The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1881-04-14
Construction OF Fishwavs.

AS mentioned last week, we have heard 1t
stated that some of the mill owners in Au-
gusta intended to test the constitutionality of
the legislative act compelling the erection of
fishways. The following communication fully
discusses the subject, and from it it would
seem that the Legislatures action in the
premises is supported by the decisions of the
highest courts.
Mr. Shaw whose name is signed below, is
the Fish Commissioner of Iowa. The mill
owner referred to, refused to obey the law
requiring him to put a fishway on bis dam,
and the law was enforced against him:
THE LAW ON INSTRUCTIONS IN STREAMS
Mr.. Shaw: ''This writer who, judging from his
argument is mill owner, states the whole case for
the opponents Of ishways and gives in full what he
thinks to be the grievances to which dam owners
are subjected by the 1shway law, and being good
argument from his point OF view, 1t deserves
full and candid consideration from the public.
He says hrst II am citizen Of the Unitsd States
and DESTROYS Of showing willing obedience to the
laws thereof derived my title from Unitedstates
Government, clear Of any and all encumbrance,
without any reservation Of erecting or upholdine
nshways for the benefit Of other parties" and claims
protection from any law that will hamper, endanger
or depreciate the value Of his property, without
payment in full for all damages sustained.
To this argument made the following reply
The writer overlooks the fact that he is but OF
the several hundred that have obtained titles ex-
actly alike from the General Government to the
banks of the Wapsipinicon river, and that by max
ing the river impossible for fish he had been depre
chatting the value of their property, thereby doing
individually to all those parties Just what he
v,yofv =, lee oho,,IH 49, tnSv.
We hold these principles to be well settled by
usages and decisions 30 many that we find 1t i'm
possible in short article to quote but few Of
them;
l. In any grant from the public to Individuals an
privilege which is not expressly granted is with
held.
Q. river lisa public way.
8. The right to the water and fish in stream is
Joint one to all the owners, and must be used by
each as not to unreasonably interfere with the
rights of others.
4. The passage Of nsh in river is public right.
s. The Legislature has the right to make such
laws as will protect the public from injury by an
improper use Of any Of these public rights
To partially provo the correctness Of these po-
sitions we will submit q few decisions.
''Every owner OF q dam holds 1t on condition or
Limitation that a sufficient and reasonable passage
way shall be allowed for nsh. This limitation be-
ing for the benet of the public is not extngushed
by any inattention or neglect in compelling the
owners to comply with it," (Stoughton Vs. Baker,
Mass, $3.50
In that case there Was neglect to build nshway
from 1884 to 1885, but 1t was held that the duty
continued.
The preservation Of fisheries is for the benefit Of
the public. The right to have the fish pass up
river is public right. The right to catch the fish
ia I'M ~ III how
the fish there, so they can be caught, is public
right" Commonwealth vs.. Essex Co., 10 Gray, 247)
'The grant Of privileges and exemptions to a
poration is strictly construed against the corpora
ton, and in favor Of the public. Nothing but
what Is granted in clear and explicit terms"
(ohio Life ms Go. vs.. Debolt, 16 Howard, 4s59
Ownership OF the banks and bed Of stream
gives the proprietor the exclusive right of nsh
cry opposite his land, as well Is the right to use
the water to create power to operate mills; but
neither the one nor the other, both combi ned,
confer any right to erect distractions in stream
to prevent the free passage of fish up and own the
stream at their accustomed seasons, as such OBJ
structions would impair and ultimately destroy all
such rights owned by other proprtetors both above
| and below the obstruction such stream.
'Such water-power is everywhere regarded as
public right and fisheries, even in waters not nsyi
gable, 80 far public rights that the Legislature
may ordatn and establish regulations to prevent OBJ
structons to the passage Of sh and to promote the
1e1"i on0 upeu on'oy inens VI 'ne rtsns Wy
.poi1on o"nofs' commissioners Vs' noiyoAo
"asef fo"er TO-, supreme court Oh ohiteo states,
December term, 1922
ILLS noisoAe Case ~ sne "ose ho'eo tnat mas ever
oeen IL snia coun'ry' anu was especial-
:. -oo ~ 'Ns ea'A o"Ho.S' GO Hoonss
glance at what was claimed by the defendants will
show.
~ "a' oloiaeo ior aneli, DIS nas peen claiMeu ior
~. oolAo'pon0o1 .ne' 'ney nao koou 'i'ie from
..e auveanmens an. 30 was en',eiea 70 use 'her
49, =. % sAe. 90" ~
- 80 o-'oN '.e' '.Ao' LOU a'ou sno ""'o. pow
-. -, % =, - = rs poA ~ y. VINO,
,,-,.o., 80 0-oN 'Ao AAsA' W 100 ~ ~ s'a'1'e u
r. Zoe o,.,,,.s -, ooo ooo
In inn nroy1no their no.ar and az :, os a.,,s, ~,
n, noi,cv 70 o,,,,o, .,,a,, ~ 80 E, 49, ~
that tbav hoa ,a,d owna-s =, na,,,o - us,.-,..
rights above their dom soo mo ,or thosa r,c,+. 49,,
that that fart abopld relieva tbam
But mora esnac,a,lv n waa c1atmad thot thov h..
a special cbartar nern,tt,np them 10 h,,,d s,cb a
dam as thew had hui II from tho sta,a IaosIotura
We have not time nor snaca To on over tb,a cosa
but will stmnv saw that all that was c,aiad ,ortba
defence was proved or mttted that # was arened
by eminent counsel. both before the supreme Court
of Massachusetts and the Supreme Court Of the Uni
ted States that on August 81 1872 the Court
of Massachusetts entered a decree against the d.
fendanta comnelltnp Them to mt In a Asbwav. that
upon appea, to the surname Court Of the rn,tad
States the decree was afsrmed Mt the Dacarohar
term 1879 and that the ownsrs wsra comnai1ed Il,
put In q f1shway We could cite DOZENS Of decision.
bearing upon the ouest,on and In al, Of orr reano
know of no one decision that has not horne in the
same direction So we consider the question v,rtu.
ally settled SO far as the courts are concerned
The Judiciary Committee of the House and aenate
of the Seventeenth General Assembly Of Iowa conn
posed of the best OF legal talent 80 and
reported. after a full Investigation when this law
was before them for their action.
Outside of this question OF law. there ia one Of
right or @1ustce" Originally all the purcbasers Of
property along a stream nav the same nrice for
their lands Fisb wore abundant along the streams
and are the propertv of the Joint ownars Ono man
builds dam thar efrectnallv stona the nassape Of
hsh. Int "a thew are n,entv no one obtec,a The
mflpower brinos wealth tn thu owner unti, he
hoasts Of ,ts valna The dam brinpa harrennasa Of
fish to the stream INIT, the mtll-owner scorntne
the little that ia left savs sI would give constdera
BILE money II there were not a fish in our river"
Now those who have suffsred thase losses aak
tbosa who have assumed tn own all tbara was of
value along the river. and in 40 doing nearly de-
stroved their peiobbors riobts tn so usa tho nrtv