Lunt v. Hunter

16 Me. 9 | Me. | 1839

The case was continued, and the opinion of the Court afterwards drawn up by

Shepley J.

The second section of the act of 1830, regulating the taking of fish in the town of Clinton, authorizes the plaintiff upon the facts agreed to maintain the action, unless the defendants are protected by being the owners of the land adjoining the river where the fish were taken. By the common law, they would have been entitled to a several fishery in that place; but the right of fishing was early regarded in Massachusetts as liable to be regulated and controlled by the legislature, and the individual right was not admitted against such right of legislation. This description of legislation seems to have been introduced irom necessity, and for the sake of convenient regulation by common consent, before any constitutional restriction was placed upon the legislative power; and it was a part of our system of laws, when this State was separated from Massachusetts. Vinton v. Welsh, 9 Pick. 87. The defendants are not therefore justified in violating the law by shewing that the plaintiff could not fish in that place without trespassing upon them. All, which it is incumbent upon the plaintiff to establish, is a violation of the act by the defendants, and his right to prosecute for it.

It is not therefore necessary to decide whether the act of June 14, 1814, is in force and operative upon the rights of those interested ; and no reason is perceived why it should not he so considered. And when there are several enactments relating to the same subject, the rights of those interested in it are to be collected from a consideration of the whole of the enactments.

Exceptions overruled, and defendants to he defaulted.