in recent times to meet" the 
advance in social conditions. Scudder v. Trenton Del. 
Falls Co., Saxt. 694. Still, even as late as 1852, Chief 
Justice Green spoke of the objects for which the State 
exercises this power as being few in number. 3 Zab. 
357- 
Under our State Constitution (Art. i, par. 16) pri- 
vate property can be taken only for public use. 
Whether the end sought to be attained by the' taking 
is a public use is a question to be determined by the 
courts, although it is said there is a presumption in 
favor of a use declared by the Legislature to be pub- 
lic. Mills Em. Dom. S. 10; Lewis Em. Dom. S. 158; 
Scudder v. Tretnton Del. Falls Co., Saxt. 694, 727; 
Olmsted v. Morris Aqueduct, 18 Vroom, 311; Nat. 
Docks R. R. Co. V. Central R. R. Co., 5 Stew. Eq. 755, 
764. The language of the constitution does not author- 
ize property to be taken "for public enjoyment" or 
"for public purposes," or generally "for the public." 
Its expression is "for public use," which implies an 
idea of utility, of usefulness, not necessarily inherent 
in the other phrases mentioned. 
The duty is, therefore, devolved upon this court to 
determine whether the object to be subserved by the 
condemnation of the right to fish in the plaintiff's 
lake is a public use. 
In order that a use may be public, it is not essential 
that the whole community should be able directly to 
participate in it. Thus, a free school for children is 
for a public use, although only a fraction of the com- 
munity can attain it. But it is essential that the utility 
should in a substantial measure, concern the public, as, 
for example, the education of the young concerns the 
community. 
The right to be condemned under this statute is 
merely the right to fish. Such a right is in the ancient 
legal French called a right "profit a prendre," a right 
so peculiarly for personal enjoyment that it is in- 
capable of being acquired by the general public, either 
by custom (Cobb v. Davenport, 3 Vroom 369) or by 
dedication (S. C, 4 V. 223; Allsright v. Cortright, 35 
V. 330). No doubt there is a public right of fishing 
recognized by municipal law; it exists in the waters 
of the ocean along the coast and in the arms of the 
sea, as far as the tide ebbs and flows. But this right dif- 
fers from that now under consideration in several im- 
portant respects. In the first place, it is a mere incident of 
the public ownership of the pulalic waters, while the 
object of the present proceedings is to sever the right 
of fishing from the title to the lake and give it an in- 
dependent existence. If the Legislature had provided 
•for the condemnation of the lake, so as to confer upon 
the public the right of restoring thereto for all pur- 
poses to which it is adapted, the condemnation might 
then have been supported on the precedents which find 
a public use in parks, and the right to fish would have 
passed as an incident of the public title; but under this 
statute the ownership of the lake is to remain private. 
In the next place, the natural supply of fish in the pub- 
lic waters is practically inexhaustible, if the right to 
fish therein be subjected to such regulations as will 
reasonably guard it from the free enjoyment of the gen- 
eral public; but the natural supply of fish in the inland 
lakes of New Jersey is so small that if the right to catch 
fish therein were excercised by persons sufficiently 
numerous to be deemed the public, the supply would 
soon come to an end. Lastly, fishing in the public 
waters has from time immemorial constituted an in- 
dustry fostered by law for the supply of the general 
market, while fishing in private waters has been and 
can be only for individual amusement and gain. We . 
think, therefore, that for present purposes there is no 
substantial resemblance between the common right to 
fish in public waters and the right now in question. 
I turn then to the consideration of the matter in 
view of the rules which have been laid down as aids 
in determining what is a public use within the meaning 
of this provision of the constitution. A definition of the 
phrase has not, I think, been judicially attempted, but 
aniong the statements of the doctrine to be found in 
the books, that of Prof. Cooley seems most likely to 
subserve the _ general welfare for which the constitu- 
tiQiisI po^^r Is 4^legated, and at tiie §ame4ime to pro- 
tect private property, which is equally a ward of our 
constitution. He says (Const. Lim. 553), "The reason 
of the case and the settled practice of free government 
must be our guides in determining what is or is not 
to be regarded as a public use; and that only can be 
considered such where the Government is supplying 
Its own needs, or is furnishing facilities for its citizens 
m regard to those matters of public necessity, con- 
venience or welfare which, on account of their peculiar 
character and the difficulty of making provision for 
them otherwise, it is alike proper, useful and needful 
for the Government to provide." 
Applying this as the test, the present statute cannot 
be supported. 
