14 
formity to the act would cost about $600; that plaintiffin error has owned and used’ the 
milis and dam since in 1871, and maintained the dam at its present height since that time; 
that he has succeeded to and is possessed of all the rights with which Michael C. Parker 
was invested. These are the material facts of the case. 
Plaintiff in error insists that he has a prescriptive right to maintain his dam as now 
constructed, as it has been used in its present condition, by himself and grantors, for — 
more than twenty years; that the law requiring him to construct a fishway connected 
with his dam would be to deprive him of his rights without due process of law,—if in- 
tended for public use, without due compensation, or if for private use, then not only with- 
out compensation but without the semblance of constituticnal warrant. He also contends 
that the act of 1857 was a charter, and as such is or contains a contract, aud this law vio- 
lates its obligation, and is repugnant tothe contract clause of the Federal and State con- 
stitutions, and is therefore void. When the dam was erected it was without right and by 
a trespass on the lands of the government, and before Michael C. Parker purchased the © 
land of the general government, the Legislature had by enactment, in 1840. (Sess. Laws, 
98,) declared Fox river a navigable stream and public highway. . It then follows that he 
purchased subject to the power of the Legislature to control the use of the stream to the 
same extent it had to regulate the use of other streams in the State which were navigable 
in fact. After the passage of that act Parker maintained his dam as an obstruction to a 
navigable river, and in violation of that law, because by the passage of that act it became 
public in its use, and its use was under the control of the Legislature. Hé,in all proba- 
bility, to obtain a license to maintain his dam, procured the passage of the act of 1857, © 
authorizing him to raise the height of the dam or to erect a new one; but did that act 
withdraw or surrender permanently the power of the General Assembly to protect the 
passage of fish in the stream? Thereisnorule of construction more familiar or more 
firmly established, than that all grants of powers must be taken most strongly in favor of 
the State and against the grantee. In such cases nothing passes that is not in the letter 
or by clear and unmistakable implication, and when the State makes a grant, the thing — 
or right is subject to legislative control, precisely as other rights not derived from goy- 
ernment; and, inasmuch as this was a license to maintain a dam in a navigable river,we 
have no right to hold that the legislature intended to repeal the act of 1840. so far asit re- © 
lated to the river above this dam. Such would be the effeet if it should be held that 
Parker, his heirs or assigns, may maintain a complete obstruction at that place. It is 
not a reasonable inference that the General Assembly contemplated such a result. The 
act contains no language that in'terms, or by implication, declares such a purpose. We 
must therefore hold that the license was made subject to legislative control. There is — 
nothing in the act that warrants the conclusion that the General Assembly designed to 
permanently surrender any portion of its power of control over this river for the protec- 
tion of fish. Thatthe legislative branch of government has the power to prevent the 
erection and maintenanée ot obstructions in navigable streams can not be suceessfully 
controverted,and all must know that any obstruction to the passage of fish must necessariy 
obstruct the passage of boats and other water craft. Wetherefore have no hesitationin say' 
ing that the legislature, if it had the power, never intended bv that actto permanently aban: 
don the control for the free passage of fish in this river. Had it intended to repeal or 
amend the act of 1840, itis but reasonable to suppose it would have been done in terms. 
There are some things, and they are the most essential of all to man, that are ineapa- 
ble of individual ownership. Such are air and water. All may and do participate, with- 
out restraint, in their enjoyment. They are the common inheritance of mankind. There 
are Other things to a large extent incapable of individual ownership, and of these are 
game and fish, and they belong to the entire community, collectively; and belonging to 
all equally, for their protection from extinction, and to preserve the common ownership 
in all, they are, and of necessity have ever been, subject to legislative control. If they 
were not, the few would, by their destruction or appropriation, deprive the balance of the 
community of their rights in this common inheritanee. Belonging to all, common justice 
requires their preservation for the use and enjoyment of all, From the wild and wander- 
ing nuture of fish they are not, nor can they be, the subject of ownership in running 
streams, like animals and fowls which have been domesticated. Thenature of fishimpels 
them periodically to pass up and down streams for breeding purposes, and in such 
streams no one, not even the owner of the soil over which the stream runs, owns the fish 
therein, or has the legal right to obstruct their passage up or down, for to do so would 
be to appropriate what belongs to all to his own individual use, which would be contrary 
to.common right, and all having a common and equal ownership, nothing short of legis- 
lative power can regulate and control the enjoyment of this common ownership. ‘his 
must be so from absolute necessity. There is not, nor can there be, any other means of 
protecting each individual in the enjoyment of the rights his joint ownership confers, 
hence the necessity of legislative action to preserve and protect the rights of each and 
all in their common inheritance. Therefore the power of the legislature to act must be 
admitted. 
The common iaw has always recognized the right of the riparian owner to take fish in 
the waters running over his own soil, and appropriate them to his own use; but the fish 
being the common property of the people, such owner has never had the right to obstruet 
their passage from that portion of the river which flows over his land, nor has he the 
right to wantonly destroy the fish passing over it, and thus deprive the community of 
their right to and ownership in the fish,—hence the manner in which, the time when, and 
the amount such riparian owner shall take, for the preservation of the common property, 
is a legislative and governmental function. Government was organized to protect the gen- 
eral and collective rights of the governed as fully as the individual rights of each member 
of the body politic,—and this power, as we shall see, has been exercised as a legislative 
function by the British parliament almostfrom the time of its organization. 
At an early period, before and immediately after our State government was organized, 
the legislature adopted what is now Chapter 28 of the Revised Statutes of 1874, and 
that provision has ever since remained in force in this State. It provides: “The common 
law of England, so far as the same is applicable and of a general nature, and all acts of | 
