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waters theretofore stocked by the State or by fish furnished at the expense of the State, or which might thereafter be stocked, and it is under this provision that the defendant attempts to justify his trespass. But how stocked? The Legislature could not authorize the State Fish Commissioners to enter upon a man's private fishery, without his knowledge and consent, and deposit therein fish hatched by the State, and thus convert his property to public use and destroy his private rights. This would be the taking of private property for public use without just compensation. One might own a tract of thousands of acres, practically valueless as timber land or for agricultural purposes, and yet of very great value for the establishment of a private park. The defendant contends that the Legislature intended to provide that the act of a stranger, in conjunction with the determination to stock of the Fish and Game Commission, in depositing a few fish hatched at the State's expense in one of the streams on lands of an individual or corporation, should have the effect of dedicating to the public an entire territory, the waters stocked as well as all other waters on the lands, and that the owner and his grantees would be thereafter debarred from converting it into a valuable private park. This would be a more complete destruction of riparian rights than the declaring of a stream a public highway for the floating of logs, without adequate compensation, which the courts have uniformly condemned. (De Camp v. Dix, 159 N. Y. 436; Brewster v. Rogers Co., 169 id. 73.) The owner of a stream could doubtless dedicate it to the public use, as he could his lands to a public highway, but this imports consent on his part and a bargain entered into between him and the public authorities.

Nor do we think that if one pond or stream on a tract of land should be so dedicated to the public by the owner consenting that it be stocked by the State, that the owner would thereby dedicate to the public all the other separate streams and ponds which might be on all the land that he owned. It is true that fish, at certain seasons of the year, pass from one portion of the stream to another. Trout fry placed in a small tributary, as they obtain greater size work to the main stream, and so up that stream, and may never go back to the original water in which they were placed. But this does not constitute a stocking of the main stream. The language of the stat

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ute is, “all waters heretofore stocked." In common parlance the use of the term "waters," as applied to various lakes, streams and ponds on a tract of land, imports a designation of them in severalty, and in such sense we think the term is used in the statute. Our interpretation of the statute is that the stocking of streams and waters, the beds and adjacent lands of which are owned by an individual or corporation, in order to give the right to the public to fish therein, must be with the consent of the owner or one having a right of fishery therein, and that only the particular stream, lake or pond thus stocked is so made public, and that such stocking does not open to the public streams to which they may be tributary, and that this stocking of such a stream by the State and the owners above or below, does not have the effect of opening to the public that part of the stream situated on lands of an owner who has not consented to such dedication, and that the public is not permitted to follow the migrations of the fish and take them in that part of the stream on private lands without the owner's consent.

It is urged that the various laws enacted by the Legislature, with respect to the time and manner of taking various kinds of fish and game, are inconsistent with this interpretation of the law.

There is nothing inconsistent between this public regulation and the rights of individual owners. The power resides in the several States to regulate and control the right of fishing in the public waters within their respective jurisdictions. (Lawton v. Steele, 119 N. Y. 234.) Fish and game are migratory, and those which may now be on private lands may quickly change their location to public lands and public waters. No man owns wild game or fish, even though they be on his land, unless he has reduced them to his possession by capture. If they wander from his premises to those of the public or another, he may not complain of their taking. In public waters and on public lands, this right is open to all alike, and no individual right is trespassed upon by so doing. Fish, especially, form a large source of food supply, and those which propagate upon private property and migrate to public waters may constitute a considerable proportion. That they may not be disturbed in propaga tion, the regulation of the manner and time of their killing is, therefore, a proper subject of legislative action. As was said by Chief Justice SPENCER in Hooker v. Cummings (supra): "These acts

THIRD DEPARTMENT, JUNE TERM, 1903.

[Vol. 85. prove nothing; for the Legislature have, confessedly, the right of regulating the taking of fish in private rivers; and do, every year, pass laws for that purpose, as to rivers not navigable in any sense and which are unquestionably private property."

