New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1903-09-19
THE PUBLIC SHUT OUT.
1DTRONDICKS PRfV4TE.
UHiidm Rockefeller Wins Suit to
Keep Sp0rtsmen from Preserves.

Inc Appellate Division of the supreme court
i'm the Third Department has rendered dec-
sion under the Forest Fish and Game law which
viii be or great interest TO all sportsmen who
| have hunted and fshed in the Adirondack
Mountains. or who had hoped to do so hereafter.
The court I'm their opinion say they are mind
full that the Interpretation which they put on
the law derives the public at large Of the
pleasure and profit Of fishing and hunting in a
very large portion OF the Adirondack forest.
and gives to men of great wealth. who can
, buy vast tracts Of land great protection in the
enjoyment Of their private privileges"
1t is added that the court cannot review the
wisdom Of the legislature in passing the act
which makes that result possible.
The question for determination in the case
was how far private owner OF property could
go In preventing the public generally from talk
ing fish from streams on his land where por-
ton Of those streams the tributaries thereof
had been stocked by the state at its expense
William Rockefeller was the plaintiff in the
action EIr Rockefeller within the last three or
four years has bought fifty thousand acres OF
land in the Adirondacks and converted IT into
private park. He employs game keepers to pre-
vent trespassers from hunting or fishing on his
property. one Of them discovered that oliver
Lamora was fishing for trout In one Of the
streams I'm Mr.. Rockefeller's park, and the lat
ter caused an action to be brought against
Lanora. under the statute, for the penalty and
exemplary damages therein specified.
The defendant tried TO Justify himself on the
ground that no one could make private park
so as to exclude the general public from fishing
i'm the streams where such streams had been
stocked with fish at the expense Of the State.
The statute contains such n provision and 1t
was contended that under the rulings of the Su-
preme Court no one could secure the exclusive
ys~bs gan,sv -
the States expense. At the trial the court took
that view Of the case and dismissed Mr. Rookie
. feller's complaint He took an appeal however
/ and the judgment of the court below has now
been reversed and new trial ordered.
The court refused to follow the Interpretation
or the statute made by the Appellate Division
/ in the Fourth Department and places a rather
| narrow construction on the law. The court in
the Fourth Department had held that TO estab-
! lsh exclusive rights in a game preserve il was
I necessary for those who claimed them TO show
! that they had actually propagated fish and game
! thereon.
The Third Department. in the decision inst
J given, disagrees with that view and saws If 10
/ only necessary to show that the proper notices
| nave been published indicating an intent TO hold
/ the property as a private game preserve and
| that Ia gain such right it is not necessary TO
propagate fish or game thereon any more than
I they propagate naturally.
Two other points decided by the court are of
/ even greater Importance. 1t is held that where
/ a person is prosecuted for fishing on property
posted as private preserve. and attempts 10
/ justify his right to do So he must not only
show that the streams were stocked with fish
/ by the State. but tat this was done with the
/ consent. or at the request Of the owner Of the
property. The burden is cast upon the defend
ant Of showing this. and the mere fact that the
streams were stocked at the States expense
is Of no Importance unless the unwary fisher
man can show that the owner Of the land con-
! scented at the time that they should he stocked,
? or requested that it be done.
PUBLIC's RIGHTS CUT DOWN
TIL, second point decided by the court was
that the dedication to the public of the right to
/ fish in such streams were stocked at the
/ States expense, even with the consent or upon
! the request of the owner of the land through
which the stream flowed applied only to the
/ particular stream I'm which the fish had been
/ placed by the States agents and not to any Of
4 the branches or tributaries OF that stream.
/ Also. where the same stream ran through the
| land of two more owners. the fact that it
| was stocked at the request Of one Of such own
ers did not make il an open stream so far as the
! public was concerned so as to confer the right
( 10 fish in the same stream on the land of the
/ owner who had not consented to the stocking
made a request that II be done.
This Interpretation. Of course. makes II prac-
I tically impossible for any one TO know where
I he is safe i'm casting a line shooting "''H.
/ except on property retained bv the state The
state has spent many hundreds Of thousands Of
4 dollars in stocking the streams with trout and
/ other game fish in ali parts. If any one fishing
/ in any Of these streams which run through
I private property is hailed To court. he may he
able % show ConClusively that the stream
stocked 10y the State. but there may be no legal
evidence available to him any else that
/ il was done with the consent of the owner Of the
land although that might be the fact 1t is
well known. also. that ip stocking stream
usually the fry are placed in small tributaries
I where they can have Il chance 10 grow before
/ being dovourcd by larger fish. and when they
/ esfu "a size which makes them Of any for
! angling purposes they 20 down TO deeper waters
| IN the main stream. Under the courts decision
n is distinctly determined that the stocking OF a
tributary by the state does not confer the right
I on the public L. fish Ia the main stream