119 Mass. 300 | Mass. | 1876
This is a complaint under the St. of 1869, c. 384, § 19, and it contains the charge that the defendant “ in that portion of a certain pond, commonly known as Pratt’s Pond, in which fishes are lawfully artificially cultivated and maintained, did unlawfully fish, without the permission of Daniel W. Batchelor, the proprietor of said pond.” The defendant moved before the magistrate and in the Superior Court before the jury were empanelled, to quash the complaint, because it did not allege that Batchelor was the proprietor of the pond, or that the pond had been leased to any person by*the commissioners of inland fisheries, which motion was overruled and the defendant excepted.
It appears by the report that Pratt’s Pond was leased to Batchelor, under § 9, by the commissioners of inland fisheries. The lease was in proper form and duly delivered; the lessee had entered under it and complied with its provisions, and the defendant had fished in the pond as charged in the complaint. It was in evidence that the pond was at the date of the lease about forty acres in extent; and that its waters were in part restrained by an artificial dam, and were used for operating a milk The owner of the privilege had the right to maintain the dam and raise the water, as appeared by eeftain deeds which were put into the case. Upon this evidence the defendant contended that the pond could not be leased by the commissioners. But the
Two questions are thus presented and have been argued by the defendant: first, whether the complaint should allege more specifically that Batchelor was the proprietor and the nature of his interest; and, secondly, whether the pond in question could be leased by the commissioners under § 9.
1. It is contended by the defendant, that there are three classes of proprietors who are entitled to the control of the fishery in ponds under §§ 7 and 9; namely, the riparian proprietors of any pond not more than twenty acres in extent; the proprietors of any pond or parts of a pond created by artificial flowage ; and the lessee of any great pond, exceeding twenty acres in extent, under a lease from the commissioners for the purpose of cultivating useful fishes therein. And the defendant further contends that if any one fishes in any pond held by either class of proprietors, he is subject to the penalty provided in § 19.
It is provided in § 18, “ that fishes artificially propagated or maintained shall be the absolute property of the person propagating or maintaining them; ” and § 19 provides that “ whoever fishes in that portion of a pond, in which fishes are lawfully artificially cultivated or maintained, without the permission of the proprietors,” shall incur certain penalties.
It has been decided that a pond leased by the commissioners under § 9, for the cultivation of useful fishes, and thereby set apart and held for that purpose, is a place where “ fishes are lawfully artificially cultivated and maintained ” within the meaning of § 19; and that the lessee of such, pond has the exclusive right of fishing in the whole pond. Commonwealth v. Vincent, 108 Mass. 441, 451. Commonwealth v. Weatherhead, 110 Mass. 175. The question has not been raised or decided, whether the penalties imposed in § 19 can be enforced against persons fishing without the permission of the riparian proprietors of ponds not more than twenty acres in extent, or of artificial ponds mentioned in § 7 ; or what proof, if any, is required on the part of such proprietors, that fishes are lawfully artificially cultivated therein. In the view taken by us, it is not now neees
By referring to the words of the complaint, and to § 19, it appears that the complaint follows the language of the statute in describing the offence. It comes within the rule as stated by Mr. Justice Metcalf, in Commonwealth v. Welsh, 7 Gray, 324, that a charge in an indictment may be made in the words of a statute, without a particular statement of facts and circumstances, when, by using those words, the act in which an offence consists is fully, directly and expressly alleged, without any uncertainty or ambiguity. See Commonwealth v. Barrett, 108 Mass. 302. The offence here consists in fishing in a pond, called Pratt’s Pond, in which fishes are lawfully artificially cultivated or maintained, without the permission of Batchelor, the proprietor of the pond.
It is immaterial and unimportant, so far as the defendant is concerned, or as bearing on the offence charged, how Batchelor obtained or held his title, or to which class of proprietors named in §§ 7 and 9 he belonged. That is a matter of evidence, involved in the proof which the government must offer to show that the pond was devoted to the artificial cultivation of fishes, and a particular statement of that fact need not be made in the complaint. Whether he was the riparian proprietor of a pond not more than twenty acres in extent, or the owner of an artificial pond, or a lessee under the commissioners, in either case, it was the same offence and subject to the same penalties., The lease was competent evidence to prove that the pond was set apart for the purpose named in the complaint, and that Batchelor was the proprietor, without whose permission the act complained of was done. Assuming therefore the construction contended for by the defendant to be the true construction, it is unnecessary to allege more particularly the proprietorship of Batchelor, or that he held the pond under a lease from the commissioners.
2. The remaining question to be considered is, whether the commissioners had authority to lease Pratt’s Pond under the pro
But the term “ great pond,” as used in the Body of Liberties, Art. 16; 28 Mass. Hist. Soc. Coll. 219; in the colony ordinance of 1647; Anc. Chart. 148, 149; and in St. 1869, means a pond of a certain area created by the natural formation of the land at a particular place. The verdict establishes the fact that Pratt’s Pond is a natural pond of this kind, and being in its natural state more than twenty acres in extent, it is within the description of a great pond in § 9. It was not created by the dam, but by the natural formation of the land; and the fact that it has been increased by the dam, does not change its character as a great pond of more than twenty acres in extent.
But the defendant contends that even if this construction is correct the commissioners have no authority to lease this pond, because it comes within the description of § 7, where it is provided that “the proprietors of any pond or parts of a pond,
Attorney General, for the Commonwealth.
But this is not the true construction of that clause of § 7. The words do not bear the interpretation “ any pond or parts of a pond,” which pond or parts are created by artificial flowage; but “ any pond or parts of a pond,” which pond is created by artificial flowage. The word created refers to pond in each portion of the sentence. The provision has reference only to artificial ponds, artificially created, which may be owned in whole or in part by certain proprietors. What may be the extent of the rights of any proprietor of a part of such artificial pond, it is not necessary here to consider.
This gives a plain practical construction to the statute; and it was the evident intention of the Legislature in enacting it, that the riparian proprietors of ponds not more than twenty acres in extent, and the proprietors of ponds created by artificial flowage, shall have exclusive control of the fisheries therein existing; and that in great ponds which in their natural condition exceed twenty acres in extent, but which may have been increased by artificial flowage, the owners of land, covered by such increased or artificial flowage, have no control of the fisheries existing in such pond by reason of the provisions in § 7. Such ponds are public, as provided in § 8, unless specially granted by law or leased and, if leased, the lessee has the exclusive right to the fishery therein during the continuance of his lease.
Exceptions overruled.