336 
FOREST AND STREAM. 
[Oct, 21, igwsr" 
exclusive right of fishery in the waters as an entirety in 
which , defendant fished, as contemplated by the Private 
Park law. The waters in question were not private 
within the meaning of the statute. ' 
“In order that the plaintiff park any of the waters of 
the Middle Branch of the St. Regis River he must have 
the exclusive right of fishery in all the waters of this 
river. This he did not have.” 
“The Middle Branch of the St. Regis River neither 
rose nor emptied nor ended on plaintiff’s alleged private 
park. It ran across it. Plaintiff did not own this stream 
nor did he ^own more than a parcel of land about and 
underneath it.” 
Point 3: “The court erred in , not granting defendant’s 
motion for a non-suit since the plaintiff did not own the 
fish in the Middle Branch of the St. Regis River, which 
would be necessary in order to recover the exemplary 
damages sued for. The defendant had as great a prop- 
erty right in such fish as did the plaintiff. They were the 
property of the people of this State before their capture 
by defendant, and the waters containiiag them could not 
be made into a private park. Plaintiff neither alleged nor 
proved actual damages sustained. Therefore exemplary 
damages cannot be awarded him. 
“The fish disturbed and caught by the defendant in the 
Middle Branch of the St. Regis River during the open 
season of 1902, mentioned in the complaint, were, prior 
to their capture, the property of the people of the State. 
“ ‘The game and fish within the boundaries of the State 
belong to the people in their unorganized capacity, and 
may be taken by any citizen, without fee or license, at 
any time during the open season.’” 
, Point 4: “The court erred in its interpretation of the 
Private Park law. As interpreted by the county court, it 
is unconstitutional and void and no action can be main- 
tained thereon. 
“The Private Park lawq as interpreted by the county 
court, is unconstitutional and void in that a person 
catching fish in the close season in waters, the Middle 
Branch of the St. Regis River, e. g., and on the land of 
plaintiff,- in question, may be twice convicted of a crime 
for the same disturbing and catching of fish. He may be 
convicted of a crime under said section 203, and also be 
convicted of a crime under section 69 of the Forest, Fish 
and ,'Game law. , He may also be compelled to pay two 
penalties, one under each of the above sections, the one 
to an individual and the other to the State. This would 
be putting twice in jeopardy for the same offense, in viola- 
tion of section 6, article I. of the State Constitution. The 
statute, as construed by said court, would appropriate 
public property (the people’s fish and game) for private 
purposes in violation of section 20, article HI., of the 
State Constitution, the law not showing the consent of 
two-thirds of all the members elected to each branch of 
the Legislature.” 
Point 5 : “The court erred in not granting the defend- 
ant’s motion for a non-suit since the proof of user of the 
lands and waters in question as a private park for the 
purposes of propagating and protecting fish, birds and 
game, or eithqr fish, birds or game is wholly inadequate 
within the true intent and meaning of the statute. Plain- 
tiff did not propagate fish. 
“The plaintiff ‘has not propagated fish in the waters or 
game upon the lands. This was necessary in order to- 
form a private park. The public declaration published by 
him declaring that plaintiff devoted the lands and waters 
to- the propagating and protection of fish, birds and game 
is false, as to ‘fish,’ and as to ‘birds’ and as to ‘game.’ 
The' nature of the St. Regis River is such that the idea 
of propagating and protecting fish therein is entirely out 
of question, as the plaintiff must have control of the 
beds and banks of the whole stream_ in order to do this. 
Either the whole or none can be private and so parked. 
“The defendant contends that the statute contemplates 
propagation of fish where the parking is for a fish park, 
and that the notices posted and published shall declare 
that, such waters will be used as a private park for the 
purpose of propagating fish. The statute does not imply 
that the people’s property may be taken by a private per- 
son, and natural propagation continue for_the sole benefit 
of such private person, and that such private person be 
thereby given the benefit of a penalty and the power to 
declare the taking of public fish, the property of all the 
public, without his consent, a crime.” 
Point 6; “The court erred in not granting defendant’s 
motion for a non-suit since flowing waters are public 
property ; fish, whether nropagated _by_ natural means or 
by the State, are public property; it is the duty of the 
Forest, Fish and Came Commission of this State to pro- 
pagate! and distribute fish and keep up the supply thereof 
in the public waters of this State; whether such waters 
were stocked by the State prior or subsequent to April 
17, 1896, no action upon the Private Park law can be 
maintained for fishing in them; many streams, including 
the Middle Branch of St. Regis River, and waters on 
plaintiff’s lands, had been duly stocked by the, State before 
plaintiff’s attempted parking, therefore, this action on the 
statute cannot be maintained. 
