App. Div.] THIRD DEPARTMENT, JUNE TERM, 1903. new trial, which resulted in a direction of a verdict for the defendant at the close of the evidence, and it is from that judgment that the plaintiff appeals. On that trial the plaintiff established the facts herein before stated, and the defendant sought to prove the stocking of the waters by the State in justification of his acts. Errors were committed on the trial in the admission of unproved documents and letters, but this court puts its decision on broader grounds. The vast sums of money expended by individuals and clubs in establishing and preserving private parks in the Adirondacks, and the great interest which the citizens of the State have in their rights to the pursuit of pleasure and health in that region, demand from the court a broad interpretation of the law. The provision of the Fisheries, Game and Forest Law with respect to establishing private parks, in force in 1899, contained in section 212 the following limitation: "Provided, however, that all waters heretofore stocked by the State, or which may hereafter be stocked by the State from any of the hatcheries, hatching stations, or by fish furnished at the expense of the State, shall be and remain open to the public to fish therein the same as though the private park law had never existed. But nothing herein contained shall be construed as affecting any rights now existing of persons owning lands or holding leases of private grounds, waters or parks prior to the passage of this act." For the purposes of the discussion of the case it will be assumed that the defendant proved that the witness Dwight, between the years 1891 and 1894, not being the owner of the lands or having any fishing rights in the streams, and without the consent of the owners, stocked the inlet of Fallensby Junior pond with speckled trout fry procured by him from the State hatchery and hatched at the State's expense; and that he also stocked, in the same manner, with lake trout and speckled trout fry, the inlet of Bay pond, and that such fish were furnished by the State Fish and Game Commission, on his request, they knowing where they were to be placed. Also that the witness McNeil stocked, before 1899, McCollom's brook with speckled trout fry, under the same circumstances and under the same conditions. This state of facts did not, we think, justify the defendant in his trespass, nor authorize the court to direct a verdict in his favor. APP. DIV.-VOL. LXXXV. 17 THIRD DEPARTMENT, JUNE TERM, 1903. [Vol. 85. It will throw light on what the Legislature could do and intended to do in the passage of the parking law to investigate the right of the individual owners of the land and the people at large. As early as the Year Books it was the common law of England that a right to take fish belonged so essentially to the right of soil in streams where the tide did not ebb and flow, that if the riparian proprietor owned upon both sides of the stream no one but himself might come within the limits of his land and take fish therefrom. And the same rule applied so far as his land extended, to wit, to the thread of the stream where he owned only upon one side. Within these limits his right of fishery was held to be sole and exclusive. (Wash. Ease. & Serv. 411.) The right to hawk, hunt, fish and fowl was held to be such an interest in land that if it was intended to be more than a present personal privilege it must be evidenced by a grant. (Wickham v. Hawker, 7 M. & W. 63.) And this interest thus acquired was such that the owner of the fishery upon the land of another might maintain action for trespass. (Holford v. Bailey, 13 Ad. & El. [N. S.] 425.) The soil of navigable tidal rivers, so far as the tide ebbs and flows, was prima facie in the crown, and the right of fishery therein was prima facie in the public. But the right to exclude the public therefrom and to create a several fishery without grant of the land existed in the crown and might lawfully have been exercised by the crown before Magna Charta and could be made the subject of a grant by the crown to a private individual. (Malcomson v. O'Dea, 10 H. L. Cas. 593.) Notwithstanding Magna Charta the king still retained the right to grant the soil under navigable waters and with it the exclusive right of fishery. And this right exercised through the colonial governor and assembly has been recognized by our courts in confirming the title of the town of Brookhaven and other towns on Long Island to the exclusive right of fishery even in an arm of the sea. (Trustees of Brookhaven v. Strong, 60 N. Y. 56 ; Hand v. Newton, 92 id. 88; Rogers v. Jones, 1 Wend. 237; Robins v. Ackerly, 91 N. Y. 98.) In this country the State has succeeded to all the rights of both crown and Parliament in navigable waters and the soil under them. In England Parliament had complete control over all the navigable waters within the kingdom. It could regulate navigation upon App. Div.] THIRD DEPARTMENT, JUNE TERM, 1903. them and could authorize exclusive rights and privileges of naviga tion and fishing. (Langdon v. Mayor, 93 N. Y. 155.) The State through its Legislature may exercise the same power which previous to the Revolution could have been exercised by the king alone or by him in conjunction with Parliament, subject only to those restrictions which have been imposed by the Constitutions of the State and of the United States. (Lansing v. Smith, 4 Wend. 9.) It is probable that section 18 of article 3 of the Constitution would prohibit the Legislature from granting to any individual or association the exclusive right of fishery in any of the navigable waters of the State, for such a grant would be in the nature of an exclusive privilege or franchise. (Slingerland v. International Contracting Co., 43 App. Div. 223.) And if the State had any title to the fish, birds and game on private lands, the Legislature could not give away that title to an individual or association seeking to park a particular territory. Doubtless the Legislature had something of this in mind when by section 277 of chapter 488 of the Laws of 1892 it repealed chapter 623 of the Laws of 1887, which provided that when any territory should be dedicated and designated as a private park all fish, birds and game should become the property of the owner or the person or corporation having the exclusive right to shoot, hunt or fish thereon. But such a grant was not a necessity, for the proprietors of the soil through which non-navigable streams flow have the exclusive right of fishing. As early as the case of Hooker v. Cummings (20 Johns. 