The Rutland weekly globe. [volume] (Rutland, Vt.) 1873-1877, 1874-03-13

! lie right Jonh not be enforced by the
courts, unldssit. in effect, were an exercise
of eminenildmain, and carried with it the |
compensate required.
From UIc foregoing considerations it |
would appia- that before those public in
tercsts 10 Which the fish commissions are |
subseryicni can be understandingly minis |
to, it will 4 Unnecessary for our legislature,
in its wisdom, to take such measures as are |
necessary h determine and fix, where not |
determinate, the exact limits of public
propricyN4Sp in lakes and ponds. For the
Legislative regulations required arc
not precisely the same in the one
case as in the other, and the commissioners
may well hesitate in their expenditure of
the annual appropriations, lest they, per-
chance, may find themselves doing that for
individual interest proper only for that
which is public
Our courts hold that the title to lands on
the borders Of Lake Champlain passes or
extends only to low water mark and that
like rule holds as to the lands bordering
on those streams which empty into that
lake, as far up them as they rise or fall
with the lake FLETCHER VS. Phelps, 2Sth
Vt. 251 So, too, it is held that "when
land is conveyed, bordering upon luke or
p0nd, if it is a natural pond, the grant OK
tends only TO the waters edge but if it is
an a1tiRfb pond, like mill pond caused
by the flowing back of river, the grant
extends b the middle of the stream, in its
natural state" (Angell on water courses,
j = Il Iz.s.e perceived that under this hold
I ing thoiS must he some limitation in the
application of the doctrine. While the
rule may be eminently wise and just as to
large boGcs of water, which for years have
been PLACES of common resort of the pub
lie for li,hng, yet there are other natural
ponds so small as hardly to demand this
rule or aimit of it. A limit has been essay
ed in decision of the supreme court of
New Tx. where it was held ''that a lake
measuring less than mile in width and
five miles in length, and having no navig-
able outlet, would pass under grant of a
large tract of land which included it in its
boundaries" (See Angel 40
What rule our courts would adopt in the
application Of this law has not been, as far
as know, determined by judicial process.
But the reasonable rule would seem to be,
that those lakes or ponds which had been
places of general resort, ponds or lakes
Yielding to the fishing considerable quaint
ties of fish, quantities sufficiently large tC
add materially to the food of the people
living in the ncighborhood, should he re-
garded as public waters; and that, in them
there was and could he no ownership of the
land beneath the water below low water
mark To regard small ponds of but few
acres In extent, situated in the enclosures
of frcehoders farm, yielding no consid
cradle amount of fishing, and adding moth
ing material in the way of food supply tC
the ncighboring inhabitants, as public pro
perry, is not called for by any considers
tions OF public policy.
There is another fact to which the atten
tion-ot the reader is desired That is tho
fact that the fisheries in private and public
waters cannot he sundered. They are in
tcrdcpendent. The pike-perch in Lake
Champlain would soon become extent i
they could not ascend into certain private
streams to deposit their spawn, and my
privilege of catching them would soon b
abolished if the young fry Matched in my
brooks could not 90 down into the lake t.
find their food and growth. My brook
furnish the nest and Matching place. TIN
public waters furnish food and range 70
growth, and while it is not true that al
kinds of fish nest in waters different from
those they feed in it is true that the well do
ing of even these kinds acknowledges some
thing of this same interdependence. Tn
salmon is not possible to the fishers af tn
sea but by the gravel beds of the mountai
rEers. Conversely it is not possible in tn
= 2etal pools of the upland rivers but fo
, the fDod-yicld in the deep abysses of til
sea. Abolish the spawning bed or acces
, to it and you ere long abolish the race.
So that when we come to consider tn
means required for the preservation an
i increase of our public fisheries we find tina
! in private streams, some of the great con
.1ss 4
investigate the economy of private fisherie
We find something of their value rests upo
the management of the public fisheries, an
that as a necessary consequence access
freedom of passage from one class o
waters to another is indispensable.
. This leads to the matter of obstruction
placed in streams.
The Supreme Court of the United State
= says, in the case of the IIolyoke Water
power Company VS. Lyman and others
persons owning the whole of the so
constituting the bed and banks of tn
= stream are entitled to the whole use an
. profits of the water opposite their land
? whether the water is used as a power {
a operate mills and machinery or as fishery
, subject to the implied condition that the
shall so use their own right as not to in
- jure the concomitant right of another +
= parian owner, and to such regulations q
!. the regulations as the Legislature of tn
!, State shall prescribe" An
!, again: Ownership of the banks and be
of stream, as before remarked, gives
the proprietor the exclusive right of fist
!, cry opposite his land, as well as the rigl
y to use the water to create power to operat
!. mills but neither the one nor the othe
i, right, nor both combined, confer any rigl
,I,,N,, tl,n t.
= vent the free passage of fish up and dow
the river at their accustomed seasons, @
such distractions would impair and ult
a mately destroy all such rights owned b
n other proprietors both above and below TIL
a obstruction on the stream"
y The whole of these dcta of the cour'
G of last resort are founded upon that priI
q ciple, which, in the service of equity, d.
n clares that men are authorized to exercis
only that reasonable use of their own right
q which does not interfere with the rights {
a others. While every one has right
s travel on a highway, no one man can II
i gally use his right of travel or transport S
n rs unreasonably to interfere with mini
N He may inconvenience me for the time
r may have to yield more than half I'll
i Travelled path but his use must be or
c compatible with the public Use. He ma
s play upon atrombone or a bass drum
S his own house to his hearts content, bl
y he mustn't keep his neighbors awake b
1t the din of it.
h Nor can he who by building dam. ther
5 by obstructs the passage of fish from the
it feeding to their spawning grounds-fC
it this is the essence of the migration {
ii iishcs-get flee from the penalties of Il
'e act by continuance of the wrong-doinl
ID In every such case of building the a.
a is done in the face of that maxim of Il
g common law, sic utere tuO ut alienum IA
he LgdaS-so to use your own as not to hu
s. another-which has in law all the force
a statute with a tantamount declaration
Dr and therefore it is that in those States
~ which, since their birth. no special statute
n on the matter have been enacted, :" all pc
ut sons" in the language of the Supren
in Court of Massachusetts,, "who may build
~ 1ap, e., ,,,;n ,,,pnocau N a qtrnan1 animal