93 Pa. 458 | Pa. | 1880
delivered the opinion of the court, May 3d 1880.
This was an indictment under the 20th section of the Act of 5th May 1876, Pamph. L. 104, brought into the Quarter Sessions under the 27th section of the act.
Recurring then to the statute, in order to constitute the offence, not only must a trespass be committed on the land, but it must be with the purpose of taking fish from a “ private pond, stream or spring.” The important question then is, in what manner must the water be owned and occupied to give it the private character contemplated by the act? The three bodies of water to which “the purpose” must apply, are stated disjunctively. Whatever else be its character or condition, whether it be stream, spring or pond, the body of water must be “private.” In case a running stream flows over a man’s land, and he stocks the stream with fish, he does not thereby make it a private stream within the meaning of this act. The manifest intention is to protect to the owner those fish which were private property, and without the action of the trespasser would have remained such property. The title of a riparian owner of land extends to the middle of a stream, not a public highway. In case the lands of opposite riparian owners thus join, and one of them stocks the stream with fish, he does not thereby make it a “ private stream.”
So if the waters of a pond cover a large surface of land, and one whose lands are covered by a part only of the water, places fish therein for the purpose of propagation, it does not thereby become a “private pond.” The question is not whether he has rights which may be trespassed on, but is the whole body of water private within the meaning of the statute? We think it is
Judgment reversed.