Cottrill v. Myrick

12 Me. 222 | Me. | 1835

Weston C. J.

at a subsequent term, delivered the opinion of the Court.

The defendant justifies the act complained of, under certain statutes of the commonwealth of Massachusetts and of Maine. These, it is insisted by the counsel for the plaintiffs, afford him no protection, inasmuch as they are alleged to transcend the constitutional power confided to the legislature.

By the common law in England, fisheries in streams not navigable, belong to the riparian proprietor. In Massachusetts, from its earliest settlement, this principle has been modified. It was deemed most conducive to the public good, to subject the salmon, shad and alewive fisheries to public control, whenever the legislature thought proper to interpose. They were much relied upon, as among the means of subsistence, afforded by the common bounty of Providence, and some regulation became necessary for their preservation. Our ancestors were understood to have brought with them such parts of the common law, as were applicable to their circumstances, claiming, however, and exercising the right, through every period of their history, to change or qualify it. It was competent for the Colony, Province, or Commonwealth of Massachusetts, having a legislature of its own, to appropriate to private use, that which was held in common in the mother country, or to provide, that what is there private proprerty, should here be enjoyed in common.

In Massachusetts, then, by common consent, manifested by legislative acts, and by general acquiescence, the common law rights of the riparian proprietor, yielded to the paramount claims of the public. It was implied in all grants of land, made by them, and in all conveyances by individuals, upon streams through which these fish passed, to cast their spawn. The right of the public to regulate the interior fisheries, is proved both by legislative acts, referred to in the argument, and by judicial construction. Stoughton et als. v. Baker et al. 4 Mass. 522; Nickerson v. Bracket, 10 Mass. 212; Ingraham v. Wilkinson, 4 Pick. 278; Vinton et al. v. Welsh, 9 Pick. 87.

It is urged that the legislature had no right to interfere, except in those streams, where these fish had been used and accustomed to pass. And the acts bearing upon this subject have been examined, and the- state of the rivers and streams, upon which they were intended to operate, have been adverted to, with a view to establish this position. There could be no call for legislative regulation or enactment, except upon such streams, as were so situated as to invite the ascent of these fish, and into and through which from their nature and habits, they were accustomed to pass. Whether it is competent for the legislature to provide for the removal of natural obstructions, or for the erection of artificial facilities, in the bed of a steam, without the consent of the owner of the soil, and without providing a compensation for him, for the ascent of fish, and the creation of a fishery, where they could not otherwise pass, is a question, which we are not required in the case before us, to decide.

The Damariscotta river, a portion of which is under consideration, is fed by fresh ponds at its source, and after running a few miles, empties into the sea. There can be no doubt but alewives, by their instinct and habits, would ascend this stream, unless impeded by obstacles, which they could not surmount. Of this, the present state of the fishery there furnishes abundant proof. It is, however, said, that this favorite and inviting resort for this, species of-fish, was created by the act of 1807, and that it never was, or could be, enjoyed before.

The case finds, that for forty years anterior to that period, as far back as the memory of living witnesses extends, alewives did not ascend this stream to the ponds. It further appears, that diking all that time, there existed artificial obstructions, impeding their ascent. The commissioner, who disclaims for himself, any knowledge, from observation, of their power to overcome obstacles, finds in the stream, natural impediments, which, in his judgment, they could not have surmounted. But upon this point, although objected to by the counsel for the plaintiffs, he received the opinions of witnesses, who had noticed their agility and power ; and if this species of testimony is admissible, lie regards it as proved, that these fish might, and did ascend the stream, prior to the erection of dams, or other artificial obstructions thereon. We hold this testimony to have been legally admissible. The witnesses had acquired from observation, superior knowledge upon this subject. It appears to us to fall within that class of cases, in which the opinions of persons, skilled in any art, science, trade or business, are received in evidence. 1 Starkie, 74 ; Phillips, 226, and the cases there cited.

If then, at a former period, alewives were accustomed to ascend this stream, it was like others, which they frequented, subject to the regulation of the legislature. It is a power, which they exercise at discietion, at such times as they deem expedient. Statutes of this class generally provide for a passage through artificial obstructions, and sometimes grant certain privileges to towns, upon whom duties are imposed. The riparian proprietor may erect a dam upon such a stream, without providing therein a passage for fish, so long as he violates no existing law, but subject to the well established right of the legislature to interpose. No individual can prescribe against this right, which is here held to belong to the public. Obstacles created, may be overlooked or tolerated, but as the country settles, and the fisheries become more an object of interest, they may receive the fostering care of the legislative power.

With regard to the formation of this branch of the Damariscoita stream, at a period beyond human memory, of which some evidence was received from tradition, the competency of which has been questioned, if frotn natural or artificial causes, the stream was, at some remote period, diverted into new channels, through which these fish were accustomed to ascend, in our judgment, so far as the fishery is concerned, the right of public control would attach therein, as an incident as effectually, as if it had remained unchanged.