“It is provided by section 212 of the Forest, Fish and 
Came law — being of the Private Park law as amended 
by chapter 319 of laws of 1896 — that no action can be 
maintained on the statute for fishing in waters duly 
stocked by the State. The waters in question in which 
defendant fished had been duly stocked by the State be- 
fore the plaintiff’s attempted parking of them.” 
Point 8 : “The court erred in not granting defendant’s 
motion for a non-suit, since the plaintiff cannot maintain 
this action in his name. 
“An action for unlawfully capturing fish— the people s 
property— cannot be maintained only in the name of the 
people of the State. The defendant’s right to and prop- 
erty in the fish in question, before capture, was co-equal 
with plaintiff’s right to and property right in said fish. 
Therefore, neither can nor .should be allowed to maintain 
an action against the other for the disturbing or taking 
of said fish.” 
Point 8 : “The court erred in holding that the defend- 
ant cominitted a trespass upon plaintiff’s lands and in 
directing a verdict for such trespasses. The defendant 
traveled and dshed in the highways and roads thereon 
only. These roads or highways are expressly excepted 
from the plaintiff’s alleged private park. 
“The evidence shows that the roads used by defenda,nt 
]urve been physically ■ d-efined and apparent on plaintiff’s 
land and in constant and uninterrupted use by the public 
for more than thirty years. They were public highways.” 
Point 9: .“The court erred in permitting Fred Knapp 
to testify, under objection and exception, that he saw- 
defendant on plaintiff’s private park. This was inadmis- 
sible under the pleadings. 
_ “The plaintiff was not entitled to this class of evidence 
since he failed to negative in his complaint that the 
waters included in plaintiff’s private park had, prior to 
the alleged formation of said park, been stocked with 
fish by the State and at its expense.” 
Point 10: “The court erred in not striking out the 
testimony of Eugene Flanders, on motion of defendant, 
in regard to English deer being let loose on plaintiff’s 
lands. 
‘‘Thi.; } is clearly hearsay and incompetent.” 
Point II : "'ilje court erred in not striking out the' 
testimony , of Eugene Flanders, on motion of defendant, 
in regard to the alleged increase of fish and game on 
plaintiff’s. lands. 
“The testimony of the witness shows that he had no 
knowledge on the subject.” 
Point 12: “The court erred in directing the jury that 
they find a verdict for the plaintiff and against the de- 
fendant; and further, that it be for $25 for each offense. 
It was for the jury to say how much their verdict would 
be.” 
In conclusion the defense stated that the fish in a pri- 
vate park must be private, in the sense that they have, 
been reared in private waters as cattle are reared in pas- 
tures. It was claimed that the watchers “hired to protect 
the fish, game and birds from the public” “are employed 
and act to accomplish an illegal purpose, such employ- 
ment being against public policy and in violation of one 
of the three great primary rights out of which all the 
rights of all American citizens sprang, viz.,, the right of 
property, i. e., the right to acquire property by lawful 
ineans,” meaning catch fish and kill game. 
“Plainliff has failed to create an artificial stream, pond 
or lake, or to acquire the same not stocked with the peo- 
ple’s property, and to stock them with trout propagated 
by artificial means, and to build a hatchery for the arti- 
ficial propagation of fish, and to stock said water with 
them. He has published a notice in a newspaper for four 
wrecks, and posted cloth notices around his land at a slight 
expense, all of w'hich is necessary but -wholly insufficient 
for the creation of a private park.” 
On the points of law raised in this brief, the Appellate 
Division consented that the defense in the case of Rocke- 
feller vs. LaMora take the matter to the Court of Ap- 
peals. This consent haviiag been granted, the next step 
is the one before the highe,st court in the State, by which 
it w'ill be decided whether or no Rockefeller has the right 
to exact a penalty from people who catch trout from 
streams on his lands. If Mr. Rockefeller wins, the cause 
of private parks will receive an aid, without which they 
cannot exist. And at the same time the people will be 
deprived of their rights in the fish, game and birds on 
more than 700,000 acres of Adirondack forest lands. The 
LaMora case is not an action for mere trespass; it is one 
to secure a penalty for trout caught, and those trout are 
public property, according to laws and opinions reaching 
back to the days of old England. 
