Majority
p. 163The People against Platt and others.
Headnote
THE defendants were indicted for a nuisance, at the General Sessions of the Peace, for Clinton county, in January, 1818. The indictment contained three counts. The first count stated, that the river Saranac runs through the county of Clinton, and empties into Lake Champlain, and that, before the nuisance complained of, salmon were accustomed to pass, and did actually pass, from Lake Champlain into and up the river Saranac, for a distance of twenty miles ; that by the laws and statutes of the state, it is made unlawful for any person or persons to erect any dam or other obstruction *along, across, in and over the said river, in such manner as to obstruct the course and passage of the fish, to wit, salmon, out of Lake Champlain, into, up, and along the said river, to the distance of twenty miles. That on the 1st of January, 1817, and at divers other days, &c., the defendants, disregarding, Ac., erected and built, and continued a dam, over, along, and across the said river, m the town of Plattsburgh, near to the entrance of the said river into Lake Champlain,'in such a manner as to obstruct the passage of salmon out of Lake Champlain, into, up, and along the said river, for the distance of twenty miles, &,c., to the evil example, &c., contrary to the statute in such case made, &c. The second- count stated that, from time immemorial, the Saranac has run through the county of Clinton, and town of Plattsburgh, and emptied into Lake Champlain, and that before the nuisance complained of, salmon were accustomed to pass, and did actually pass, from Lake Champlain, into, and up the Saranac, for a long distance, and above the nuisance complained of, to wit, 20 miles ; and that on the 28th of March, 1800, there was, and for a long time before had been, a mill dam across the said river, near its mouth, to wit, within sixty rods, which dam was constructed in such a manner, as wholly to obstruct, and did obstruct the usual course of salmon coming up the said river; and that on the 1st of October, 1801, and from the 28th of March, 1800, and for a long time before and since, continually to the present time, the said mill dam was not constructed, or altered, by making a slope thereto, not exceeding 45 degrees, and planking the same in such smooth manner, that salmon might easily pass over into theBy ihe ,. em granted to of a ‘ract of ofTffe Champlain,¡mí on TothS ⅛ oftberiver⅛⅛-m¡ies’ sq¡,are" 5h,hw|“ftriver’ passed 'uT'thé patentee, and proper-V. lhcre be‘r|g of the river, nor r®s.trieUf°" expressed in the s™jM light V"/!*my [“,⅛,⅜⅞ patent, it not yt!nrfVg"av4?f¿ erection' of a iurafnearufé ¡.“ff'bvwhS salmon me prevent?d river from the nor” un<ier "the statute fo.r fish in certain isoi, (i K. & R. L. 420. sess. lake, is not indictable, as a public nuisance, either at the common law. 24. eh. 127.] and re-enacted April 5th, 1813, (2 N. R. L. 238, 36 sess. ch. 62. sect. 3. 3 Rev. Stat. 318.) "which required the owners of mill or other dams, which, on the 28th of March, 1800, were made across . any river or creek running into Lakes Ontario, Erie or Champlain, so as to obstruct the usual course of "•saimón in going up (hose rivers and creeks, to alter their dams, by making slopes to them, in the manner prescribed, so that salmon might freely pass over the dam.
• Those statutes ought to be construed with an implied exception of such rivers or streams (not being navigable) as had been fully, and absolutely, granted by the state, without any reservation, or limitation in the use of them.
And those statutes, so far as they affect the rights of Z. Platt and his assigns, to the absolute and exclu give enjoyment of the Saranac, within the bounds of the patent to him, or impair the obligation of the contract, are unconstitutional and void.
p. 164
waters above the dam, nor by removing the obstruction of the said dam, in any other manner, so that salmon might freely pass into the waters above the dam ; but the said dam remains, &c- And that the defendants, on the 28th of March, 1800, and since to the present time, have possessed, repaired, and kept and supported the said dam across the said river, so as wholly to obstruct the usual course of the salmon, A <•. The third count, stated, that before the nuisance complained of, and lor time immemorial, salmon were accustomed to pass, and did actually pass, out of the Lake Champlain, into, and up the said river, &c. That since the 28th of March, 1800, *there had been a dam across the Saranac, &e., and which had not been constructed, or altered by making a slope, &c., so that the salmon might pass above it, &c. And that the defendants, on the 1st of May, 1816, had possessed, repaired, and constantly kept up the said dam, in such manner as wholly to obstruct the passage of salmon up the said river, &e.
