Lexington weekly intelligencer. (Lexington, Mo.) 1871-1887, 1881-07-16


ran proprietors, incident to and depend
ent on the public right. have been sub
ject to the regulation of the legislatures;
and the mode adopted by the legisla-
ture, whether by the private or public
acts, to secure and preserve such right,
has been by requiring, in the erection
of dams, such sluices and fish ways as
would enable these migratory fish. ac-
cording to their known habits and in
stincts, to pass from the lower to the
higher level OF the water, occasioned by
such DAM"
In the same case, the court, on page
2l9 OF the opinion says: Cali provis-
ilnS of statutes, made tor regulating the
fisheries, are intended for the public
benefit. and all persons, at their peril.
must take notice OF them; they are,
therefore, public statutes, and the courts
OF law will, &c ogicio, take notice OF
them.''
The supreme court OF the United
States, in the case OF Holyoke Company
vs.. Lyman 15 Wallace. page 506),
say: ''Rivers, though not navigabIe
tor boats or RATS, and even smaller
streams OF water, may be and often are
regarded as public rights, subject to
legislative control, rs the means ton
creating power for operating mills and
machinery, or as the source for furnish
ing a valuable supply of fish suitable tor
food aud sustenance. Such water power
is everywhere regarded as public
right, and fisheries OF the kind, even in
waters not navigable, are also so far
public rights that the legislature OF
the state may ordain and establish regu-
| lations TO prevent distractions to the
passage oil fish, and to promote the usual
and uninterrupted enjoyment of the
right by riparian owners. The court
| notice, in the subsequent part of the
opinion, the case of the Commonwealth
VS.. the Essex Company Q3thGray) and
| especially that part OF it we have copied,
| and expressly sanction and approve it.
From the earliest period OF the history
of Missouri down to and including the
last session of our general assembly, the
legislature has assumed and exercised
the right Of controlling the erection Of
all dams. for. all purposes, across the
water courses .ot the state. Under the
act approved the Sd of December, 1922,
(See revision of 1925, page 5SS, it was
expressly provided that before any mill
dam was erected, inquiry should be
made as to the extent the erection Oi
such dam would .obstruct the passage ol
| fish. And in every revision OF our laws
since 1925, it has been made the duty OF
all tribunals having Jurisdiction ovol
the condemnation OF .mill-sites and the
| authority to authorize the erection OI
dams. to inquire to what extent sucl
dams, when erected, would obstruct the
| NJ oh tn, dat
what way the obstruction could be rene
died. In other words, the full contro
over the erection OF dams, and the righ
to prevent the obstruction OF
free passage of fish, has beer
uniformly asserted. Hence we SAY
that not q dam for any purpose has ever
been built across q water-course in
Missouri without tull knowledge, or
the part OF the builder of such dam, thai
he was bound to obey all Legislative
requirements concerning the free pas
sage OF fish over such dams.
| The laws upon the subject, we are
aware, have to a great extent remalnec
a dead letter upon our statutes. The
consequence is, that in most OF thu
streams in the state, dams have beer
erected that have effectually cut off the
supply of fish to the inhabitants residing
upon them. The act we have COPIED
herein is more stringent and specific
than any other before enacted upon ths
subject. Now, every owner or main.
tainer of a mill or other dam is fully
informed as to his obligation and duty
BY reading the act he viii at once see
what he has to do. We wish to call at
tention to this law, and say to all who
are interested, that unless steps are
taken Immediately to comply with the
law, it will be enforced to the letter. and
proceedings will be instituted against
every owner and maintainer OF dams
that are not provided with such pass.
ways for fish as are required by the aci
approved the sllth of M,rch, 1881. ii.
The third. fourth, eighth, tenth and
twelfth sections OF the act approved May
3d. 1879, read as follows:
I SEC. 3. That any person placing or
using, in any OF the waters OF the state,
any medicated, drug, any coculus indicus
or fish berry, or any other poisonous
thing or substance calculated to poison,
kill or injure any fish, or who shall by
any such means catch or take any fish
| that may be in said waters, or who shall
place any nitro glycerine or other ex-
plosive thing or preparation in any OF
the waters OF the state, whereby any
fish that may be in said waters may be
killed, injured or destroyed, or who
shall by such means catch or take any
fish from SAID waters, shall be deemed
! guilty OF a misdemeanor, and on con.
viction shall be fined not less than fifty
nor more than two hundred dollars for
each olfense, and on failure TO pay such
line and the costs OF prosecution, shall
be confined in the jail of the county tor
| length OF time not exceeding one day
for every dollar of such fine and costs.n
SEC. 4. No person shall be allowed
to place, erect, or cause TO be placed
erected or maintained, in any of the
waters OF the state, or in front of the
mouth OF any stream, slough or bayou,
any seine, net, gill net, trammel net, set
net. bag, weir, bush drag. any fish trap
or dam, or any other device or obstruc.
tlon, or by any such means to take or
catch any fish IN any of the waters of
the state: Provided, that The prohibi-
tlons OF this section shall not apply to
waters wholly on the premises belong
ing to such person or persons using
such device or devices; prorided
.Jurther, that 1t may be lawful to use u
very small seine, not to exceed in length
fifteen feet for catching very small fish,
usually called minnows, which may
be thus caught to be used for bait or for
stocking other waters with fish. but for
no other purposes and proci,lcd jurih-
or, that the Fish Commissioners may
use any necessary devices Tor the pur-
pose of removing fish from ponds, pools
or other waters, when, in their judg-
ment, the safety of the fish or the objects
OF this act will be promoted by such re-
moval. Any person who shall violate
any OF the provisions of this section
shall. on conviction, be deemed guilty
OF Il misdemeanor, and shall Ee fined in
a sum not less than twenty nor more
Than one hundred dollars, and on failure
10 pay such fine and costs of prosecution,
shall be confined in the county i.il for
time not exceeding one day for each
dollar OF such fine and COSTS
SEC. s. Every person who shall
knowingly and wilfully sell or give,
buy or accept, any fish taken or caught
III Viu!ation OF this act shall be deemed
guilty OF a nlsdemeanor, and upon con-
VictIon thereof shall be fined in q sum
not 10 exceed one dollar for each and
every hsh. so sold OF given, bought or
accepted"