Raymond S. Spears. 
to., death some of the -fishes. Four different instan- 
:aneous view's then succeeded admirably. I am glad to 
have proved by my experiments that even fish in water 
"ye tamable." — Translation made for The Literary 
Digest. 
Lot a B t by Half a Fish. 
Two FRIENDS of mine had gone to a small Wisconsin 
lake for a fev days’ outing, and the first day out they 
m.ade an unusually successful catch. They quit at I 
o’clock, and at that time Edwards had landed twenty-four 
nice ones. On the way back to the camp he twitted 
Adams, his companion, on his failure to equal that record. 
‘Tell you what I’ll do,’ Adams finally responded, 
desperately. ‘I’ll bet you a bottle of wine that you and 
the guide together don’t catch as many as that by the 
same hour to-morrow.’ 
“‘Pshaw, that’s easy; the bet’s on,’ and so it was 
agreed. 
“The next morning they were out early, Adams taking 
one boat and Edwards and the guide going in the other. 
They remained close together, and careful tally was kept 
on the finny prizes as they were brought to the surface, 
Finally only half an hour remained, and Edwards had 
twenty-three fish — one short of the required number. 
“ ‘Cuess I’ll drink on you, old man,’ Adams called out 
tauntingly, when only five minutes of the time was left 
and Edwards had failed to get even a nibble. 
“ ‘I guess you -vv-on’t : I’ve got a bite now,’ was the ex- 
cited rejoinder, and Edwards began reeling in his line. 
“ ‘Dum it ; he got awa}',’ he ej aculated a moment later 
when the line suddenly slacked. 
“‘Well, it’s me that has the bite,’ exclaimed Adams, 
and he began pulling on his line. But the fish was off in 
an instant. 
“ ‘Hold on ; here he is again !’ This time it was Ed- 
wards who was doing the talking. 
“And.^ SO' the seesaw continued until Only a minute of 
the time remained, when finally they reeled in their lines 
and found that each had secured the same fish. A bass 
had swallowed Adams’ hook, and in trying to get away 
had run afoul of Edwards’ line and was firmly caught in 
the gills. _ _ . 
“Each claimed the bass, Adams asserting it was his 
property because it had swallowed his hook, and Ed- 
wards f3eing eciually firm in the belief that his gill hold 
was the one which should count. It finally became neces- 
sary to leave the question to arbitration, and the referee 
ruled that the prize should be divided. 
“This was how it happened that Edwards lost the 
wager by half a fish.”— Milwaukee Sentinel. 
The Taming of Fish. 
That fish may be tamed like animals or birds has 
recently been shown by- a Swiss physician who con- 
tributes to a recent number of the Appenzeller Zeitung 
an interesting and curious narrative reprinted in the 
Illustrirte Zeitung (Leipsic). He says: 
“I have never yet heard nor read that any one has 
tried to tame fish in water; and I was therefore desiring 
not a little to test the eventual possibility of doing so, 
when a very favorable opportunity was offered me._ I 
was taking baths for my health in a private bathing 
house on the Lake of Lungano. At the north and 
south sides of the building there live in a heap of stones 
a family of loaches (Cavedini), consisting of about six 
different spawnings— altogether perhaps 100 or 150 
fishes. The loaches (the largest of which might be 
about as long as a full-grown brook-trout) used often 
to swim over into the bath house, but would flee when 
I entered the water. I then sat down (at the time when 
the warmth of the water permitted doing so) a whole 
hour, up to my neck in the water, supporting my hands 
on my knees and holding in each a piece’ of bread as 
big as my fist, so that it was thoroughly soaked in the 
water. A like procedure I repeated in the -evening and 
so on the following days, each forenoon and each 
evening. 