A great number of witnesses were examined on the trial of the indictment. It appeared, that in 1784, the country through which the Saranac runs was wild and uninhabited ; and a patent for a tract of land, dated the 26th of October, 1784, was granted to Zephaniah Platt, which is bounded on the east by Lake Champlain, and extending west, on both sides of the Saranac river, being seven miles square. This patent contained no other exception or reservation, except those of “all mines of gold and silver, salt lakes, springs and mines of salt, and carrying places upon any water communications, which may be found or contained within the limits of the said land, and two small tracts for the use of a minister of the gospel, and a public school,” It was admitted, that the defendants derived a regular title to the mill property, with its appurtenances, including the dam, pond, and the land on both sides of the Saranac, under this patent. The first dam erected by the patentee was in 1785 or 1786; and at that time there were but two or three inhabitants above the dam. The patentee exercised exclusive acts of ownership over the river and its waters where the mill, dam and pond now are, from the time the first dam was erected ; and the subsequent proprietors and possessors under him have continued to exercise the same ownership. The Saranac rises in the Highlands, near the head waters of the Hudson, and runs nearly east, until it empties into Lake Champlain, near Cumberland, bay. It is a rough, rapid, and shallow stream, with a rocky bed, until it approaches the town of Plattsburgh. There is a fall of water about three miles above the mills, of about 15 feet, called “ Vredenbergh Falls;” and another fall, about 7 miles from the Lake, called the “ Great Falls.” The river is not navigable for any kind of boats or craft; and no timber was floated down the river until about the year 1810, and the defendants received compensation *for the privilege of floating it. No
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rafts of timber, or cribs, can be floated down the river, but only single pieces, or saw-logs, and that only during freshets, or two or three times in the year ; and even then it is attended with so much difficulty, that transportation by land is generally preferred.
Before the dam was erected, in 1786, salmon were seen above it; and, after it was built, many were caught at the foot of the dam, but none above it. In 1797, the old dam was pulled down, and a new one erected about 40 rods below it. In 1801, within the time required by the statute, a sluice way or slope was erected for the purpose of enabling salmon to ascend the dam into the river above ; but, on account of the shallowness of the water, they have never been able to ascend ; and the number which used to appear had greatly diminished. Salmon begin to ascend the river from the lake, in June and Juli/, but most in August and September. The timbers of the sluice way or slope, are about forty feet long, and the dam is about 14 feet high. The elevation of the sluice is about 30 degrees ; and it could not be altered or so constructed as to permit salmon to ascend above it, without injuring the mills.
A. verdict was entered, by consent, for the defendants, subject to the opinion of this court, on a case made, which either party might turn into a special verdict; and that all proceedings should be removed into this court, and such judgment be entered as the court might direct.
Sperry, for the plaintiffs.
By the last section of the act for the preservation of salmon in certain rivers running into lakes Ontario, Erie, and Champlain, passed the 28th of March, 1800, (sess. 23. ch. 74.) it is enacted, that !! the owners of mill dams or other dams, now erected or made across any of the said rivers or creeks, or across any river or creek running into lakes Ontario, Erie, or Champlain, so as to prevent the usual course of the salmon from going up the said rivers or creeks, shall, within eighteen months from the passing of this act, so alter sucli mill dam or other dam, by making a slope thereto not exceeding forty-five degrees, and planked in such smooth manner that salmon may easily pass *up over into the waters above the dam, or by removing the obstructions of such dam, in any other manner, so that salmon may freely pass into the waters above the dam, on penalty of 200 dollars, &c. ; and in case such mill dam, or other dam, shall not be so altered, as aforesaid, within the time above mentioned for that purpose, such mill darn, or other dam, shall be deemed a public nuisance, and, as such, shall be removed in like manner as public nuisances are by law removed.” This section was re-enacted, on the revision of the laws in 1801, (1 K. ⅝ R- L. 422. sess. 24. ch. 127.) and the same act is to be found in the last revision of the laws in 1813. (2 N. R. L. 23S. sess. 36. ch. 61. s. 3. 3 Revised Statutes, 318.)
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Independent of this statutory prohibition, on principles of the common law, the defendant had no right to obstruct the passage of fish up the river. In Shaw and others v. Crawford, ( 10 Johns. Rep. 236 .) this court laid down this principle, that every owner of a mill dam on a stream which fish from the ocean annually visit, is bound to provide a passage way for the fish to ascend.’'' In that case, the Battcnkill, in the county of Washington, though not declared by statute to be a public highway, yet having been used by the public, for more than 26 years, for the purpose of floating down timber and boards, it was held, that the usage had grown into a public right, and that an action would lie against a person for obstructing the passage of rafts, by the erection of a mill dam. In Stoughton and others v. Baker, (4 Mass. Bcp. 522.) which was the case of a dam across the Neponset river, the Supreme Court of Massachusetts laid down the same doctrine. The defendant, in that case, claimed under a grant of a mill dam. and a weir for taking fish, appurtenant to the dam, in 1683, from the town of Dorchester, by winch the grantee had a several fishery, which was confirmed by the colonial legislature, and without any sluice way for the passage of fish, until 1789, when the legislature directed that a passage should be opened for fish. Chief Justice Parsons, who delivered the opinion of the court, said, that whether the defendant had a franchise of a several fishery, or not, made no difference. The public still had a right to have a convenient passage way for fish to ascend the river to the ponds ; and that every owner of a mill dam holds it on the condition, %r under the limitation, that a sufficient and reasonable passage way shall be allowed for the fish. That this limitation, being for the benefit of the public, was not extinguished by any inattention or neglect in compelling the owner of a mill dam to comply with it.