90) it was held that in all rivers of the State not navigable in the sense that the tide ebbs and flows (except the Hudson and Mohawk rivers, to which a different rule has been applied by reason of the terms of the grants), the proprietors of the soil through which a stream flows have the exclusive right of fishing therein, applying the rules of the common law of England to their full extent in that regard. This case has been often cited with approval, and has become one of the leading cases illustrating the rights of riparian owners. In Chenango Bridge Co. v. Paige (83 N. Y. 178) the doctrine is reiterated that the bed and banks of a fresh water river where the tide does not ebb and flow are the property of the riparian proprietor, who may use the land or water of the river in any way not inconsist THIRD DEPARTMENT, JUNE TERM, 1903. [Vol. 85. ent with the easements of the public for passage as on a public highway. In Smith v. City of Rochester (92 N. Y. 485) it is said that the Legislature has no more power over fresh water streams of this character than over other private property, except for the purpose of regulating, preserving and protecting the public easements. In the present case there is no claim that the Middle branch of the St. Regis river is navigable for any purpose or in any sense. The plaintiff is the owner of the soil on both sides of the stream, and of its bed, as well as of the various ponds and streams which are claimed to have been stocked with fish from the State hatcheries. Further citation of authority and illustration that when the plaintiff became the purchaser of the land and the beds of the streams and ponds, he prima facie had the exclusive right of fishery therein, is futile and unnecessary. What, then, was the intent of the Legislature in enacting the parking law? Clearly, we think, only to give one complying with its terms protection to his private rights and the right to recover a penalty in the form of exemplary damages in addition to the actual damage sustained by trespass. Article 9 of chapter 488 of the Laws of 1892, as amended by chapter 974 of the Laws of 1895 and chapter 319 of the Laws of 1896, being the law in force when the plaintiff established his park, provided as follows: "§ 212. Laying out grounds for private parks.— A person owning or having the exclusive right to shoot, hunt or fish on lands, or lands and water, desiring to devote such lands or lands and water, to the propagation or protection of fish, birds or game shall publish in a newspaper printed in the county within which such land or lands and water are situate a notice, once a week, for a term not less than four weeks in the county where the lands so described are situated, substantially describing the same and containing a clause declaring that such land or lands and water will be used as a private park for the purpose of propagating and protecting fish, birds and game. Provided, however, that all waters heretofore stocked by the State or which may hereafter be stocked by the State from any of the hatcheries, hatching stations, or by fish furnished at the expense of the State, shall be and remain open to the public to fish App. Div.] THIRD DEPARTMENT, JUNE TERM, 1903. therein the same as though the private park law had never existed. But nothing herein contained shall be construed as affecting any rights now existing of persons owning lands or holding leases of private grounds, waters or parks prior to the passage of this act." Other sections of the article provided the kind of notices and manner of posting upon the land, and then followed section 215, which provided as follows: "§215. Fish or game so protected not to be interfered with.Upon compliance with the foregoing provisions for preventing trespassing or for devoting lands to propagation of fish, birds and game, no person shall disturb or interfere in any way with the fish or wild birds or wild animals while on the premises so protected, except with the consent of the owner or person having the exclusive right to shoot, hunt or fish thereon. Whoever shall violate or attempt to violate the provisions of this section shall be deemed guilty of misdemeanor, and shall, in addition thereto, be subject to exemplary damages in an amount not less than fifteen dollars, nor more than twenty-five dollars, in addition to the actual damages sustained by the owner or lessee." The act did not purport to give the owners of the lands and streams the right to fish and hunt on their own premises. They had that already, and they had the common-law action for trespass against any intruder. It is not questioned but what the Legislature could give the right to increased damages for the doing of certain acts, if it saw fit. The provision for treble damages for cutting and despoiling trees upon the lands of another, and for forcible entry and detainer, was a part of the Revised Statutes before the enactment of the Code, and the power of the Legislature in that regard has never been doubted. It may be said, too, that the Legislature had in mind some public benefit to be derived from the establishment and preservation of private parks. The law was passed at the beginning of the agitation for a forest preserve, the primary object of which was to protect the wild lands of the State from devastation and thereby preserve the waterways of the State. Game preserves could be established only in mountainous regions, and the protection of timber is a necessity to their continuance. There was saved to the State, to remain open to the public, all |