Herald and news. [volume] (West Randolph, Vt.) 1878-1943, 1897-07-08
THE FISH LAW UP TO DATE.
Full Text of Judge Thompson's De-
cfsion at Chelsea.

/
cision at Chelsea.
In case OF State Eaton the court, in di-
rectinG verdict for the respondent, said
"The defendant in this case moves the
court to direct a verdict on the GROUND
that, concediDg all the facts to be true
which the evidence of the state tends to
prove,yet in view of the law upon the sub
| ject matter OF the prosecution, the state
has made no case against the respondent
We think that this motion may be made
| whether il involves question of common
law or statute law or the organic Law
which we call the constitution. Either o.
the three is the law of the land, and the
state in order TO be entitled to a convic
ton must make out such case on the
undisputed evidence, when a motion Of
this kind is raised, as shows prima facie
at least, that the respondent is guilty Of
the offense charged under the law. When
we come to a construction of the law, we
are met with greater difficulty.
The state of Vermont in its wisdom has
deemed that it would be for the best inter
ests of the state to encourage the propaga
| ton of fish in its waters, thereby increas-
ing, if they succeed, a food supply and al
so an element of recreation 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 judgment upon the
wisdom or the unwisdom of the particular
method which the legislature has taken
to carry out this purpose, provided it is
within the scope of legislative power as
limited by the constitution.
The legislature has coditied, as it were,
the law upon the subject OF fish and game.
The first section OF chapter 1S9 defines
what certain words or phrases shall mean
" hen used in that chapter. Among these
phrases is that of 'private preserve y
which il says shall mean a natural pond
OF not more than 20 acres belonging to a
common owner, or any artificial pond
made solely for the purpose of fish culture.
Under that definition, wherever the
phrase ''private preserve" is used in that
chapter il means either an artificial pond
made solely for the purpose of fish culture
or a natural pond OF not more than 20
acres. IL does not include any other wa
tiers, great or small. 1t also enacts that
the phrase "posteo waters" shall mean all
waters on land posted as provided in this
chapter. There are only three cases men,
toned in this chapter in which waters
may be posted-viz., by the fish and game
commissioners when they have stocked
waters, and by a person engaged in the
culture of fish in private preserves, and
the posting of enclosed lanu or cultivated
land not enclosed, as provided by section
1926. So that posted lands as defined in
three classes-either posted By commits.
sioners, because stocked by them under
the law, or a private preserve, /. e., an ar
tificial Lond or a natural one of not more
than 20 acres, or enclosed or not enclosed
lands posted by the owners as provided
by 1926. The first section OF the chapter
further says that "public waters shall be
defined to mean all waters over which the
state has Jurisdiction except private pre-
serves and posted waters.
By section 1865 1t Is enacted that the
commissioners, at the expense of the state,
may introduce trout. shHd, 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 cultiya
ton 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 thai are not either
private preserves land that means what |
nave before suggestedl or private waters
that have not been posted in the manner
permitted by section 1925. In other words,
il in effect says that II private person
owns waters that are not within the
of private preserves, viz. AN artifi-
cial'pond or pond not exceeding 20 acres.
unless he has posted them, as he is per-
mitted to do by section 1926, the commits
sioneTs, in their discretion, may plant fish
10 such waters, Notwithstanding they are
private property. That is the effect of
that statute taken literally, because, il
hat is not the construction, II it excluded
all private waters, whether private pre-
serves or posted, then IT would only leave |
public waters as the waters in which they
Gould place such fish, and what il says
lbout waters not private preserves or 1
posted waters would be superfluous.
Section 1867 provides that waters stocked /
BY the fish and game commissioners shall /
hereafter be treated as public waters. 4
The legal effect OF that provision is, il ii is I
that whenever a man owning 4
private streams, private property fails 10 1
post them, $50 that by the terms OF the pre-
'eding section To which | have referred,
he fish and game commissioners are per-
nitted to deposit fish therein, by the mere
act OF their so depositing fish therein
hose waters become public waters, and IL
public waters, when not closed by the or
Ter OF fish and game commissioners, every
,itizen in the state, at all suitable times,
mas the right to fish therein. 1t goes fur
her and says, evidently referring TO wa
ers that are so supplied with fish that
AVE not been posted that any person who
night otherwise make the same a private
preserve or posted waters may do so at the
EXPIRATION OF five years from the date OF
]
rs a written notice of his intention so to
10. Then, IL provides what the notice
hall give by way of description, etc; so
hat the further legal effect OF that section
;, that even though a man does not con-
ent, by reason of bis failure to post bis
waters, and the fish and game commits
toner's having taken advantage Of such
allure, and placed fish within them be is
bsolutely deprived Of the right given to
i'm by virtue of ownership for five years.
'or five years they are public waters and
e cannot recover his former right and
state until be has given such notice aud .
We years have elapsed from the date of
living il. And then we come to the sec
ion on which this prosecution is based.
provides that when the fish and game
place fish in a pond or
tream, under the provision OF this chap I
n, they may prohibit fishing therein, or :
ny specified portions thereof, for a period I
OF exceeding three years by posting no 4
ces, etc. This prohibition includes the e
wner as we'll as others. This is the law a
pom which the state must stand il it Sc /
lres conviction on the evidence. 4
What does the evidence tend to show, :
wing IL the most favorable view for the I
ate that is deducible from its legal ten s
ancy II tends to show that in MAY, b
96, the fish and game commissioners l.