It is no objection, in this view of the case, that the indictment is laid contra formam statuti; for those words may be rejected, if necessary, and the indictment is maintainable at common law. (1 Chitty C. L. 238. 2 Hawk. Indict. St.)
It will be contended by the defendants, that the Saranac is not a navigable river, and that the defendants, after the exclusive enjoyment of their property for so many years, cannot now be disturbed. The cases which have been cited, show that no laches can be imputed to the government or the public.
But it will be said that the act of the legislature was contrary to the constitution, and, therefore, void. Tire right of the legislature to regulate the use of navigable waters within the territory of the state cannot be questioned. ( 9 Johns. Rep. 561 .) The legislature have declared most of the rivers and creeks in the state, public highways, and have provided for the punishment of those who shall, by mills, dams, or weirs, obstruct their navigation. The different acts on the subject, passed from time to time, are embodied in the revised
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act of 1813, (2 N. R. L. 285. sess. 36. c. 47.) The legislature have never considered these acts as unconstitutional. If these private rivers are thus made public highways, the obstruction of them, whereby the public are prevented from using them in the usual manner, is a nuisance. |JThe Battenkill is a much smaller stream than the Saranac. s But the court said, that though it was omitted in the acts declaring certain rivers and streams highways, yet the public had acquired a right to use it. “A river not navigable, in the common law sense of the term, and though the fee of it belongs to the owners of the adjoining banks, may still be liable to the public uses of rafting and boat navigation, as a public highway.” ( 10 Johns. Rep. 231 . 3 Caines, 307. 318, 319.) But there is an express reservation in the patent, to Z. Platt, of all carrying places on all waters within tíre land granted. There is, also, an implied reservation as to roads or highways. #( 14 Johns. Rep. 255 . 1 Mml. 105. Wilks, 265. 4 Burr. 2162. 2165.) ^
Should the statute of limitations be objected, it may be answered, that the maintaining and keeping up the dam, without allowing a free passage to salmon above it, is a continued nuisance.
Walworth, contra.
1. The Saranac is not a navigable river, and the obstruction of it, therefore, is not a public nuisance; and if navigable, the public right is extinguished by the long, uninterrupted, and exclusive possession and enjoyment of it by Z. Platt, and the defendants under him. Inland waters or streams are of three kinds : 1, Arms of the sea, where the tide usually ebbs and flows, which, belonging to the crown or government, no individual can have any right therein, except by grant. (1 Harg. Law Tracts, 17.) 2. Large navigable rivers, used for navigation by vessels and boats: such as the Hudson, the Suse/uehannah, and Connecticut rivers. By an act passed 9th of March, 1771, and which was re-enacted the 31st of March, 1785, the legislature of Pennsylvania declared the Smquehannah a public highway, (2 Laws of Pennsylvania. 311. ch. 1144.) 3. Streams of water, not navigable, and which belong, exclusively, to the owners of the adjacent soil. (1 Harg. Tracts, 5. 8. 9.)
To make a river a navigable or public river, it must be navigable at all seasons ; not occasionally, when swollen by rain or fresfiets. There is scarcely a stream or rivulet in the country that may not, at some time, be so swelled by rains as to be conveniently used by the public for floating rafts, or even for boats. But the evidence in this case shows that no boat ever went up or down the Saranac; that it cannot be passed, in ordinary seasons, even with a canoe. Timber cannot be floated down in rafts; and large single pieces pass down with great difficulty, and at much expense. The case of Shaw v. Crawford is not applicable. It was decided on the principle
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that the Battenkill, having been used as a public highway for 27 years, a right of passage had been acquired by the public; and the cases show, that exclusive use or possession of water, in any particular way, for 20 years, gives a right. (Bailey v. Shaw, 6 East, *2<®—214. 3 Caines, 316. Cotop. 102. 10 Johns. Rep. 380 . 3 Term Rep. 159.) Twenty years peaceable and uninterrupted possession is sufficient to afford the presumption of a grunt, and that grant is presumed to be commensurate with the right actually enjoyed. (2 Sound. 175. n. (a) 1 Bos. & Bull. 402. Phillips’s Ed. 122.) The exclusive enjoyment of this river by the patentee, and those claiming under him, from the year 1785, was fully proved. The Sar-anac, for seven miles from its mouth, is included within the patent to Z. Platt, which contains no reservation of the river or water.
2. The owners of land, on each side of the river, have an exclusive right to the fishery in it; and if the dam is an injury to the fishery, the only remedy is by an action on the case by the owner of the land adjoining the river. Where a nuisance affects a private individual, the remedy is by action, not by indictment. (4 Burr. 2162. 4 Dallas, 67. 1 Mod. Í05.) Again, there ivas no fishery in this river. The land was uninhabited and unoccupied before the patent to Z. Plait, who erected the dam the year after he obtained the grant. ■ The erection of the dam, then,,created the only fishery, for it is not until after its erection that we hear of salmon being caught, and that below the dam. It is a well known fact, that salmon have abandoned all the small rivers and streams in that part of the county, since it has become inhabited, and the rivers are used for mills, boats, or rafts.