But suppose the act of 1807 was an appropriation of private property to public uses, it is most clearly proved to have been done, by the consent and acquiescence of Kavanagh and Cot-trill, under whom the plaintiffs claim. They remonstrated against the general prayer of the petition of John Borland Sf als. at whose instance the legislature were induced to interfere ; but it appears that they were quite satisfied with the act, as it was finally modified. We perceive no sufficient reason, why their assent may not be proved by parol. When the constitution provides that private property shall not be taken for public uses, without just compensation, it must be understood to mean, a taking without the assent, or against the will of the owner. If given or dedicated by him to the public, it is rather received than taken.

If this was a case, where private property might be taken for public uses, although it might relate to an interest in land, no. deed or instrument of conveyance from the owner was necessary, the appropriation being proved by an act of the legislature, which is matter of record. He would have a right to such damages, as would be a just compensation. That is an equivalent, which is not itself an interest in land, but a collateral matter. In the case of Clement v. Durgin, 5 Greenl. 9, it was decided, that the right to damage, for flowing land by the owner of a mill, might be waived or relinquished by parol. There is a striking analogy between that case, and the one under consideration.

In addition to the direct evidence of assent by the parties in interest, it may well be implied from their long acquiescence. If their rights were infringed by an unconstitutional act of the legislature, it afforded no protection to those, who presumed to act under it. They were trespassers; and the rights invaded might have been at once vindicated by a civil action. This acquiescence, which continued as long as Kavanagh and Cottrill lived, and the acts of co-operation, which are proved on their part, are ascribed in argument to their ignorance of the limitation of the legislative power. These gentlemen were not native born citizens, but they were merchants engaged in extensive business, men of high standing and consideration, in the part of the country in which they resided, possessed of great wealth, and largely interested in real estate. The sacredness of private property, and the protection which is thrown around it, could not have been unknown to them; and they had it in their power, at all times, to command the services of eminent counsel.

It is said that private property was not here taken for public use; but that it was appropriated to the private use and emolument of other persons. The public had an interest in the preservation and regulation of the fishery, and in the removal of obstacles, by which it might be impaired or destroyed. This was best effected through the agency of persons, appointed by the neighboring towns, aud by quickening and rewarding their diligence by a grant of the profits. It is a course of proceeding adopted by the legislature in many other cases, the authority of which has not been questioned.

If public purposes and. uses were to be promoted, as they undoubtedly were in the case before us, it was no objection to the power of appropriation by the legislature, that it contributed also to the emolument and advantage of individuals or corporations. Many cases of this character exist, in which the legislative power is well established. Of this class is the right conferred on owners of mills, to raise a head of water necessary for their operation, although the lands of others are thereby injured and rendered unproductive. They are bolden, as in other cases in which private property is taken for uses, in which the public are interested, to pay a just equivalent, unless the parties, affected by the flowing, consented thereto, without receiving damage, which, it was settled in Clement v. Durgin, might be proved by parol. And we are satisfied that there is equal reason for receiving the same testimony in the case in question.

From whatever source Kavanagh and Cottrill might have derived title to their land, and by whatever covenants it might have been protected, it was subject to the legislative power, either in the regulation of the fisheries, or by appropriation to public uses, if required by the public exigencies. The proprietors of the Kennebec purchase, if their patent covered this territory, and every successive owner, whether his title commenced by right or by wrong, held the land subject to this power. When, therefore, it was called into exercise, it cannot be deemed a violation of the constitution of the United States, which inhibits the passage of any law, impairing the obligation of contracts.

If the legislature had a right to regulate the fishery in this stream, either in virtue of their general powers, or by the consent of the riparian proprietors, we find nothing in the act of 1807, which may not be regarded as necessary to effect that object. The 8th section, so much complained of, merely authorized the committee, by whose agency the regulations were to be carried into effect, or any other person in their employment, to go on to any land, through any mill, or wheresoever it might be necessary for them to go, to discharge the duties imposed upon them by the act, without being considered as trespassers. All the purposes of the act might have been defeated, if this protection had been withheld. We are not satisfied that any of the objections, taken to the authority of this act, or to any of the other acts, regulating the fishery in Damariscotta river, ought to prevail.

The official character of the defendant is controverted. It is urged that the warrants, for calling the town meetings in Newcastle and Nobleborough, introduced by him, do not appear to have been served according to law; and Tuttle v. Carey, 7 Greenl. 426, is relied upon in support of this objection. We 'cannot regard it as sufficient to deprive the defendant of the protection, under which he justifies. The same objection was raised, and upon the same authority, in Bucksport v. Spofford, which was overruled, for the reasons there stated, to which we refer.

It is said, that the acting town clerks of these towns were not legally qualified. If they were parties to this record, and called upon to justify their official acts, they might be required to show, that .they were legally invested with the authority they claimed to exercise. It is proved that they were in office de facto, in the discharge of the duties thereto appertaining. Upon this point, we hold this evidence to be sufficient for the purposes of the defendant. Phillip’s ev. 180; Fowler v. Bebee et al. 9 Mass. 231. As to the proof that the committee were sworn, we think it com-1 petent, if it w'as necessary that they should be sworn, which is not required by the statute, providing for their appointment.

Upon the "whole, the opinion of the Court is, that the act, which is the subject matter of this act, has been justified.

Judgment for the defendant.