Dec 2, 1905.] 
FOREST AND STREAM 
487 
and cooked over the camp fire, breathe in the invigorating 
air of the pine woods and live simply as men usually do 
in camp, I imagine most ailments would flee before such 
treatment, to be had at a third of the expense and the 
saving of all-cure doctor’s fees. On leaving the woods 
you can take the after-cure, as they insist upon abroad, 
by stopping a week or more at the Bay of Islands to rest 
under the big trees surrounding the most comfortable 
hotel, a mile from the station. As a part of the cure sys- 
tem is a walk before lunch, you can go to the station for 
the daily paper brought by the only train of the day. 
After lunch you can rest by feasting your eyes upon the 
most intensely interesting scenery in Newfoundland. The 
Humber Basin, whose gigantic hills run precipitously 
down to the deep fiord, the dark green waters lit up by 
rippling ripples of sunshine dancing on its surface, the 
freshness of the air, the valleys running between high 
mountains in the distance, with their purple crowned tops 
make a wonderful picture of beauty and sublimity. 
Into one of these valleys to the north empties the king 
of all Newfoundland rivers, the Humber, with its ever- 
rushing and swirling current running between rocky and 
wooded banks, and its wonderful waterfall with salmon 
leaping on its surface. On your homeward journey stop 
at the Spruce Brook log cabin on Harry’s Brook. Here 
we have another log cabin hotel similar to the one on the 
Bay of St. George. This was the first one started in 
Newfoundland and was looked upon by the inhabitants as 
an innovation, as it was the first attempt at a sportsman’s 
home on the island. It is about two hours by rail from 
the Bay of Islands, facing a great inland lake, from which 
runs Harry’s Brook. As the train hauls up at the Spruce 
Brook Station, after passing through a wilderness of 
beech, pine and fir, suddenly the eye is treated to a blaze 
of color by the flower gardens surrounding the hotel. I 
have seldom experienced such a thrill of delight as. 
passed over me on beholding this garden, dropped, as it 
were, from, heaven, to give glory to the center of what 
otherwise might, be called a howling wilderness. 
C. D. B. W. 
Babylon, L. I. 
The Golly Brook Case. 
From the Utica, N. Y., Press, Nov. 14. 
County Judge Pritchard yesterday afternoon handed 
down his decision in the case of the people against Elliott 
O. Worden, the Rome attorney, who was convicted of 
violation of section 156 of the New York State forest, 
fish and game laws July 18 last, and was later convicted 
in the Rome City Court on complaint of M. R. Brigham, 
secretary of the Rome Forest, Fish and Game Association. 
Mr. Worden was determined to fight the proceedings 
against him, and after being convicted in the Rome court, 
he appealed his case to the County Court, and has been 
rewarded with a decision in his favor. The case created 
considerable attention in Rome, because it was at first 
supposed tO' be a joke on Mr. Worden, but it proved to 
be more serious when taken up by the Game Association, 
and a number of attorneys and "sportsmen interested 
themselves in it. Mr. Worden claimed he had permission 
to fish where he did and that the stream, Golly Brook, in 
the town of Lee, was not affected by section 156, and as 
proof he presented sections governing the size of the 
streams. Judge Pritchard’s decision is as follows: 
Oneida County Court. — The People of the State of New York, . 
respondent, vs. Elliott O. Worden, appellant. Elliott O. 
Worden in person and M. H. Powers of counsel for the appell- 
ant. E. M. Willis, district attorney, and H. C. Wiggins of 
counsel for the respondent. Pritchard, County Judge. 
On the 22d day of August, 1905, the defendant was 
convicted by the City Court of Rome of a misdemeanor. 
The offense charged is a violation of section 156 of the 
Forest, Fish and Game law in that the defendant on or 
about the i8th day of July, 1905, fished in Golly Brook, 
in the town of Lee. There is an appeal from such con- 
viction. The law claimed to have been violated is as fol- 
lows : 
Section 156 — Closed Season Established in Towns. 