3. But we contend, that the act (sess. 24. ch. 127.) is unconstitutional and void. When that act was passed, Z. Platt, under the patent to him, had a vested right in this mill dam, and to the use of the water within the limits of his grant. There are many mills on the Saranac, and the evidence shows that it is not possible to make a sluice way or slope, which salmon can ascend, without injuring the mills and rendering them useless. It is well settled, that the legislature cannot take away private property without making compensation to the owner. The owner of land through which a stream of water runs has a legal right to the use of the water, of which he cannot Be deprived without his consent, or a just, compensation. (Gardner v. Newburgh, * 2 Johns. Ch. Rep. 162 .) The act ought, to be so construed as to except cases where individuals had already erected dams which would not admit of such a sluice* way or slope, as would permit fish easily to ascend, without destroying all their property in the mills. For we cannot presume that the legislature intended- such a violation of private right, or that it not only required the party to destroy his own property, but to do it at his own expense.
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[Spencer, Ch. J. If the right was absolutely vested m Z. Piatt, no person will pretend that the legislature could divest him of that right without making compensation.]
Again; no fish visit this river from the ocean. These sal-anon ascend from the lakes, and are fresh water fish. The case of Stoughton v. Baker, decided in Massachusetts, is not applicable The JSepanset is a river which empties into the sea, and which is annually visited by shad and other fish from the ocean. The Saranac is not such a river. Besides, there are peculiar features in that. case. By the royal charters granted to the JSew England colonies, all fisheries, &c. are expressly granted for the use of the colonies. (1 Tmmb. Hist, ofi Connecticut, 55. Appendix.) And, accordingly, we find the legislature of Massachusetts, as early as 1641, declaring all the fisheries, &c. in rivers, ponds, and coves, where the sea ebbs and flows, free to all persons, and authorizing them to go across the lands of the proprietors for that purpose. (2 Laws Man. 996. Appendix.) in 1709, the legislature of Massachusetts passed a general law, prohibiting the building of any dam, &c. which would obstruct the passage of fish up the rivers, Ac.: but this act did not extend to any dam already built. In 1746, another act was passed on the same subject, directing ways or sluices to be built in all dams, so as to allow fish to ascend ; but so careful were they of the rights of private property, that, they direct that the fish-ways in all such dams as were erected prior to the first act, should be made at the public expense. (2 Mass. Laxos, 992. 1020.) Ch. J. Parsons admits, that before the grant of the mill privilege to Israel Stough-ton, the public at large had a free fishery in the river. These acts of the legislature of * Massachusetts were all passed before the adoption of the constitution of the United States, and had been acquiesced in for more than a century. The rights were acquired under those laws. It was no violation of private right to pass a law requiring a fishway to be made. In this state, the public claimed no right to these rivers or streams until after the adoption of the constitution ; and the act of 1800 was not passed until 15 years after the defendant’s dam had been erected ; and that act can be construed to extend only to streams which belonged to the public, either by reservation, or as being navigable, or in which a public right of fishery existed. But the public had no right to the fish or fishery in this river. It belonged to the patentee, and the legislature could not take awaj- his right, without impairing the obligation of a contract.
4. The remedy, in this case, if any, is barred by lapse of time. In Ungland, there is no general statute of limitations in regard to prosecutions for crimes. But our statute (sess. 24. ch. 183. 1 iV. R. L. 184.) is general. All suits, informations, and indictments, for any crime or misdemeanor, murder excepted, must be brought or exhibited within three years next after the
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offence shall have been committed. If this dam was a public nuisance at all, it was so immediately after the act of 1800 was passed. If the .reasoning on the other side be correct, it would be a ground for an indictment a hundred years hence. In the case of the King v. Smith, (4 Esp. N. P. Rep. 109.) Lord Ellenborough held, that the enjoyment of a place for a market for 20 years barred any prosecution for a nuisance, and directed an acquittal of the defendant.
5. The sluice-way, or slope for the salmon to ascend the dam, has been made according to the directions of the act of 1800.
Foot, on the same side.
There are three kinds of fisheries, viz. a common of fishery, a free fishery, and a several fishery, (2 Bl. Com. 39, 40.) A common of fishery is a right to take fish in all waters, strictly called navigable, and belongs to every citizen of the state. The owner of this right has no property in the fish until he takes them.
* A free fishery is an exclusive right of fishing in a certain designated portion of navigable waters ; or of fishing in them generally, at appointed times. This right is acquired only by grant from the state, or by prescription, which is evidence of a grant. The owner of it has a property in the fish before they are caught.
A several fishery is an exclusive right in the owner of the soil, adjoining waters not strictly denominated navigable, to take fish in those waters to the middle of them, and opposite his own land.
Navigable waters, in strictness, are arms of the sea, and rivers in which the tide ebbs and flow's. These waters, and the bed of them, belong to the people, and do not pass by a grant of the adjoining land. The fishing in them is a common of fishery. They may be called the first class of navigable waters; and with them we may class the large lakes which are capable of being used in the same way.