The right to be enjoyed under this statute is neces- 
sarily the right of each individual who exercises it to 
abstract from what is designed by the statute to be a 
common stock such portion as he can secure, and to 
appropriate that to his own benefit. This is for pri- 
vate, rather than public advantage. The statute does 
indeed contemplate the acquisition of the common stock 
by public agents, but they are to acquire it for private 
benefit. If the common stock thus to be acquired were 
capable of supplying an unlimited number of persons, 
then they might be deemed in the constitutional sense 
the public; but, as already stated, the stock would be 
quite inadequate for such a demand. The fact that a 
small supply is tendered free to the first takers does 
not show that, the public can enjoy it. 
But not only does the constitution require that the 
property taken should be for the public; it is also neces- 
sary that it should be for use. The chief purpose in 
the enjoyment of the property must be utility; but it 
cannot be doubted that the main object of the present 
statute is to furnish a means of amusement or sport to 
the few persons who have the inclination and leisure 
for such pastime. The public utility to be subserved 
by such indulgence is imperceptible. "The reason of 
the case," therefore, does not seem to warrant the 
conclusion that the proposed taking is "for public use." 
When we look to "the settled practice of free gov- 
ernments" we find no parallel for the present enter- 
prise. There are many instances of the exercise of 
eminent domain for the purpose of furnishing facilities 
to be enjoyed by individuals. Such are parks, high- 
ways, ferries, railways, telegraph, and telephone lines, 
etc.; but these differ from the right now under con- 
sideration in important respects. First, they are es- 
sentially useful; secondly, they are used by great num- 
bers of people; and thirdly, their use by the individual 
abstracts nothing appreciable from the common op- 
poi-tunity of use. 
There are also some instances of the exercise of the 
power in order to afford facilities for private enjoyment 
where it is intended that each individual shall abstract 
a portion from the common stock. An example ap- 
pears in the condemnation of water for domestic pur- 
poses in populous neighborhoods; but here also marked 
differences from the present scheme are observable. 
The end sought is utility of the greatest urgency, and 
the natural supply is so abundant that private abstrac- 
tion cannot exhaust it. In all such instances these 
characteristics will be found in substantial measure to 
make them of use to the public. We have found no 
instance of the exercise of the power in order to afford 
a means of pastime capable of being enjoyed by only a 
few persons. 
There is another consideration deserving of some 
weight. The constitution requires that on taking pri- 
vate property for public use, just compensations should 
be made to the owner, and this implies that the prop- 
erty taken shall be reasonably capable of just estima- 
tion. The lake itself could, no doubt, be fairly ap- 
praised, as could, probably, the right of any individual 
or of any specified number of individuals to fish therein; 
but i know of no criterion by which the right of an un- 
limited number of persons to spend their time upon the 
lake for the purpose of catching fish could be valued. 
It might be that the appraisers would evade the dif- 
ficulty by awarding to the owner the full value of the 
lake; but in that case justice would require that the 
lake itself, and not a mere incidental right in it, should 
become public property. 
We think, therefore, that neither in the reason of 
the case nor in the settled practice of free governments 
is there legal support for the proposed condemnation. 
The power of eminent domain is one of the ex- 
treme powers of government. When employed for the 
purpose of enabling it to perform its functions its 
scope is limited only by the wisdom of the Legislature. 
But _ when it is exerted with the view of furnishing 
facilities to private individuals, it„so easily runs into 
the taking of one man's property to give it to others, 
in disregard of that right which the constitution declares 
to be inalienable, the right of protecting property, that 
it behooves the courts, where private owners can be 
fully heard in their own behalf, to take care that con- 
stitutional rights are guarded and constitutional limi- 
tations observed. 
On full consideration we are constrained to adjudge 
that the present proceedings are designed to take the 
plaintiff's property for other than the public use, and 
are therefore illegal. 
The judgment of the Supreme Court should be re- 
versed, and a judgment entered setting aside the pro- 
ceedings taken under the statute. 
Jonah and the Popf Whale. 
A YOUTH had preached in the College Chapel [of Glas- 
gow] . After service the professors in the beautiful "Fore 
Flail" were discussing the sermon. They were all very 
complimentary. But Prof. Buchanan (the great Profes- 
sor of Logic, whom, strange to say, Archbishop 
Tait did not think very clever), broke in: "Oh, don't 
say that. There was a sad want in our young friend's 
sermon. He said a great deal about how Jonah felt. I 
should have liked to hear something about how the whale 
felt !"— "Twepty-five Years of Andrew's." 
All comnmific^tioiis iatende4 lor Fpilxst ahd St^kam should 
always be addressed to the Forest and Stream Publishspg Co.^ 