“The Commission may, upon the request of a majority of 
the Town Board of any town in which fish have been or 
shall be placed at the expense of the State, prohibit or 
regulate the taking of fish from public inland waters 
therein for not exceeding five years from the first day of 
May next after such fish have been furnished. At least 
thirty days before such prohibition or regulation shall 
take effect a copy of the same shall be filed in the office 
of the clerk of the town to which such prohibition or 
regulation applies, and printed copies thereof, at least 
one foot square, shall be posted along the shores of the 
waters affected, not more than fifty rods apart. Whoever 
shall violate or attempt to violate any such prohibition 
or regulation is guilty of a misdemeanor, and in addition 
thereto shall be liable to a penalty of $60 for each viola- 
tion, and an additional penalty of $5 for each fish taken 
or possessed in violation of this section.” 
It appears from the evidence that Golly Brook is a 
small stream, ranging from three to ten feet wide, and 
varies from four to twenty inches in depth. It rises in 
the town of Lee and flows through part of the town of 
Rome into Canada Creek, and is about two miles long. 
The appellant sets forth several grounds for the re- 
versal of the judgment of conviction, among them that 
the information and the proof upon the trial did not show 
that a crime had been committeed, and claims that Golly 
Brook is not public inland waters within the meaning- of 
section 156. . 
Under no definition of any lexicographer, text-writer, 
sta;tute or case does Golly Brook come within the defini- 
tion of “public water,” but the respondent claims that it 
comes within that meaning by virtue of the construction 
that should be placed upon the Forest, Fish and Game 
law, and further that it has become public waters within 
the meaning of the section by virtue of a dedication by 
John Golly some time between 1883 and 1888. Then the 
decision of this appeal involves a construction of the 
Forest, Fish and Game law as to the words “public in- 
land waters,” and as to whether the words and acts of 
John Golly are sufficient to dedicate it to public use. 
Under the definitions found in the cases the term “pub- 
lic waters” is quite well defined, and the words as used in 
this statute are so plain that they hardly need a construc- 
tion. The rule as to the construction of the penal statutes 
is that they shall be strictly construed. 
There is no doubt about the power of the Legislature 
t 
u 
to regulate and prohibit fishing, even in private streams. 
People V. Doxtater, 75 Hun, 472. 
The question in this case is, did it do so ? 
It is argued on the part of the respondent that it was 
the intention of the Legislature to place a meaning upon 
the term “public inland waters” that would include all 
streams which had been stocked by the State or at its ex- 
pense, and that without including- within that term, such 
streams as Golly Brook the statute would be nugatory, 
and that it is necessary to include such streams as Golly 
Brook under the term “public inland waters” for the pur- 
pose of carrying into effect the Forest, Fish and Game 
law. I do not think that such contention is well founded. 
If such were the case, then the State might stock any 
stream within the State of New York with trout fry, and 
that act would make that stream public water as far as the 
provisions of that act are concerned, because there is 
nothing in the section which provides for any consent by 
the owner of the private waters. 
The contention of the respondent that the provision of 
• the. law would be null and void and ineffective if such a 
construction were not put upon section 156, is not well 
founded, because there are many streams within the State * 
which come under the head of public inland waters,- either 
by reason of their natural capacity or by statute. 
The rule of statutory construction of penal statutes is 
well set forth by Justice Greene in People v. Hall, 8 
App. Div. IS, as follows : 
“The purpose of this statute is to make it a criminal 
offense, and therefore an offense against the people at 
large, for one to enter upon the lands of another, who 
has complied with the conditions prescribed, for the pur- 
pose of shooting wild birds or animals, or of fishing in 
the pond, lake or streams thereon. Evidently, the provi- 
sions referred to are of a highly penal character, and by 
all canons of construction, they must be strictly con- 
strued, and not be extended by implication.” 
My attention has not been called to a single case which 
so construes a penal statute so as to make an act which 
is innocent at common law a crime, unless the language 
of the statute justified such construction. 
It is further contended on the part of the respondent 
that the fact that John Golly at some time prior to 1888 
permitted some one who was acting for the State to put 
fry in Golly Brook on his premises made it “public 
waters” by virtue of the Forest, Fish and Game laws. 
