Orleans County monitor. [volume] (Barton, Vt.) 1872-1953, 1897-07-12
OUR FISH La US.

| The decision handed down by Judge
Thompson at the recent trial of T. A
Eaton of Barre in the Orange County
Court, for fishing in brook posted by the
state, has caused considerabl interest. Mr.
Eaton was indicted under section 1868 OF
the Vermont statutes, which provides for
fine of $50 for fishing in waters stocked
by the state. After the evidence was all
in the respondents counsel asked to have
the court direct a verdict in his favor Al
ter listening to argument from counsel
Judge Thompson delivered very able
opinion which we give in full below:
''The State of Vermont, in it's wisdom.
| has deemed that it would be for the best
| interests of the State to encourage the
propagation Of fish in its waters, thereby
increasing, if they succeed, a food supply
and also furnishing an element of recrea-
t1On for the people; and in the abstract.
no one can say but that the purpose is a
| good one and it is not for US to sit in iudg-
ment upon the wisdom or the unwisdom
OF the particular method which the Legis-
| lature has taken to carry out this purpose,
| provided it is within the scope of legisIa-
tive power as limited by the constitution
The Legislature has codifed, as it were,
the law upon the subject of fish and game
The first section Of chapter 189 describes
what certain words or phrases shall mean
| when used in that chapter. Among these
phrases is that of ''private preserve" which
| 1t says shall mean natural pond of not
| more than 20 acres belonging to a common
owner. or any artificial pond made for the
| purpose OF fish culture. Under that defin-
ition, wherever the phrases s'private pre-
serve" is used in that chapter it means
either an artificial pond made solely for
| the purpose of fish culture or a natural
pond of not more than 20 acres. It does
not include any other waters, great or
| small. This section also enacts that the
phrase ''posted waters'' shall mean all wa
ters on land posted as provided in this
chapter. There are only three cases men
toned in which waters may be posted
namely by the fish and game commission
ers when they have stocked the waters,
and by person engaged in the culture of
fish in private preserves, and the posting
of enclosed land or cultivated land not en-
closed, as provided by section 1925. So
that posted lands, as defined in the first
section, must mean one of these three
classes either posted by commissioners
because stocked by them under the law or
a private preserve, that is, an artificial
pond of a natural one of not more than 20
acres, or enclosed or not enclosed lands
posted by the owners as provided by sec
t1On 1926. The first section of the chapter
says that 'spublic waters'' shall be defined
to mean all waters over which the State
has jurisdiction except private preserves as
posted waters.
By section 1865 it is enacted that the
commissioners, at the expense of the State,
may introduce trout, shad, salmon and
other good varieties of fish into such
streams, lakes and ponds within the State.
not private preserves or posted waters, as
they deem suited to the successful cuItiva-
tion of fish. By the strict terms of that
section the Legislature attempts to confer
upon the fish commissioners the right to
introduce fish into all public waters and
into all private waters that are not either
private preserves or private waters that
have not been posted in the manner per-
0H hyvca caati
1t IN effect says that, if a private person
owns waters that are not within the mean
ing OF private preserves, namely an artifi-
c1aI pond or pond not exceeding 20 acres. |
unless he has posted them, as he permitted |
to do by section 1926, the commissioners |
IN their discretion, may plant fish in such |
waters, Notwithstanding they are private |
waters, whether private preserves or post |
ed, then it would only leave public |
waters as the waters in which they could |
place such fish, and what it says about wa
tefS not private preserves or posted waters |
would be SuperfOus.
Section 5567 provides that waters stock
ed by the fish and game commissioners
shall be treated as public waters. The Ie-
gal effect OF that provision is, if it is bind
ing, that, whenever man owning private
streams, fails to post them, SO that by the
terms OF the preceding section to which T
nave referred, the fish and game commits
s1oners are permitted to deposit fish there
IN, those waters become public waters and,
II public waters, when not closed by the
order OF fish and game commissioners ev-
cry citizen in the State, at all suitable
times, has right to fish therein. It goes
further and says, evidently referring to
waters that are so supplied with fish that
nave not been posted, that any person who
might otherwise make the same private
preserve or posted waters may do so at the
expiration OF i've years from the date of
Hing with the fish and game commission
ers written notice of his intention so to
hon II -I~14
shall give by way of description, etc: SO
that the further legal effect of that section
IS, that, even though a man does not con-
sent, by reason of his failure to post his
waters and the fish and game commission
7rs having taken advantage of such failure
md place fish within them, he is deprived
of the right given to him by virtue of
ownership for five years. For five years
hey are public waters and he cannot re-
cover his former right and estate until he
1as given such notice and five years have
elapsed from the date of giving it. And
hen we come to the section on which this
orosecutlon IS based. 1t provides that
when the fish and game commissioners
olace tsh IN pond or stream, under the
provisions of this chapter, they may pro-
libit fishing therein, or any specified por-
ions thereof for period not exceeding
hree years by posting notices, etc. This
prohibition includes the owner as well as
thers. This is the law upon which the
'tate must stand if it secures a conviction
n the evidence.
What does the evidence tend to show.
living it the most favorable view for the
tate that IS deducible from it's legal ten
ency? 1t tends to show that IN May,
S96, the fish and game commissioners fur
ished fry Suppose by that meaning
oung fish of some kind to the fish war
ems of Randolph, and perhaps Braintree.
With the understanding that those fish
7ere to be placed in Thayer brook and
urnlshed certain notices. The fry were
laced in this brook and thereupon notices
7ere posted IN conspicuous places along
IS banks at intervals of from half a mile
0 mile that notified the public that
hoSe waters We're stocked bu + tho Cto+o oD1