Herald and news. [volume] (West Randolph, Vt.) 1878-1943, 1897-07-08

hosting of the brook and substantially
the notice that was posted upon the banks
thereof. This prosecution was com,
menced within six months OF the alleged
offence.
On these conceded facts, under the laws
Of this state, has the respondent commit
ted any offense by reason of having fished
/ in this stream because it was legally
closed oy the fish and game commission
ers? IL it was not legally closed by them
be has not committed the offense charged
| in the indictment. That is the pith OF the
case.
At common law, navigable waters are
all waters below that point to which the
tide ordinarily rises. All waters be-
| low that point, including rivers and other
streams, being tidal waters, were naviga-
| BILE waters, and in them the Kings sub
! jects had a right to fish without let or
hindrance from anyone. Above the point
at which all streams were navigable at
common law, they were not navigable
streams within the meaning OF the common
law, although by usage from time i'm
memorial for that purpose, they might
| have become the Kings highway, over
which his subjects had right to trans
port themselves and their goods in boats.
But, above the point at which the waters
ceased to be navigable, even though they
were boatable, the owners of the land
through which such streams flowed owned
the right of fishing therein. They did
not own the fish in the stream, but they
owned the right to catch them il they
could, and no one else had right to fish
in those waters. IL they did, they vio-
lated private right, because the right OF
fishery was an appurtenance OF the es-
tate. So far as the right OF private own
ershIp is concerned in this state, il is the
same as at common law save as modified
by the constitution.
Way back before this century when the
founders of this republic took occasion TO
speak their minds in regard to this matter
in the organic law OF our commonwealth,
they said that at all suitable seasons OF
the year, under such regulations as the
legislature in its wisdom might enact,
the citizens OF this state should have a
right at all seasonabie times to fish in all
boatable waters within this state and in
all other waters not private property.
This question as to what are boatable
waters, as has been suggested, has been
recently before the court and they have
held that 1t means what have previously
stated is meant by "toatable waters" BY
that same decision, the court expressly
held that thelstate of Vermont had no
jurisdiction over any waters, in respect to
fishing therein, save those over which il
retained Jurisdiction by virtue OF this con-
stitutional reservation. There is no ques.
tion but that by virtue OF that reservation
the legislature has the fullest power TO
regulate the times and the manner OF TAX
ing fish from the public waters OF this
state. Ii may provide for their propsga-
ton; II may provide for their destruction
or make any other regulation that in its
wisdom it deems best for the furtherance
Of that right, provided they do not en-
tirely destroy the right reserved to the
citizen by that constitutional privilege
They cannot so surround the right TO
fish in the public waters as to deprive a
citizen entirely OF that right. Over pri-
9ate property, whether II relates to
streams or fiocks and herds, the state has
no power so far as taking such property
and comforting ii upon the public, unless
1t does it for public use, after compen-
sation is made To the individual for his
so taken, Every man who has a
title de ed to his property in this state. by /
virtue OF that title holds his realty with 4
all the appurtenances and privileges /
thereto belonging, and he thus holds by /
virtue OF contract, and as a part OF that 4
by the common law, as an Incl.
dent of his property, theright OF fishery 4
In the waters therein, unless the waters |
in which he attempts To exercise that
right are public waters because boatable
waters. The constitution OF the United |
states prohioils the states from passing
any law lmpalIing the obligation OF con-
tracts, and when the legislature att, mpts
10 take as brook that flows through mis-
pasture or his meadow by the hand of a
and TO give thst to the CUB.
lie for five wears by simply planting
trout, shad, salmon or other useful fish
herein, and by virtue OF that making il
public waters to which all the people OF
his state have right, they are impair.
ng the contract under which he holds
bis property, and they are also taking
private property for public use without
There isn't any question
IN the subject. Ii is not a debatable
question. That is what this fish law does.
Take this very property, all private prop
'rty, small stream flowing through
hese meadows; without any grant from
he owners, the state, by the act OF these
attempts to take it by
imply putting fish in IL, and il the law
las any efficacy whatever, the fact that
he owners had not themselves posted the =
waters under section 4,626, has deprived
hem OF their property for at least five
ears, because the commissioners have put
ish therein. Such is net the law. We
ould not live under any such law.
We think that this statute, making no
PROVISIONS for compensation TO these own
RS when this property is attempted to be
eiZed and posted and made public prop
rty, Is clearly beyond the power of the
legislature to enact, and we think that
his prosecution for that reason must fail
We hold that on the case made the re-
pendent is entitled to have a verdict di-
ected and we 50 direct