16 
deeds that for two centuries before that time the owners of the mill and weir had the right 
to maintain them, as expressed in the deeds; nor did they limit it as to its height, nor the 
materials of which it should be constructed. It is true, in that case the cause of action 
accrued within twenty years, but Lord Ellenborough referred to a case decided in the | 
King’s Bench, where it was held that such obstructions were illegal, and a public 
nuisance, and he so announced the doctrine in the case he was then deciding. We are 
aware that in comparatively recent cases in the courts of that kingdom the doctrine of 
Weld v. Hornby has been disregarded, but we prefer the exposition of the common law in 
that case to the more recent decisions of their courts, and are inclined to follow it as the 
better doctrine. 
In the case of Eubank v. Pence, 5 Litt. (Ky.) 338, which was a condemnation proceeding 
for the erection of a-mill and dam, the court said: “The inquest of the jury, taken under 
the writ of ad quod damnum which issued in this case, not having ascertained whether or 
not fish of passage will in any degree be obstructed, the court erred in ordering the mill 
seat to be condemned, and in giving permission to Pence to erect a mill. The order, 
therefore. must be reversed, with costs, the cause remanded to the court below, and the 
inquest of the jury quashed,” ete. The legislature of Kentucky at an early period adopted 
the common law of England, and all statutes of the British parliament in aid thereof, and 
of a general nature and applicable to the condition of the people, passed prior to the © 
American revolution, with exceptions similar to our statute. But concede this was under | 
a statute of the State, still it shows the preservation of fish was regarded as of such 
public eoncern as to fall within the domain of legislative power. If not under such an 
enactment, it must have been under ancient British statutes. 
In the case of Stoughton v. Baker, 4 Mass. 522, (two years subsequent to the decision of — 
Weld v. Hornby. supra,) Chief Justice Parsons, in delivering the opinion of the court, 
said: “But the right to build a dam for the use of amill was under several implied lim- 
itations. One was, to protect private rights by compelling him to make compensation to 
the owners of land above, for, and damages occasioned by, overflowing their lands. 
Another was, to protect the rights of the public to the fishery, so that the dam must be so 
eonstructed that the fish should not be interrupted in their passage up the river to cast 
their spawn. Therefore, every owner of a water mill or dam holds it on the condition, or 
perhaps under the limitation, that a sufficient and reasonable passageway shall be al- 
lowed for the fish. This limitation, being for the benefit of the public, is not extinguished 
by any inattention or neglect in compelling the owner to comply with it, for no laches ean 
be imputed to the government, and against it no time runs So as to barits rights.” An- 
other objection, he says. was urged, that if the resolution was constitutional, the legis-_ 
lature might authorize strangers to enter without right on the freehold or lawful posses- 
sion of another. ‘to this he answered: |‘‘This objection, supposing strangers enter 
without right, is begging the question, for if the owner of the dam holds it under the lim- 
itation mentioned, that limitation must extend to give a right to the government to enter 
and remove obstructions, which, if not removed, would defeat the limitation.” Yhis case 
was followed by a number of cases, among others the cases of Commonwealth v. Chapin, 
5 Pick. 199, and Vinton v. Welsh, 9 id. 87, which recognize the exclusive right of riparian 
owners to take fish on their own lands, but expressly hold, as against the public they 
have no right to obstruct their passage, and itis expressly held that the right is under 
legislative control. 
In the case of Carson v. Blazer, 2 Binn. 475, it was held that the common law never pre- 
vailed in the State of Pennsylvania, which recognizes the exclusive right of the riparian 
owner to take fish in a stream flowing in front of or bounding his land, and such has been 
the recognized doctrine of that tribunal ever since. It has been followed by subsequent © 
eases in that court. | 
In the case of Hooker v. Cummings, 20 Johns. 90, the doctrine of the common law was) 
fully recognized and applied, and it was said: ‘“The legislature have, confessedly, the 
right of regulating and taking of fish in private rivers, and do every year pass laws for 
that purpose as to rivers not navigable in any sense, and which are unquestionably pri- 
“vate property.” 
The cases here referred to fully establish the doctrine that whatever the private right 
of taking fish in streams flowing over a man’s land, it is under the limitation that its ex- 
ercise may be regulated and controlled, as public necessity may require; and they 
elearly announce the rule that their free passage may be secured by enactment, as it is 
secured by the common law. 
As early as in 1807 the Territorial legislature of Indiana adopted an act for the pur-| 
pose of preserving fish in our waters, this State then being a portion of that Territory. | 
The act provided for the condemnation of mill seats by a writ of ad quod damnum. It. 
required the jury impaneled, to assess damages by reason of constructing the mill dam; 
also, to inquire whether, and to what extent, fish of passage or migration would be ob-) 
structed, and by what means such obstruction could be prevented. Thislaw was inforce— 
when our territorial government was organized. The provision in relation to fish was) 
dropped out when the laws were revised, after the State government was organized, and 
only restored by the act to which this is an amendment. In 1817 the Territorial legisla-\ 
ture passed an act authorizing Ezra Owen to erect a dam in the Kaskaskia River, for the 
purpose of taking fish. It contained a provision that the dam should not obstruct the 
passage of fish or ordinary navigation. (Sess. Laws 1817-18, p. 26.) ‘This act was retained 
in the revision of 1819. (Laws. p. 351.) It is thus seen that in that early period of our his- 
tory the legislative branch of our government claimed and exercised the power of pre- 
serving the fish in our waters. At that time it appears the exercise of the power was) 
regarded as an inherent and unquestioned function of legislation. i 
But if any doubt existed, it is removed by the 22d section of article 4 of our present, 
constitution. It provides that the General Assembly shall not pass local or special laws 
in a number of enumerated cases, and among the cases enumerated is “the protection of | 
game and fish.” This unmistakably recognizes the power as then existing, and unde- 
niably authorizes its exercise. This must end all dispute as to the power. This limita— 
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