The Honesdale citizen. [volume] (Honesdale, Pa.) 1873-1908, 1908-07-23

oasaing on private land which had been
suly posted as such, and involved also
ths provision Of section % Of the act Of
Nav %, 1901, that Public fishing shall
sxist in all waters and parts OF waters
that have been or may be declared nav
gable"
The Lackawaxen river 6ows across
,ertain land near Aldenville, which David
Hopkins and his predecessors In title had
owned since 1912 and under the act OF
1905 he posted 1t as private property. In
1914, an act OF Assembly made part OF the
river, including this portion, a public
highway ''for the passage Of rafts, boats
and vessels" On May IL, 1906, Harry J.
Foster, contendiDg that the act OF 1901
made the stream open to public fishing,
sntered 1t at a highway crossing, aud
walked along the bottom for some die
tanoe, on the land OF Hopkins, fishing.
The suit was brought to test his right to
10 this.
The opinion OF the Superior Court, on
some points, is too technical to be read
Ily understood by the average laymaD.
In substance, the decision is that after
land hes been sold by the State, with no
it belongs to the purchaser
and his successors in title, and the State
has no power to give any one else any
use 81 II, without the owners consent. or
providing for his compensation. The
opinion, by President Judge Rice, is As
This case came int" the cuurt lelow
by appeal by the defendant from a sum
mary conviction 10y a justice. of the
peace for violation 81 the provisions uf
the act Of April II. 1906. T. L. iGa. en-
titled. An act making 1t unlawful to
trespass upon land posted a. private
property, and providing penalty
therefor. As an appeal from the iudG-
m"nt of the quarter sessions in such a
case does not bring up the evidence. the
case is not before US for review upon
any question Of fact. We must presume.
therefore, that all 81 the essentials to
conviction as set forth in tn. judgment,
were established 10y a competent ana
sufficient evidence. and, amongst these,
the facts that the defendant wiliully
entered upon the lanG of David Hopkins,
the relat'r. without his consent; that
printed notices that IL was privat, land
and warning all persons against tres
passing thereon had ieen previously
pasted by the owner in the manner pre-
scrited 10y the act, and that the notices
remained 50 posted at the time of the
alleged tTespass. Nowhere in the record
proper is II expressly stated that the
land upon which the defendant entered
was the Ted Of LackawaNen cr.ek. II
is conceded, however, ON all hands that
such Is the fact. But neither that fact
nor any other fact upon which the court
based its Judgment qualities in any de
gree the REALTORS ownership 81 the land.
But although his ownership is undisput-
ed. IL is contended that he cannot claim
the protection of the act of laoj land il
50 he could not maintain the common
law action of trespassl as against ore
going upon that part of his land fot ih..
purpose of fishing, is,cause 10y the prior
act Of 1901. the Legislature declared that
''puhlic fishing shall exist in certain
waters, amongst them, all waters or
parts Of waters that have been or may
be declared navigable 10y acts of ASSEM-
bly," In which class Of waters. il is
claimed, the part of Lackawaxen creek
where this alleged trespass was commit
ted was placed by the act Of 1sli. II Is
not seriously claimed. AT least, il cannot
he successfully claimed. that this assert
ed right OF the public Ia 60 upon the
land in question for the purpose of fish
ing is a common law right, nor that il
was reserved 10y the COMMONWEALTH in
Its grant Of the land 10 the REALTORS
IitutNfraebTS Ill Iudl WAS
Conferred by the act Of 1914. Therefore,
to sustain appellants contention that
he. as well as every other member Of the
general public, has this right. these
propositions must be Established: First,
that the legislature intended 10y the act
Of 1901, lal Ia include in the desi ignetion,
All -WN1sAzanass& pats Of waters that
have been or may be declared navigahle
by acts Of assembly" every stream,
large or small, navigable or unnaviga-
l.l hat haa.N "A. IL
highway for the passage of RATS. hoats
and vessels. lb) to give to every menl-
Der Of the public the right To go upon
the land over which any such stream
flows for the purpose Of fishing, and Ia
that extent TO deprive the owner Of his
dominion over the same; second, that
this right still continues notwithstand-
ing the generality of the words Of the
act Of 1905, and, third, that ii was with
In the power of the Legislature to give
the public such right, and IL THUS re-
strict the dominion over land which ap-
pertains Ia private ownership, without
providing for just compensation being
made or secured to the owner. and that,
too. although the stream be not in fact
navigahle by nature. and has never been
In fact, OF been declared 10y the legisla-
ture, public highway except for lin
tied purpose. Before adopting n con-
struction Of the twenty y-third section If
the act of 1891, which would he So far
the owner of the land to control its Use.
so long as such Use does not injuTiously
affect Others, 1t ought 10 lee clear that
the very woIds Of the act require such
construction. To say the LEAST ther"
Il nom Tor argument that the words of
the twenty-ihird section. particularly
when read in connection with the pre-
ceding section, do not require the con
struction which the appellants counsel
claim for them. But he that a. il NAV
nd i'm hat hA tAtEi lat in
tended all that is claimed, We cannot
agIee with the appellants counsel that
the legislation can lie sustained As legit-
innate exercise Of the police pnwer, upon
the ground-and We must 50 cnnsirue
their printed argument that the public
health and comfort will ls- sutt-crV,d
thereby. No case cited by the learned
counsel goes Ia the extent, or anywhere
near the point. of holding that il Is with
in the power of the Legislature Ia l.Iu-
vide for the public the means II health
ful recreation upon private land, and for
that purppse to deprive the owner of
his right Ia control the use of IL, with
out oompensating him for such partial
OF total destruction Of his dominion over
It, III the legislature may do IL III the
manner and for the purpose here claim
al, IL would I've difficult Ia draw the line
beyond which IL may not go for that pui-
pose. In the case uf Vermont Y. Theri-
ault, 43 l.. L. A. 2au. which goes a. far
the state over such streams lie this
IL was carefully noted in the opinion of
the majority Of the court that 10y pro-
Viding that such waters should l-- water1
over which the state has jurisdiction the
legislature did not take away the ripa-
rian owners right Ia maintain fre~r,a-s
against rNeTyone who should enter with
out his license upon his premises and
catch fish from the nun-lnaiatle -krram
thereon. But We u@,d not pIuluug th.
discussion. Our purpose in what We have
said has hean to state the question fpl
decision and our conclusion thereon.
The nature of this creek and the Uses tu
which II is adapted, and has been put. a.
we'll as the Legislation pertaining Ia 1t
and similar streams have leen fully s,t
forth In the opinion of the learned Judge
teluw; he has also discussed the legal
questions as fully as IL profitable, and
has sustained his conclusion by reilsnn-
ing and citation - authority which make
il unnev-aaaTy fuT us Ia add auy1 hing
further tu what he has 80 We'll said The
| Judgment IL affirmed.
HYDRoPHoBIA has been eXtirpated i
England. The method is simple b,