| Mass. | Nov 15, 1871
As it was not denied that the smelt were taken in a seine, during the forbidden period, by the defendants, it became a very material question whether they, at the time of such taking, were in reality fishing for herring or alewives, instead of smelt. St. 1869, c. 384, § 31. The defendants have no ground of complaint against the instructions of the court upon the subject of their intent in using the seine. The rule laid down by the court, as to the legal presumption of the absence of any unlawful intent, and as to the burden of proof, was also correct, and as favorable to the defendants as they had a right to ask.
It is true that, in the case of an unnavigable stream, the owners of the soil adjoining and under the stream are also owners of the fishery, within the limits of their own land. This right of fishery may be, however, to some extent qualified by legislation. The legislature has the right to prevent the extermination of migratory fish, (as' well as of. useful birds and other animals,) by forbidding the taking of them at all times of the year when such taking would interfere with their breeding and multiplication. Commonwealth v. Chapin, 5 Pick. 199. Vinton v. Welsh, 9 Pick. 87. Such has been the ancient and constant course of legislation
The motion to quash we consider equally without foundation. We have already decided that the proper remedy is by indictment. Smith v. Look, ante, 139. Commonwealth v. Essex Co. 13 Gray, 239. And it is immaterial that part of the penalty goes to the informer. The twenty-fourth section of the statute does not allow fishing for smelt with a seine, within the prohibited period, on Wednesdays, as the motion implies. Nor does the statute require that the commissioners on inland fisheries should be the prosecutors. Exceptions overruled.