Section 212 of the Forest, Fish and Game law, which is 
a part of the Private Park article thereof, at that time 
did not contain the proviso^ which it now contains, and 
which reads as follows : 
“Provided, however, that all waters heretofore- stocked 
by the State, 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 public to fish therein the same as 
though the private park law had never existed. But 
nothing herein contained shall be construed as affecting 
any rights now existing of persons owning lands or hold- 
ing leases of private grounds, waters or parks prior to 
the passage of this act.” 
That proviso was added by chapter 319 of the laws of 
1896. Prior to this amendment there was nothing in the 
Forest, Fish and Game laws, nor in any other - statute 
which provided that waters stocked by the State would 
be created public waters, and at the time that John Golly 
permitted this trout fry to be put into Golly Bro-ok the 
common law was in effect. 
Section 156 of the Forest, Fish and Game law has been 
three times under legislative consideration, and if the 
Legislature intended that “public inland waters” should 
mean all inland waters it had ample opportunity to ex- 
press itself in the statute. Having deliberately failed to 
express itself, I do not think that it is the duty of a court 
in a criminal action to place that meaning upon it. 
In the case of Rockefeller v. Lamora, 85 App. Div., 262, 
which was an action under the “private park” article of 
the Forest, Fish and Game law, the court says: 
“The Legislature could not authorize the State 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 taking private property for public use without just 
compensation. * * *. owner of a stream could 
doubtless dedicate it to public use, as he could his lands 
for a public highway, but this imports consent on his part 
and a bargain entered into between him and the public 
authorities. * * * interpretation of the statute is 
that the stocking of streams and waters, the beds and 
adjacent lands of which are owned by an individual or 
corporation, in order to give the right to the public to 
fish therein, must be with the consent of, the owner or of 
one having a right of fishery therein, and that only the 
particular stream, lake or pond thus stocked is so made 
publicly, and that such stocked does not open to- the pub- 
lic streams to which they may be tributary, and that this 
stocking of such a stream by the State and the 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 migrations of 
the fish and take them in that part of the stream on pri- 
vate lands without the owner’s consent.” 
That opinion was by Justice Houghton. 
In the same case, 96 App. Div., 91, Justice Chase reiter- 
ates the same language. It will be seen from, -that lan- 
guage that in order to dedicate this stream to public use 
by John Golly, there must be the same formality as in 
dedicating lands for public highways. Two things are 
necessary^ for the dedication of private property to public 
use. 
First — The intention or acts, which amount to the same 
thing, of the true owner to give the use of his real estate 
to the public. 
Second — Acceptance of such gift by the puDlic. 
At the time the fish fry were put in Golly Brook, which 
is claimed to create a dedication in this case, there was 
no law which implied that the putting in of such fry, sup- 
plied at the expense of the State, would convert the 
stream to public use. 
The section of the Private Park act, as above stated, 
was not then a law, and the dedication must have been a 
common law one. There is no evidence in this case suffi- 
cient to show an intention on the part of John Golly to 
open up the stream over his lands to public use, and there 
is no evidence that the public accepted it, or that it was 
ever used by the public under such act. The following is 
the testimony on the subject: 
“I am familiar with Golly Brook. I knew John Golly 
in his lifetime. He was my uncle. I know where he 
lived and where his farm was. Golly Brook runs through 
it. I went there to his farm several times. I went there 
at some time and took fish there. I can’t remember when 
it was, but it was some time between 1883 and 1888. They 
were trout — some rainbow and brown fingerlings. I got 
them from the State. I had some talk with John Golly. 
I bade good morning and I said that I had some fish. He 
came and peeked into the can, and said it was a shame 
they could not get to- some size before they caught them 
out. We took them down to the brook and put them in. 
It was Golly Brook. He was there when I put them in.” 
There is no other evidence of dedication or consent. 
Fish were put in Golly Brook several times after, but 
there is no evidence of any knowledge or consent on the 
part of the then owners. 
