Forest and Stream. 
.A Weekly Journal of the Rod and Gun. 
Copyright, 1904, by Forest and Stream Publishing Co. 
Terms, |4 a Year. 10 Cts. a Copy. { 
Six Months, ^2. ) 
NEW YORK, SATURDAY, FEBRUARY 4, 190B, 
j VOL. LXIV.— No. 6. 
) No. 346 Broadway, New York. 
• FISHING TRESPASS. 
The notion that one may invade private property for 
the purpose of exercising an assumed right of fishing in 
public waters has -wide vogue and persistency worthy of a 
better cause. It has come up in the courts repeatedly, and 
in the final decision always disastrously. We have 
recorded numerous decisions on the subject. There was 
a Vermont case ; in 1892 the Legislature adopted a law 
to the effect that crossing uncultivated lands to reach 
public waters for the purpose of fishing should not be 
actionable unless actual damage were shown; but when 
a case got into court it was held that the law was un- 
constitutional because, in effect, it was taking private 
property for private use without the consent of the owner. 
"The Legislature could as well pass a law," said the 
court, "that any private property may be crossed against 
the will of the owner for the purpose of reaching a high- 
way by land, as to pass one that it may thus be crossed 
for the purpose of reaching public waters for the purpose 
of taking fish therefrom." 
The Swartswood pond case in New Jersey was another 
one in point. Here the claim was made that the waters 
had been stocked with landlocked salmon by the State, 
that in consequence there was public right of fishing, and 
that an individual, as one of the public, had the right to 
enter upon the private property of the owner to take the 
fish. Here again the contention failed to stand judicial 
scrutiny. The court declared that contention of a right 
to fish was sustained neither by common law nor by 
statute. There is in the common law "no general rule 
authorizing a member of a community, merely as such, to 
invade private property in order to reach something that 
is devoted to the public." Nor do the acts relating to fish 
and game "manifest a legislative intent to legalize what 
would otherwise be trespass, in pursuit of a private ad- 
vantage, and if they had manifested such intent, it would 
be to that extent invalid." 
The point has been threshed out in New York, where 
if there were any statutory justification for fishing tres- 
pass, it would be found in the act of the Legislature 
which provided that all water theretofore stocked by the 
State or which might thereafter be so stocked should 
remain open to the public to fish therein. The most recent 
case nullifying this legislative provision was that of 
Rockefeller vs. Lamora, which has already been reported 
in these columns. Lamora claimed the privilege of fishing 
in certain Adirondack waters owned by Rockefeller, bas- 
ing his claim upon the contention that the waters had 
been stocked by the State, and that as a citizen of the 
State he was justified in trespassing upon the Rockefeller 
preserve to take the fish. The court pointed out that 
under the operation of such a law the State Fish Commis- 
sioners might enter upon a man's private fisheries with- 
out his knowledge and consent, and by depositmg in them 
fish hatched by the State, convert his property to public 
use, and thus destroy his private rights, which would be 
taking private property for public use without compen- 
sation. "The effect of the law 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 compensation, which the courts have uniformly 
condemned." 
The latest manifestation of the fishing right delusion 
is reported from Colorado in the case of Hartman vs. 
Tresise, now in the Supreme Court. The facts as agreed 
upon by both parties were these : 
"i. That the plaintiff is the owner of, is in the pos- 
session and enjoyment of, and has properly inclosed with 
a lawful fence, the land described in the complaint. 
"2. That the plaintiff has at all times had, and now 
has, notices posted forbidding trespassing and fishing on 
his premises. 
"3. That the defendant went upon and into the stream 
which flowed through said premises, for the purpose of 
fishing; that he had gone there frequently against the 
protest and warnings of the plaintiff, given to him person- 
ally by the plaintiff, and that he had refused repeatedly to 
quit fishing in said stream, and declared frequently to 
said plaintiff that he would fish in said stream whenever 
he chose to do so. 
"4. That the stream in which the defendant Tresise 
was fishing at said time was a natural stream and was 
stocked with fish at the expense of the public. 