There are other waters, sometimes called navigable; though, rightly speaking, they ought not to receive that appellation. These are rivers in which the tide does not ebb and flow': vet, in the language of the books, they “ are subject to the servitude of the public interest for the carriage of boats, rafts. Ac., provided they can be so used advantageously by the public.” Such waters, and the bed of them, pass, by a grant of the adjoining soil, as appurtenances. If an individual owns the land on both sides, he takes the whole of the waters and their bed; and if he owns the land only on one side, he takes the water and the bed to the centre. These may be called the second class of navigable waters ; and to them may be added small lakes susceptible of the same public use. The fishery in them is a several fishery, and belongs exclusively to the owners of the adjoining soil. (3 Caines’s Rep. 312. 10 Johns. Rep. 237
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Doug. 444. lieu. 152. Mar. Law Tracts, pt. 1. ch. 1, 2, 3, 4. 5 Davies’s iep. JLo2. Burr. Rep. 2162.)
The proposition to which the attention of the court is particularly called is, that the owners of the land adjoining the second class of navigable waters have the exclusive right to the fishery in them, it being a several fishery. The Supreme Court of Errors of the State of Connecticut, *in June, 1818, (cited from a newspaper,) decided, that “ the proprietors of land on the Connecticut river, above the flowing of. the tide, have an exclusive right of fishery, and of the use of the water, generally, to the middle of the river, subject only to the public right of passage with boats, rafts, &c.”
The counsel then examined the facts in the case, and insisted that the river in question did not belong to the second class of navigable waters, but was a private stream, owned by the defendants, and that no individual, nor the public, had any right to it, or to the fishery in its waters. Yet, admitting that it did belong to the second class of navigable waters, still the defendants, owning the bed of the river, and the lands on each side of it to the top of the banks, as far up the river as there is any testimony that salmon ever went, have an exclusive right to the fishing in its waters opposite their lands; and no judgment, therefore, can be given against them on the first count of the indictment, it being on the common law, and for a violation of a right of fishery supported by that law.
Again; suppose it was proved, that the dam in question obstructed the passage of the fish up the river, so as to injure materially the fishery of those who own lands adjoining the river, above the property of the defendants. The injury would not then be common to all the inhabitants of the state, but to a given portion of them; and the remedy should be by action, and not indictment. (Hawk. P. C. lib. 1. ch. 75. and authorities tjjpre cited.) if the remedy, in consequence of the multiplicity of suits, should be found inconvenient, the Court of Chancery would give the proper relief. Cases are found, in which an indictment has been sustained for an injury to a common of fishery, but not for an injury to a several or free fishery.
The defendants ought not to be convicted on the second and third counts of the indictment, which are founded on the statute, because that statute is unconstitutional. By the case, it appears that there is not more water in the river, in ordinary seasons, than is required to keep in full operation the mills and factories of the defendants ; and that a slope, constructed according to the statute, would take from the mills a large column of water, the want of which would oftentimes impede their operation, and would effectually ^prevent the erection of any new works or factories, which hereafter may be advantageously erected by the defendants, if their waiter privileges are left entire. A compliance with the statute must, therefore,
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seriously injure the rights of the defendants. The river is a private stream, as has been shown from the facts in the case • and its bed, and the waters flowing in it, did, therefore, vest in Z. Plait, by virtue of the patent to him, and are now vested in the defendants who hold under him. But admitting that the river belongs to the second class of navigable waters, still the fishery and the general use of the water in the river, through the extent of the patent, subject to the public right of rafting, boating, &c., vested by virtue of the patent in Z. Platt, and are now vested in the defendants. The statute interferes with and injures those rights, without furnishing a compensation to the owners. Such a statute must be unconstitutional. A majority of this court so held, in the case of Dash v. Van Kleeck, ( 7 Johns. Rep. 477 .) The principle is settled, however, in the case of Fletcher v. Peck, (6 Cranch’s Rep. 131.) In that case, the Supreme Court of the United States held, that a right vested is a contract executed, and a statute impairing a vested right impairs the obligation of a contract, and is unconstitutional. This case was reviewed and approved of by the same court, in the cause of the State of New-Jersey v. Wilson, (7 Cranch’s Rep. 164.)
T. Sedgwick, in reply.
The indictment is good under the statute. The act says there shall be a slope so constructed as to permit the salmon freely to pass above the dam. Now7 the evidence show's that it was so constructed that salmon could not ascend. But if the indictment cannot be supported under the statute, it is good at common law.
