Action of debt to recover the penalty prescribed in R. S., c. 3', § 63, as amended by stat. 1883, c. 334, for erecting and maintaining in tidе waters a weir alleged to be "below low water mark in front of the shore or flats of the plaintiffs, without their consеnt.”
"It is not disputed that the plaintiffs own the section of flats on which their weir is located, down to low water mark, on the sоuth side of Hog Bay, and that the defendant did not, but the State did own the soil on which the defendants’ weir was situated.
The defendаnt admits his weir to be " in front of the plaintiffs’ shore or flats,” and that it was erected there, "without their consent.” But he contеnds that it is not situated within the locality described by the statutory phrase, — "below low water mark” inasmuch as it is on land which is exрosed at low water; and that to be subject to the penalty it should be attached to land from which the tide does not wholly recode — or in other words "under” or "beneath” the water.
In turning through the elementаry books and the reports of decisions, relating to tide waters, for the purpose of ascertaining the common acceptation of the word "below” in the phrase in question, it is almost invariably found to be used synonymously with "beyоnd.” Among the numerous instances is the case of Gerrish v. Propr’s of W. Wharf, 26 Maine, 384, in which the reporter, in his head note, the accomplishеd counsel for the plaintiffs, and Shbpley, J., in the opinion of the court, all used the word "beyond” low water mark.
Moreover, it is made morally certain that the Legislature adopted the same use when their object in view, the mischief to be remedied and the remedy applied, are considered.
The plaintiff owned his fiats down to low water mark, as land and not a mere easement therein. Com. v. Alger,
In view of such an obvious mischief, and for the purpоse oí protecting the owner of flats in the full, practicable enjoyment of his proprietary rights, the Legislature took the subject matter in hand, and provided, among other things, in substance that no one of the public should, upon land whether constantly or periodically overflowed by the tides, in which he had no proprietary interest but over which the State had control, plant a weir the natural operation of which would interfere with the rights of owners of flats. And to make the statute efficient a penalty of $50 for each offense (statute 1885, c. 334) was provided, not, howеver, in the nature of a qui tam remedy — giving the penalty in part to whomsoever would sue therefor (Bouv. L. D.), — -but wholly to the owner as a compensation for the injury to his proprietary rights. Statute 1883, c. 334.
Moreover, the defendant had no right to erеct any weir upon the land where it is. He did not own it. There is no pretense that he ever made any applicаtion for or obtained any license in accordance with the provisions of statute of 1876, c. 78, incorporаted into E. S., c. 3, § § 60, 61, 62 ; without which no fish weir could be ei’ected or maintained. E. S., c. 3, § 63.
2. But exception is taken to the instruction in rеlation to the plaintiffs’ right to have fish come to their weir unobstructed by any weir that might be erected in front of their shores or flats, which materially interfered with their rights, &c. We perceive no prejudicial error in this instruction,— for it was simply giving to the jury the spirit and intended effect of the statute in question to which it was confined. It in nowise conflicts with the doctrine enunciated in Matthews v. Treat, supra, which discussed the common law rights of owners of flats. In the same connection the jury were further instructed that, if thе defendants’ weir did not materially interfere with the plaintiffs’ rights, then this action could not be maintained ; and the jury found that it did,— the correctness of which finding is not challenged by any motion on the part of the defendants.
We need not allude to the question of constitutionality suggested but not argued. There is no doubt that the. State has authority over the whole subject matter, so far as the public and common rights are concerned. Barrows v. McDermott, 73 Maine, 450. Exceptions overruled.