"S. That the defendant Tresise was armed with a re- 
volver and was prepared to, and declared his intention to 
plaintiff to, resist a forcible ejectment from said stream 
by said plaintiff." 
It was held by the lower court that the only ques- 
tion to be determined was whether or not a citizen of the 
State had a right to fish in the natural streams against 
the wishes and protests of the owner of the land through 
which the streams flow. 
The assumed right as a citizen is found in an article 
of the constitution of Colorado, which declares the waters 
of every natural stream, not heretofore appropriated, the 
property of the public, and the same is dedicated to the 
use of the people of the State. And, further, upon a pro- 
vision in the fish act of 1903, which provided that the 
public should have the right to fish in any stream stocked 
at public expense, subject to actions in trespass for any 
damage done property along the bank Of any such 
stream. 
We have not space to go into a full consideration of the 
argument of Mr. Sprigg Shackleford, the plaintiff's at- 
torney, in which is demonstrated the fallacy of the decree 
of the lower court from which appeal has been taken : 
The reasoning of the judge, who rendered the decree, is fatally 
defective. His major premise is: "The Constitution declares the 
waters of the natural streams belong to the public, and are dedi- 
cated to the use of the people, as hereinafter provided (for domes- 
tic, agricultural and manufacturing purposes);" his minor prem- 
ise is: "The defendant is the people (one of the citizens of 
the State)," and his conclusion is: "Therefore, the defendant has 
the right to invade his neighbor's premises, to fish." Could there 
be a more pronounced case of non seqitihirf 
Of the act of the Legislature in which alleged justifica- 
tion is found for fishing trespass, Mr. Shackleford perti- 
nently says that it is not only obnoxious to the provisions 
of the State and Federal Constitutions, but vicious in 
itself, for it is an open invitation to trespass and to viola- 
tion of rights which have been recognized ever since 
ownership in land has been recognized by law. We may 
be confident that the outcome of this fishing trespass case 
in Colorado will be what the outcome has been elsewhere. 
When we consider the principles involved, we can antici- 
pate no other conclusion. 
CANINE GUARDIANS. 
CoNCEENiNG, a recent distressing murder which took 
place in Massachusetts, the Troy Press suggests: 
Supposing a lively fox-terrier, with a loud bark and sharp teeth, 
had been in the house when the assassin called. It would have 
greatly embarrassed, if not completely thwarted, his hellish work. 
In such circumstances, killing both a dog and a woman is a 
much more hazardous undertaking than to kill a woman alone. 
Indeed, the presumption is that the presence of a dog would 
have saved Miss Page's life. At such a country home a tramp is 
likely to call at almost any time, and finding a woman alone, to 
re.sort to crime. But every criminal intruder has a wholesome 
dread of a dog; it will readily risk death in defense of its mis- 
tress. The dog beats bolts and bars as a protection, and as a 
companion is worth more than it costs. Every woman who is 
left alone much in a house should keep a good dog; it will save 
her trouble when pestered with tramps or aeents, and in a case 
like the one in question it might save her life. 
The fame and utility of the dog as a trusty sentinel 
and guardian of the domicile, whether in town or wilder- 
ness, have been well known to man from time imme- 
morial. By long heredity from his wild ancestors, he re- 
tains the character of watchfulness, an essential trait in 
maintaining the safety and existence of the pack in wild 
life. 
As a guardian he is keen and discriminating. In the 
da3rtime he is only passively curious. Friends of the 
family are approved without a snif¥ or growl. In the 
nighttime he is actively hostile to all intruders. Of these 
few escape his attention. He is a light sleeper, and 
phenomenally keen of nose and ear. Disturbances so 
light as to be imperceptible to the household, are easily 
perceived by him and investigated silently or announced 
with wild outcry, according as he deems them to be safe 
or dangerous. 
Concerning the reckless classes of criminals and their 
professional methods, it has been stated many times that 
those whose specialty has to do with the robbing of 
houses— the sneak-thief, house-breaker and burglar — have 
a lively dread of the small, alert, active, plucky terriers. 