In order to- sustain a criminal prosecution I think the 
evidence on this point should be clear and specific. To 
hold that such an act, as testified to, was a dedication of 
private property for public use, upon the evidence in this 
case, would be to jeopardize title to private property. 
Further, a dedication must be by the true owner. John 
Golly, at the time of the claimed consent, held the title 
to the land in question, but it was subject to mortgage 
which had been given by him, and which was afterward 
foreclosed, cutting off all such rights in the premises as 
he might have had. 
I think the term “public inland waters,” as used in sec- 
tion 156, is not broad enough to include streams like 
Golly Brook, and that the evidence in this case does not 
show the commission of the offense charged in that sec- 
tion by this defendant. 
The j udgment of conviction is, therefore, reversed. 
Do Fishes Shed Their Scales? 
This question is asked by Dr. Marett Tims in the 
course of a paper on the development of fish-scales, pub- 
lished in the latest issue of the Quarterly Journal of 
Microscopical Science. The author leads up to this ques- 
tion by referring to the theory that the age of fishes can 
be determined by counting the number of lines of growth 
•in their scales. This theory he is disinclined to support, 
one of his reasons being that scales first develop at dif- 
ferent periods in different parts of a fish’s body, so- that 
if any comparison be made of their lines of growth the 
scales should be taken from the same region. This, 
however, is a minor objection, and of but little import- 
ance in comparison to the question as to- whether the 
scales are periodically shed and renewed. The author 
states that experienced fishermen on the east coast of 
Scotland are fully convinced that such “moulting” does 
take place, more especially among fishes that have re- 
cently spawned. It is said to be specially noticeable in 
the herring ; and the author remarks that, in view of 
the ease with which the scales of that fish become de- 
tached, such a replacement would, prima facie, seem to 
be highly probable. Even if such shedding and replace- 
ment does take place, it might be urged that it need not 
necessarily iiivalidate the value of the rings of growth 
as an age test, as the scales might be reproduced with 
the same number of growth lines as those they replaced. 
This Dr. Tims is disposed to regard as an improbable 
supposition; but it may be pointed out that, so far as 
we are aware, the scales on any region of an individual 
fish’s body always have the same number of rings, thus 
suggesting that if they are shed they are renewed in the 
exact likeness of their predecessors. Information from 
anglers vdio may be able to throw any definite light on 
this subject from direct personal observation would be 
of interest. — London Field. 
Ate Fishes Deaf? 
Traveling through South Malabar I reached the 
village of Kundotti, which is one of the centers of the 
Moplah community in that district. Close to the 
Moplah mosque there is a tank used for bathing and 
washing. The public road adjoins the tank, which has 
a parapet wall on all its four sides, and rough stone 
steps lead down on all sides to the water, some ten feet 
or twelve feet below the level of the ground. When 
some Moplahs asked me if I would like to see the 
fish in the tank I went and looked over the parapet wall, 
but nothing was to be seen except the water. Then 
some of the Moplahs clapped their hands, and almost 
immediately afterward a number of large murrel rose to 
the surface. A fowl was thereupon thrown into the tank, 
and was torn to pieces by the fish. In this case vibra- 
tions may have been communicated to the water by the 
feet approaching it, but, if so, similar vibrations must 
have been communicated all day and every day by the 
feet of persons using, or passing by, the tank. Even if 
vibrations were communicated, there was certainly no 
sign of the fish until they were invited by the clapping 
of hands to their gruesome dinner, and the fowl was 
not thrown into the tank until after the fish appeared. 
It seems impossible that the clapping of hands com- 
municated any vibrations to the water, or, if it did, that 
vibrations would have differed from other vibrations so 
as to be interpreted by the fish as a signal. If, then, 
fishes are deaf, how came these murrel to understand 
the invitation given them? — Wontiga in London Field. 
Chicago Fly-Casting Club. 
The first reunion and banquet of the Club was held on 
Monday evening of this week at the Sherman House. 
All communications for Forest and Stream must be 
directed to Forest and Stream Pub. Co., New York, tq 
receive attention. We have no other office. 