We have not overlooked the case of People v. Hall (8 App. Div. 15), urged upon our consideration by the defendant's counsel. There were many reasons in that case which called for a reversal of the judgment convicting the defendant of the misdemeanor provided by the Game Law, and the determination of the court could have well been put on those grounds alone. We are forced to disagree with that portion of the opinion which intimates that a private park cannot be maintained under the statute, unless proof is given that animals and fish were actually bred and propagated thereon. The language of the statute is, "devote such lands or lands and water, to the propagation or protection of fish, birds or game." It is well known that when fish and game are protected they propagate rapidly. In the present case the proof is that both have very largely increased since the establishment of the park. A protection which allows natural propagation, we think, meets the requirement of the statute.

We are mindful that this interpretation deprives the public at large, by the infliction of severe penalties for infraction of the law, of the pleasure and profit of fishing and hunting in a very large portion of the Adirondack forest, and gives to men of great wealth, who can buy vast tracts of land, great protection in the enjoyment of their private privileges. The wisdom of the Legislature in prescribing exemplary damages, and making fishing and hunting upon private parks a misdemeanor is not for the court to review. It was within its province to do so if it saw fit. Exemplary damages are no new thing for willful conduct, and the Legislature is constantly enacting that certain willful injuries shall be deemed misdemeanors.

The burden was on the defendant to show that the stream in which he fished had been dedicated to the public. The plaintiff being the owner of the land through which it flowed, it was prima facie private property; and upon the plaintiff showing compliance with the statute he was presumptively entitled to recover.

There was no proof that the stream in which the defendant was

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fishing had been, in contemplation of law, stocked by the State. He failed, therefore, to justify his acts, and by them incurred liability for the penalty in the form of exemplary damages provided by the statute.

The judgment must be reversed and a new trial granted, with costs to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.

In the Matter of the Application of GEORGE JONES, Appellant, for a Writ of Mandamus against THE VILLAGE OF FONDA, Respondent.

NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY,

Respondent.

Mandamus against a village to compel the audit of a claim for injury to property from the closing of a highway, denied.

An owner of property in a village, who claims that his property has been injured by the closing of a highway, is not entitled to a peremptory writ of mandamus to compel the auditing of his claim, as, if any wrong has been done him, he has a complete remedy against the municipality by action.

APPEAL by the petitioner, George Jones, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Montgomery on the 6th day of November, 1902, denying the petitioner's motion for a peremptory writ of mandamus to compel the Village of Fonda to consider the claim for injuries to property claimed to have been sustained by reason of the closing of a highway.

J. S. Sitterly and H. V. Borst, for the appellant.

S. W. Putman and R. B. Fish, for the respondent Village of Fonda.

Thomas D. Watkins, for the respondent New York Central and Hudson River Railroad Company.

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Order unanimously affirmed, with ten dollars costs and disbursements, upon opinion of STOVER, J.

The following is the opinion of STOVER, J., delivered at Special Term:

STOVER, J.:

The application is for a peremptory writ of mandamus to compel the village to audit a claim for injuries to property, claimed to have been sustained by reason of the closing of a highway.

The statute provides that the municipal corporation may, with the approval of the company, acquire, by purchase, any lands, rights or easements necessary or required for the purpose of carrying out the provisions of sections 60, 61 and 62 of the Railroad Act,† but if unable to do so, shall acquire such lands, rights or easements by condemnation, either under the Condemnation Law or under the provisions of the charter of such municipal corporation; and provides for notice to the company of the proceedings.

The claim is made by the petitioner that it is the duty of the municipality to acquire his rights before closing the street. The statute provides two ways of acquiring property by a municipal corporation; first, by agreement with the property owners, and, in case of failure to agree, by condemnation proceedings. Any taking of property, except by either of the ways mentioned, would be illegal, and subject the parties participating in such appropriation to an action.

While it is true that a mandamus should issue where a public officer or body neglects a plain duty, yet the duty must be plain and clear, and in this case the claim is made that there is no taking of any property or rights of the petitioner. It is not quite clear that the court could, upon such an application as this, compel the municipality either to audit the claim or to commence condeinnation proceedings. Each of these acts requires the preliminary determination on the part of the municipality that there was a taking of the property, and that there was a necessity therefor.

*Railroad Law (Laws of 1890, chap. 565), § 63, as amd. by Laws of 1899, chap. 226.-- [REP.

Added by Laws of 1897, chap. 754, as amd. by Laws of 1898, chap. 520, and Laws of 1899, chap. 359.- [REP.