The reservation of “carrying places,” in the patent to Z. Platt, shows that the Saranac was considered a public river, and might be declared a public highway ; and it. has been declared to be a highway. Fisheries, in every country, are guarded with great care, and under the most cautious^egulations. Our statute book show's the extreme solicitude of the legislature to preserve the fisheries in our #rivers, for the use of the public. The salmon fishery is particularly valuable. Salmon abound in our lakes, and penetrate all the streams which empty into the lakes. The settling of the country by inhabitants does not deter them from ascending the rivers; it is the numerous dams and obstructions which are erected on these streams which prevent their passage. The evidence in the case is, that salmon abound at the foot of the dam, and would ascend the river if not hindered by that obstruction. The numerous sections of the “act relative to fisheries in certain waters,” (2 N. R. L. 238.) show that it is the policy of the state to preserve the fish. The owners of the land cannot take fish on these rivers and waters except in the mode prescribed by the legislature. The court said, in the case of Slum v. Crawford, that “ every impediment to the natural course and natural use of rivers and streams, which essentially contribute to the public benefit, be
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comes a public nuisance.’-’ The case of Stoughton v. Baker is strongly in favor of the plaintiffs. That case underwent mu b discussion, and was decided, not on a particular statute of Massachusetts, but on the broad and general principles of the common law. It is there laid down as an established rule, that every person erecting a mill or dam on a river, unless .he has a grant, must leave a free passage to the fish. Though the owner of the land may have a right ad medium filum aqua, yet lie cannot so obstruct the river as to prevent the passage of the lish, or drive them from their accustomed haunt. The maxim is, sic utere tuo, aut aiicnum non lad as. If the public have a riiiht to pass with boats, or float timber, the individual cannot, consistently, have a right to set his nets for fishing. When these rivers were declared, by statute, public highways, the exclusive right of any individual to the use of them ceased. It i.- -aid that an indictment does not lie, but that the party should bring his private action. Certainly not, where so many persons are interested.
Again; it is said, that there has been an uninterrupted enjoyment of this river, by the defendants, since 1786. But in regard to easements of this nature, there can be no presumption, from lapse of time, against the public. The legislature of Pennsylvania declared the Su-squehannah, including %11 its branches, a public highway, on account of its great importance to the public, in floating down timber and lumber; although the tide does not,ebb and flow higher than Havre de Grace. The Saranac being susceptible of this use, to the great convenience of the public, is, quoad hoc, a public highway,[1]
delivered the opinion of the court. In consider ng this case, these facts will be assumed : that the defendant has omitted to comply with the requirements of the acts of 1801 and 1813; that the dam across the Saranac has not been altered so as to admit the passage of salmon into the waters above it; and that, prior to the erection of a dam across the Saranac, at its mouth, salmon passed up that river, above the present dam, I shall not notice several minor exceptions to. the indictment, which were taken on the argument, as I prefer placing my opinion on the broad question, whether, under the facts proved, the defendant’s dam can legally be considered and treated as a public nuisance.
From an examination of the authorities which I have been able to consult, I am satisfied that thedefendanthasa.com-
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píete and exclusive ownership of the Saranac, from its con fluence with the lake, so far as he has succeeded to the rights of Z. Platt. Lord Hale, in his treatise de jure maria et bra-chionum ejusdem, edited by Mr. Hargrave, (pages 8 and 9,) says, “ There be some streams or rivers, that are private, not only in propriety and ownership, but also in use, as little streams or rivers that are not a common passage for the Icing’s people. Again, there be other rivers, as well fresh as #salt, that are of common or public use for carriage of boats and lighters, and these, whether they are fresh or salt, whether they flow and reflow, or not, are, prima facie, publici juris, common highways for a man or goods, or both, from one inland town to another.” “ Thus (he observes) the rivers of Wey, of Severn, of Thames, and divers others, as well above the bridges and ports, as below, and as well above the flowings of the sea, as below, and as well where they are become private property, as in what parts they are of the king’s property, are public rivers, juris publici; and, therefore, all nuisances and impediments of passage of boats and vessels, though in the private soil of any person, may be punished by indictment, and removed.” Again ; (page 5,) he says, “Fresh rivers, of what kind soever, do, of common right, belong to the owners of the soil adjacent, so that the owners of one side have, of common right, the propriety of the soil, and, consequently, the right of fishing usque ad filum aqua, and the owners of the other side, the right of soil or ownership and fishing unto the filum aqua on their side ; and, if a man be owner of the land on both sides, in common presumption, he is owner of the whole river, and hath the right of fishing according to the extent of his land in length; with this (he adds) agrees the common experience.” I have extracted fully and freely from this valuable treatise, because it is universally considered as high authority, of itself, and because it defines, with more precision than any other work, what constitutes a public river; and marks the distinction between such as are public and those which are private property. The adjudged cases will, however, bear out all the positions laid down by Lord Hale. In Lord Fitzwalter’s case, (1 Mod. 105.) the question was, whether the defendant had not the right of exclusive fishing in the river of Wall-fleet. Hale, chief justice, ruled, that in the case of a private river, the lord having the soil, is good evidence to prove that he has the right of fishing, and it put the proof on them that claim liberam piscariam; but in case of a river that flows and reflows, and is an arm of the sea, there, prima facie, it is common to all. In the case of Carter v. Murcott, (4 Burr. 2162.) Lord Mansfield held, that the *rules of law were uniform: in rivers not navigable, the proprietors of the land have the right of fishing, on their respective sides, and it generally extended ad filum medium aqua; but in navigable rivers, the proprietors of the land on each side have it