The fox-terrier is particularly disliked, because of his in- 
cessant watchfulness, promptness to sound an alarming 
outcry of barks, and readiness to pluckily take hold if 
need be. If pursued, he can escape through a small open- 
ing; if he acts as pursuer, he is so small and agile that 
no man is quick enough to reach him. At all times, 
whether pursuing or pursued, he is sounding an alarm. 
As a guardian of the home, the dog has been tried for 
centuries and proved to be true and useful. A good one 
costs but a few dollars, and costs no more to keep than a 
cur which is worthless. Besides being guardians, they 
are good companions, and if well bred and typical, they 
also are an ornamental appendage to a home. 
But what a commentary it is upon our social organiza- 
tion that at this stage of the world's history we should 
be enjoined to resort to the general keeping of dogs, and 
thus to adopt the expedient of primitive man, to safe- 
guard our homes and persons. 
MODERATION. 
A COMMON objection urged in criticism or depreciation 
of the laws which set a limit on the amount of game one 
may kill in a day or a season, is that they are in practice 
incapable of enforcement. Unquestionably a weak point 
in the law is that it has to do with the conduct of the 
individual when in the field and beyond surveillance. The 
law may declare that no more than ten birds may be 
taken in a day ; but whether or not the limitation shall be 
observed in actual practice must of necessity be a matter 
of individual conscience. The probabilities are that in- 
fractions of the law will not come to the knowledge of 
those whose business it may be to take notice of them. 
Nevertheless the influence of the game bag limitation 
makes for good. It does govern the conduct of many, 
actually causing them to stop when they have reached the 
prescribed limit ; and in other cases it prevents at least the 
display of execessive bags and the taking of credit for 
the making of them. In other words, it exerts a silent 
influence to create a standard of conduct beyond which 
men may not pass and make public boast of it. The exist- 
ence of the limit rule in the law, and the common knowl- 
edge that it is there, create a popular sentiment in favor 
of the restriction it is intended to secure. Men will no 
lono-er brag of a big bag of birds when the achievement 
is illicit. Thus simply to have put the bis bag under a 
ban is to have abolished it from the toleration of the 
shooter who wishes to conform to the sentiment of the 
craft and be well thought of by his fellow soortsmen. In 
sport, quite as truly as in other fields, sentiment is a fac- 
tor of exceeding power. It will secure much more than 
can ever be achieved by wardens and courts. There is 
no question that the growing sentiment is in deprecation 
of the big bag of game, and in censure of the shooter 
who boasts of excessive killing. 
The duty of every soortsman in these days^ is to preach 
and practice the doctrine of moderation. 
MINNESOTA LICENSES. / 
. Minnesota has discovered that it is one thing to de- 
clare by statute that the. non-resident sportsman must pay 
a license for shooting birds, and quite another thing to 
enforce the law. According to the current report of the 
Game and Fish Commissioners, hundreds of non-resi- 
dents invade the State every season and kill birds, and 
avoid paying license by the simple expedient of declaring 
themselves residents of Minnesota. To circumvent this 
abuse. Executive Agent Fullerton proposes a universal 
shooting license to apply to residents as well as visitors. 
Then every shooter would be compelled to show a 
license ; if he could not show that of a resident, he would 
be compelled to take out a non-resident permit. Mani- 
festly this would effectually end the non-resident no 
license. Again, Mr. Fullerton sa3^s, under the proposed 
system provision would be made for attaching a coupon 
to each license, thereby allowing the sportsmen to ship 
their game home. This has been a very vexed question 
with the Minnesota authorities, because under the law 
they could not distinguish between the genuine sports- 
men and the market-hunter, but had to prevent every- 
body from shipping. But "if a license law were in force, 
all that a sportsman would have to do would be to tear 
off his coupon, attach it to his shipment, and send to his 
home to be enjoyed by his family, while he remained in 
the field ; and in warm weather this is essential, because 
game spoils very quickly." 
