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

2,
undisputed evidence is that some time
in July this respondent fished in
! those waters after they were posted. The
| undisputed evidence is that, pursuant
the commissioners caused to be spu blished
notice Tor three weeks successfully in a
newspaper circulated in that vicinity, set
ting forth the posting of the brook, and
substantially the notice that was posted
upon the banks thereof. This prosecution
was commenced within six months of the
alleged offence
On the conceded fact, under the laws of
this State has the respondent committed
any Offense by reason of having fiished in
this stream because it was legally closed
by the hsh and game commissioners? If it
was not legally closed by them, he has not
committed the offence charged in the in
dictment. That is the pith of the case.
At common. law navigable waters are all
waters below that point to which the tide
ordinarily rises in its ebb and flow All
waters below that point, including rivers
and other streams, being tidal waters,
were naVlgable waters, and in them the
kings subjects had right to fish without
let or h1ndrance from any one. Above the
point at which all streams were navieab BILE
at common law, they were not navigable
streams within the meaning or the COM
mon aw,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 transport
themselves and their goods in boats. But
above the point at which the waters ceas-
ed to be navigable, even though they were
boata bic, 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 cath them, if they could, and no
one else had right to fish in those waters.
Ii they did, they violated private right,
because the right of fishery was an ap-
purtenance of the estate. So far as the
right OF private ownership is concerned in
this State, 1t is the same as at common
law save as modified by the constitution.
Way back before this century, when the
founders of the republic took occasion to
speak their minds in regard to this matter
IN the organic law of our commonwealth,
they said that at all suitab BILE seasons of the
year, under such regulations as the Legis-
lature IN its wisdom might enact, the citi-
zens OF this State should have a right at
all seasona BILE times to fish in all boatabIe
waters Within this State, and in all other
waters not private property. This ques-
tlon as to what are boatable waters, as has
been suggested, has been recently before
the court and they have held that it
meant by "bOatab bic waters" BY that |
same decision the court expressly held |
that the State of Vermont had no iuris- |
dlct1on over any waters, in respect to fish
ing therein, save those over which it re- |
tanned 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. 1t may provide1for their propoga-
ton; it may provide for their distribution,
Or make any other regulation that in its
wisdom 7r deems best for the furtherance
0f that right, provided they do not en-
5irely destroy !the right reserved to the
citizen by that constitutional privilege,
They can not SO surround the right to fish
n the public waters as to deprive citizen
entirely of that right. Over private prop
erty, whether it relates to streams or tlOcks
md herds, the State has no power so far
IS taking such property and cOnferring it
lpon the public, unless ii does for a pub
ic use, after compensation is made to the
Every man who has title deed to his
in this State, by virtue of that
title, holds mis- realty, with all the appur-
enances and privileges thereto belonging,
nd, as part of that contract, by the
COMMON law, as an incident of his prop
rty, is the right OF fishing in the waters
herein, unless the waters in which he at
emptS to exercise that right are public |
gaters because boatable waters. The con-
titutiOn of the United States prohibits she
tates from passing any law impairing the
obligation of contracts, and when the
legislature attempts to take AS brook
hat flows through his pasture or his
meadow by the hand of commissioner and
Q give that to the public for five years by
imply planting trout, shad, salmon, or
ther useful fish therein, and by virtue of
hat making it public waters to which all
he people of this State have a right, they
re impairing the contact under which
e holds his property, and they are also
aking private property for public use
rithOut compensation. There isn't any
uestion on the subject. It is not a de-
atable question. That is what this fish
Nv does. Take this very property, all
rivate property, a small stream flowing
trough these meadows, without any
rant from the owners, the State, by the
ct Of these commissioners, attempts to
Ike it by simply putting fish in it, and, if
he law has any efficacy whatever, the fact
lat the owners had not themselves posted
leir waters under section 1926 has de-
rived them of their property for five :
ears, because the commissioners have put
sh therein. We could not live under any
lch law. We think that this statute,
aking no provisions for compensation to \
lese owners when this property is at
mpted to be seized and posted and made
lblic property, is clearly beyond the
oWer OF the Legislature to enact, and we 4
ink that the prosecution for that reason
ust fail. We hold that on the case made
lie respondent is entitled to have a YER
ct directed and we so direct 4