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not; the fishing is common; it is, prima facie, in the king, and is public. I cannot discover that these principles and distinctions have ever been denied, or overruled; and I ven-lure to say, that they are of indisputable authority. We perceive, then, that some rivers and streams are wholly and absolutely private property, and that others are private property, subject, nevertheless, to the servitude of the public interest, and, in that sense, are to be regarded common highways, by water. The distinguishing test between those rivers which are entirely private property, and those which are private property subject to the public use and enjoyment, consists in the fact, whether they are susceptible, or not, of use as a common passage for the public. In Palmer v. Mulligan, (3 Caines’s Rep. 319.) this distinction was adopted by Chief Justice Kent. No case or dictum has been cited, unless it be those of Stough-ton v. Baker, ( 4 Tyng, 522 .) and Shaw and others v. Crawford, ( 10 Johns. Rep. 236 .) which considers the circumstance, that fish generally, or salmon, (which Lord Hale pronounces not to oe royal fish,) frequent a river at certain seasons, as having any controlling effect on the question, whether the river is to be regarded as private property, or liable to the public servitude; on the contrary, we have seen that this circumstance has no influence on the question. It is evident, on looking into the case of Shaw and Crawford, that the court placed the decision on the fact, that the Bdttenkill had been used, for twenty-six years, for rafting; and we held, that a usage, for such a length of time, would grow into a public right, especially when the public interest was so essentially promoted. The observation, “ that every owner of a mill-dam on a stream which fish from the ocean annually visit, is bound to provide a convenient passage-way for the fish to ascend,” was an obiter dictum, unnecessary to the decision of the cause, and founded entirely on the case of Stoughton v. Baker. In that case, the Supreme Court of Massachusetts #held, that a legislative resolution appointing a committee, who were authorized to require the proprietors of certain dams on Neponset river, to alter them, in such way as should be sufficient for the passage of shad and alewives, at the dams, was a legal proceeding, not repugnant to the constitution. The opinion is founded on the ancient and long continued usage of the general court of Massachusetts, to appoint commissioners to locate and describe the site arid dimensions of passage-ways for fish; and, under the circumstances of the case, it was held, that the right of the proprietor of the dam was subject to the limitation that a reasonable and sufficient passage should be allowed for the fish. The court, however, expressly say, that any prostration of the dam not within the limitation, would be an injury to the owner, for which he might appeal to his country, and have a remedy ; and that if the government, in the grant of a mill privilege, expressly, or by necessary implication, waive this limitation, it would
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be bound. In the case then under consideration, the court say; ⅛ would be an unreasonable construction of the grant to admit, that by it all the people were deprived of a free fishery m river above the dam, to which, until the grant, they 'were unquestionably entitled. Whether, in that case, the IS < ponset river was navigable above the dam, is no where affirmed or denied; but it is perfectly clear that the court proceeded on local usages and customs, and not upon the general and received doctrines of the common law; for not a single case is referred to, nor is it even asserted, that the principles advanced are sanctioned by the English common law; whereas, it has been shown, that, by the common law, the property in the river Saranac passed to Zephaniah Platt, and has been transmitted, through him, to the defendants, without any limitation or restriction, and that the fishery itself became vested in the proprietor of the river ; it being a conceded fact, that the river is unnavigable for boats of any kind; for there is no weight in the circumstance that., for a few years past, and since 1810, rafts have occasionally been brought down this river, when connected with, the fact that the defendant has received a consideration for that privilege. So far, then, from this being the exercise of a public *right, it is a recognition of the defendant’s property in the river, and fortifies and supports the defendant’s claim to it, as private property. In a case thus circumstanced, the opinion of the court in Stoughton v. Baker would protect the defendant in the exclusive and undisturbed enjoyment of all the rights acquired under the grant, for there is no reservation of the use, by the public, of the river, either for passage or fishing. The reservation of carrying places, upon any water communications within the limits of the grant, was intended to secure to the public port ages, had the river been, in fact, navigable. Upon this subject, the public functionaries appear to have been ignorant; and this reservation was either mere matter of form, or was inserted for greater caution, with an intention to secure the right of having carrying places, if, upon further exploring the country, the river should be found navigable ; but, it being otherwise, the reservation amounts to nothing. Ztpha-niah Platt, then, and his assigns, gained a complete right to the exclusive enjoyment of the river, within the bounds of his patent, and to take the fish frequenting it. He and those holding under him have enjoyed this, right, uninterruptedly, for more than thirty years ; and the indictment charges no other offence than that of obstructing the Saranac, by a dam near its mouth.