“At first the loachers would have absolutely nothing 
do with the toothsome morsel placed at their disposal, 
but anxiously avoided the living statue in the water, 
which probably was not quite as immovable as the 
marble ones in the museums. Soon, however, several 
members of the youngest spawning ventured, with the 
most extreme caution, to take a nibble at the bread, 
quickly starting back if my hands moved even a milli- 
meter. Gradually came representatives also of the 
second youngest generation, and so by degrees from 
day to day ever older- and larger specimens, till finally ' 
all alike became, tame and whirred and circled round 
me as soon as I stepped into the water. With true 
curiosity the whole company would make a dash at 
the bread that I brought with me. I could move -my 4, 
body and hands as I pleased, could lift both hands-n: 
with bread and fishes like a shot out of water, ^fidn'; 
plunge them in again; all this did not disturb them.-|^; 
They ' would come into my hands, glide jihrough my ^ 
fingdi's, and let me stroke them on the head, the back 
and-;t.he sides,s.the big ones as well as those of medium-^ 
s'ze-.and the little ones. _ 
“When one day I had myself photographed with niy 
proteges, it was found that the color of the fishes 
differed too little from that of the water for a sharp 
picture to be given. We therefore brought two large 
w'hite sheets to spread on the bottom of the lake. Our 
fear that the fishes might be frightened away by the 
operation proved groundless. They romped so around 
the ’white sheets that we had much trouble to lay them 
-dov'-fi ?in4 weight them with stbn'eg, without pressing 
Old Man Ba'sford^s Red. 
I RAREL^' go down the street but some one buttonholes 
me to hastily recite some fishing or hunting experience. 
I ran into old man Bassford the other day near his office 
and nothing would do but I must step in and hear of a 
curious experience. 
“Over a year ago,” said he, “I in some way jammed 
and sprung askew the handle of one of my reels. I laid 
it aside thinking to have it fixed some day. Last night 
I woke up dreaming about that reel and found that I 
could not get the thought out of my head. I could see 
the crooked and skewed handle and it annoyed me and 
made me so restless that it looked as if I would kick and 
thrash around until daylight. 
“The reel was in a tin box in my dressing room, where 
I keep my truck, and the notion seizing me I jumped out 
of bed, w'ent into the dressing room and lighted the gas. 
1 found screwdriver, hammer and file, improvised an 
anvil out of an ax head, took the reel from the box and 
began operations. It was i o’clock in the morning. Well, 
I of course made noise, and I guess awoke everybody in 
the house. 
“I know I kept up a fusilade of replies to the queries 
hurled at me through the closed bedroom door._ One of 
my boys, wanted to go for the doctor. I told him to go, 
but he went back to bed. Another one wanted to know 
if I was not going crazy, and so it went. But I kept ,on 
filing and hammering. I found a washer and in time by 
pounding and filing I got that into shape and fitted it in 
place. And when the job was done and the handle on 
and the reel looking ship-shape and proper, once more I 
looked at the hands of the clock pointing to 3,_ drew a 
long breath, put out the light and crawled back into bed. 
There were no more crooked reel handles to annoy me 
and I .slept through uninterruptedly until 7 o’clock. 
“At the breakfast table I told the grown-up boys and 
girls that a loss of a little sleep cut no figure with them, 
that when they were young they had kept me awake 
many a night at 2, 3 and 4 in the morning and turn about 
being fair play I thought if I could get four hours sleep 
at the expense of an hour or so of wakefulness- I was 
entitled to it. One thing is certain, if I had not straight- 
ened out that crooked reel-handle I would have enjoyed a 
condition of insomnia for the rest of the night. The 
mending of that reel handle certainly did the business.” 
Charles Cristadoro. 
Here is Something Ne’w. 
New York, Oct. 7.- — Editor Forest and Stream: A ' 
friend told me this one as an actual happening: He was 
trolling this summer for big-mouth bass in a northern 
lake. He had a strike and played it for a bass, for it 
went up in the air. Then it sounded, -and he found then 
;his hook was caught on something. The boat was backed 
Mo-'the spot and the obstacle slowly lifted to the surface. 
■ Jt proved to be a waterlogged branch, and his hook was- 
■Tast in it, and entirely separate and apart from the fish. 
But with the branch, and hanging on to it by his teeth, 
came the bass, so deeply engrossed, that the net was put 
under him, and the branch lifted from the water and 
shaken before he let go his hold and dropped back into 
the net. 
■ My informant has heretofore borne an enviable reputa- 
tion for veracity, and I know that the only bait he uses is 
what he puts on his hook. Moreover, I heard him tell 
the story twice, and the second time he neither doubled 
the size of the fish nor stated that it swore at him as it 
came up with the branch. And yet it would seem that 
it must have been powerful _mad to try to get even with 
the hpbk by gnawing wood in that way. E. G. -B, 