The indictment is founded on⅝ and can be supported only by, the force and validity of the two statutes, of the 3d of April, 1801, and of the 5th of April, 1813. The tight of others to take fish in the Saranac, above the defendant’s dam, cannot be a public right; for if the river has been granted, above the dam, to Zephaniah Platt, the.right, to take the fish is a private and individual right; and if it has not been granted, yet the right
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has not become public, so as to authorize the entry of any one who may see fit to enter, for then the right would belong to the state. There can be no doubt, however, and so it was stated on the argument, that the lands have been granted to the high falls, beyond which salmon never pass. These statutes do not expressly mention, or refer to the Saranac river ; and the general words of the statutes ought to be construed with an implied exception of such rivers as had been fully and absolutely ♦grunted, without any reservation on the part of the state of a right to control the perfect use and enjoyment of the thing granted. The power of regulating and controlling the use of the Saranac, so as to subserve the public interests, would have been impliedly reserved, had that river been navigable ; but, not being so, the legislature have no greater right to pass laws, directing how the waters of that river shall be used, than they would have to regulate the use of the most inconsiderable rivulet, or streams throughout the state, which have been granted by and held from the state. We are compelled, then, by an imperious duty, to examine and decide, whether the acts in question, under the facts in the case, are warranted by the constitution of the United States. I would premise, however, and it is not disrespectful to the legislature to presume the fact, that they were uninformed as to the terms and extent of the grant to Ztphaniah Platt, and of the conditions and reservations in the grant itself; and that they were also uninformed as to the innavi-gability of the Saranac, or else there would have been an express exception of that river. Had the question been propounded to the legislature, whether they intended t.o invade private rights, so far as to compel the proprietors of those valuable and extensive establishments near the mouth of the Sauniac, with their own hands, to destroy their usefulness, by altering their dam so as to deprive them of the use of the water to any beneficial purpose, when these proprietors had acquired, by a grant from the state, and the law of the land, an ample and uncontrollable right to the sole and: uninterrupted use of those waters, it cannot be doubted, from the high and sacred regard to private rights which the legislature have always observed, that they would indignantly have disavowed any such intention.
Upon a question involving a construction of the constitution of the United States, we have had occasion, in the case of Mather and Bush, ( 16 Johns. Rep. 233 .) to express our sense of the paramount and controlling authority, of the decision of the Supreme Court of the United States, upon that clause in the,constitution which declares, that no state shall pass any law impairing the obligation of contracts. On the ^present subject we have the decided opinion of that court, pronounced in a case analogous in principle. In the celebrated case of Fletcher v. Peck, ( 6 Cranch, 136 .) Chief Justice Marshall, in delivering the opinion of the court, held, that a made by
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the state of Georgia of certain lands, was to be regarded as an executed contract, under the constitutional provision, and that the state of Georgia could not, either by general principles common to our free institutions, or by the provision in the constitution of the United States, pass a law, whereby the estate of those holding under the first grant could be constitutionally and legally impaired, and rendered null and void. The same principle was again maintained, by that court, in the case of the state of New-Jersey v. Wilson, ( 7 Cranch, 164 .) The acts in question do not profess to render the grant to Zephaniah Platt null and void ; but if judgment should pass against the defendant, on the ground that his dam is a public nuisance, it would become the duty of the court to adjudge, that the nuisance be abated ; and thus the grant, under which the defendant holds, would be manifestly impaired, inasmuch as he would be prohibited the use and enjoyment of a valuable and essential part of it. The principle adopted by the Supreme Court of the United States extends as fully to a case whére a materia! and essential part of the grant is impaired, as to a case where it is entirely impaired. The conclusion, then, is irresistible, that the acts in question are unconstitutional and invalid, so far forth as they affect the river Saranac, within the bounds of the patent to Zephaniah Platt.
It is not intended to call in question the power or supremacy of the legislature, to legislate for general and public purposes, promotive of the public good, when acting within the pale of the constitution; nor is the power of taking away private property for public purposes at all denied. Private property may, in many instances, be appropriated to public use; but such appropriations are constitutional, legal, and justifiable, only when a fair and just equivalent is awarded to the owner of property thus taken. In the present case, no equivalent is offered, or provided, for the loss which must-inevitably ensue, upon % compliance with the requirements of the statutes on which the indictment is founded.
I am sensible that the legislature have passed many laws regulating the slope of dams, to facilitate the passage of fish; but what are the particular circumstances of the rivers, in regard to which these laws were enacted, I am uninformed; it may be that they are navigable for boats, and then no objection could lie to such acts. In the present case, the river Sar-anac is not capable of being used as a passage way for boats, or water craft of any kind. It has been granted, and thus has become private property, as high up as salmon ascend. The fishery itself has passed under the grants; the defendants, and those whose estate they have rightfully and legally acquired, erected the dam sought to be altered ; and they have been in the uninterrupted enjoyment of all the rights connected with the dam for more than thirty years. Can it admit of a doubt that the defendants’ rights, growing out of a contract executed
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by the state, and for which a valuable and competent consideration has been received, will be impaired by the demolition of the dam, or an alteration of it, which might, and probably would, essentially destroy an immense property ?
1 have already said, that the legislature would, no doubt, have excepted the Saranac out of the operation of the statutes, had all the facts been known to them ; yet, as it is included under the general terms and provisions of the acts, I am constrained to say that those acts are inoperative, as regards the defendants, on the ground that they impair the obligation of a contract. In coming to this conclusion, we act conformably to the declared opinion of the highest tribunal under the constitution of the United States, whose decision we are bound to receive, as a correct exposition of that instrument,[1]
Judgment for the defendants.
(a) (a) Vide Hooker v. Cummings, 20 Johns. Rep. 90 .